Cobbett's complete collection of state trials and proceedings for high treason and other crimes and misdemeanors from the earliest period to the present time ... from the ninth year of the reign of King Henry, the Second, A.D. 1163, to ... [George IV, A.D. 1820]

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From the yarboc Library

lEUini-SIAIIiflRDaVNKHtVtgVERSnY

y

■•-^

State Trials.

VOL. XX.

COMPLETE COLLECTION

• •!.•» « •? J r,

• « s • a a «

. • --. . ^ . • .-OF : • • • • - -• : !•

State

AND

PROCEEDINGS FOR HIGH TREASON AND 01

CRIMES AND MISDEMEANORS

FROM THE

EARLIEST PERIOD TO THE PRESENT tiME,

WITH XOTES AKD OTHER ILLUSTRATIO

COMPILED BY

T. B. HOWELL, Esq. F.R.S. P.S.A.

VOL. XX.

A.D. 1771—1777.

LONDON:

PRINTED BY T. C. HANSARD, PETERBOROUGH-COURT, FLEET-STREET :

FORU)NOMAN, HUROT, REE8, ORME, & BROWN; J.RICHARDSON; BLACK,
PARRY, & CO.; £. JEFFERY ; J. HATCHARD; £. LLOYD; BUDD 6i
CALKIN; J. FAULDER; J. BOOKER; CRADOCK & JOY; R. H. EYANi;
J. BOOTH ; AND T. C. HANSARD.

1814.

* • •

t'^'-.^.-v^

.^iL

ADVERTISEMENT,

IN this Volume the Cases reported in the last FoUo Mdiiion
rftke State Trials are brought to a termination; the Case
•/ Home, p. 651^ being the last contained in that Collection.
After which commences the New Series of Proceedings, con^
Hmung that Edition to the present time.

In order to render the present Work more applicable to
Hme Law Books in which references are made to the FoUq
MUkm, a Table of Paralisl Hmfhrmkcm, exhibiting at
jtrtl nght the Pages in the present Edition corresponding
wilk those of the Folio (fries, is now in compilation, and will be
fublished wUh the next Volume.

Fm. 1814.

»-. • «

TABLE OF CONTENTS

• • •

TO

VOLUME XX.

^u

REIGN OP KING GEORGE THE THIRD.

i&. The Case of JAMES SOMMERSETT, a Negro, on a Habeas

Corpus, A. D. 1771-1772 1

Addenda to this Case • « 1369

H9. Proceedings in an Action by Mr. ANTHONY FABRIQAS, against
Lieutenant-General MOSTYN, Governor of Minorca, for False
Imprisonment afad Banishment, a. d. 1773-1774 » 88

KO. The Case of the Inland of Grenada ; in relation to the Pajrment of
Four and one-half in the Hundred of Goods exported therefrom ;
between ALEXANDER CAMPBELL, esq. Plaintiff, and WIL-
LIAM HALL, esq. Defendant, a.d. 1774 239

Addenda to this Case •; 1387

Sbl. The Trial of ELIZABETH, calling herself Duchess Dowager of

KINGSTON, for Bigamy, a. d. 177(S 355

SS2. Proceedings against JOHN HORNE, Clerk, on an Information in

the King 6-Bench by the Attorney-General, for a Libel, a. d. 1777 651

Addenda to this Case • • 13S9

*«* This is ike concluding Article of the Folio Edition.

COMMENCEMENT OF THE NEW- SERIES.

Si The Trial of JOHN ALMON, Bookseller, upon an Information,
filed Ex-Officio, by William De Grey, esq. his Majesty's Attor-
ney-General, for selling Junius's Letter to the King, a. d. 1770... 803

5M. The Trial of JOHN MILLER, Printer, before Lord Mansfield,
and a Special Jury of Citizens of London, at Guildhall, for re-
prioting Junius's Letter to the King, in the London Evening Post,
of the 19th of December, 1769, a. d. 1770 870

TABLE OF CONTENTS.

Page
Kb. The Caie of HENRY SAMPSON WOODFAIX,^ an InTor-

matioD, filed bj the Attomej-General, for publishiiig Junius'i

Letter to the King, ▲. d. 1770 895

Sb6. The Trial of Maha Rajah NUNDOCOMAR, Bahader, for Forgery.

At Calcutta, in the Fkrovince of Bengal, a. d. 1775 • 9M

567. The Trial of JOSEPH FOWKE, FRANCIS FOWKE, Maha
lajrfi NUNDOCOMAB, aad ROT lADA CHURN, for a
Conspin^ against Warren Hastings, esq. Governor-General of
die Presidency of Fort ^TtHliam in BengaL At Calcutta or Fort
William in Bengal aforesaid, a. d. 1775 • • 1078

.£58. The Trial of JOSEPH FOWKE, Maha Rajah NUNDOCOMAR,
and ROT RADA CHURN, for a Conspiracy agakist Richard
Barwell, esq. one of the MenAers of the Simreme Council for the
Province of UengaL At Calcutta or Fort Wi&iam, in Bengal
afinesaid, a. d. 1775 1186

fl59. The Trials on the Informations whidb, in punuance of an Order of
the House of Commons, were filed by his M^esty's Attorney
General against RICHARD SMITH and THOMAS BRAND
HOLLIS, esqrs. for .having been (haSlij of notorioas Bribery, . **
and thereby procuring themselves to be elected and returned
Burgesses to serve in Pariiament for the Borough of Rindon,
A. D. 1776 .• 1288 ;

•

MO. The Trial of ao ActiM brought by STEPHEN S AYRE» esq.
against the Right Hon. WILLIAM HENRT Earl of ROCH-
FORD, one of his Majesty's most Hon. Privy Council, and
tberetofoie one of hn Majea^'s Princ^al Seeretaries of State, for
False Imprisonment, a.o. 1776.«. 1286

661. The Trial of JAMES HILL, otherwise JAMES HINDE, other-
wise JAMES ACTZEN or AITKEN, (known also by the
name of John the Painter) for feloniously, wilfully, and malici«
ously setting Fire to the Rope House in hn Majesty's Dock Yard
at Portsmouth, A. D. 1777 «.....••...• ^..... 1318

■ \

A COMPLETE COLLECTION

OF

STATE TRIALS,

548. The Case of Jahes Somhersctt, a Negro, on a Habeas
Corpus,* KingVBench : 12 Geouge III. a. d. 1771-72.

Of thia Gate only a Statement of the Pacts,
tnd Mr. HBi^nve's learned Argmnent wen
inMTted ID the former edition of tkis Work.
1 biTe here added the olber Aigumeola, aad
lilt Jud^meut of the Court, from Lofffa Re-
perls, m which is a Note of the Case noder
thcnameof Sammenett againat Stewarl.

0> ibe 3il of December 1771, nffidtTils were
muk k/ Thomaa Walkhn, Elizabeth Cade,

„...._ M__i_._. .1... I a ^ J

* The TCT7 important (natters which thii
OB iarolTcd, Tiz. fir»t, The rigbia over the
pnM «f K negro reaident here, claimed by
MMitr penioo aa the owner of the negro ;
iW. n|jpo9ing such righta to e)Uat, aecoDilly,
Tie uicnt of tbem ; and thirdly. The meaua
•f mfarcing' tbem, were. 1 belieTs, nerer, ex-
apt in this ea»e, made tile lubjecl of a luit at
hw in England. But in Scotland two caaa
of ihi* tort have occurred before the Court ol
Kmiod ; 1, That of Sheildani^aioit Sbeddtn,
• a. IT&6 ; 3, That of Knight agwnat Wed-
4(tli'nni, a. D. 177S— 1778.

or these two cases the followlne reports are
fnnied from the > Dictiooary of Decisions,' lit.
' aare,' *oI. 33, pp. 14,545, e( itq. :

" * NecTO, who hail been boaght in \
fiaia, anil brought to Britain to be tauelit *
trtde, anit who liad been baptized in Britain,
biiinif rUimnl his liberty, againit his master
Rqben Slitd'lan, who had put him on board a
itiip, to carry hioiback to Virginia, llif Liirds
a^'pniain) counsel for t\x negfto, and ordered
BKrnorials, and afterwarila a hearin); in pre
■vriKc, upon the refpeclive cluima of liberty
aul >eriitude by the master and Ibe negro.

>■ But, durintc the hearing in presence, the
•q[ra died ; *o the point wu not dgteriniiied."
VOL. 3U.

mander, lyi ,

Jamaica ; and lord Manstield,aD an apphcation

supported by these sfiidavits, allowed a wrilr

iif Habeas Corpot, direoteil to Mr. Knowlea,

sod re<]uiring bim to return (be body of 8om-

■nenyett before his lotdsbip, witii the cause of

itetainer.

Mr. Rnowlea on the 9th of December pro-
Jnced the body of Sommeraett before lord
MansQeld, and relumed for caase of detainer,
ihat Sommersett was the negro slate of Char

ihat Sommersett was the n^o slaf t
SteuBTt, esq. who bad dehrered E

" Tlie conimaoder of a Tcssrt, in the African
trade, baring ini|iorted a cargo of negroes into
Jamaica, sold Joseph Knight, one of tlieoa, aa
a slave, to Mr. Wedderbum. Kuight was
then a boy, seemingly about twelve or tbirleea
years of age.

" Some time after, Mr. Wedderbum came
orer to Scotland, and brought (his negro aloi^
will) liio), as a personal serrant.

" The negro continued to serf e bim for seve-
ral years, without murmuring, and married ia
the cDuolry. But, afteinardi, prompted to as-
sert bis freedom, he look the resolution of
(earing Mr, Wedtlrrburo's service, who, being
inlbrmed of it, got biih apprehended, on a war-
rant of Ibe Justices of pe:ice. Knight, un hia
eiaminaliuD, acknowledged bis puipose. The
juBlici|f»Hbund ' the petitioner entitled (a
.'■Amglii's services, and. iliat he must continiM
' as before.'

■< Knigiit then appticd to the sheriff of ilie
county, (Perthshire), by jietilion, selling forth,

■ Tbst Mr. Wedderburn iuuistcd on bis con-

■ tinning a personal serranl with him,' iind
prayed the sheriff lo And, ' Tbnl he cannot bo

.... 11. ^f slavery, or compelled

i and lo discbarge Mr.
yelitiifpfr

3]

12 GEORGE III.

The Negro Case.

[4

into Nr. Koowlcs's custody, in order to carry firtnia, and had afterwards brooght him into
bim to Jamaica, and there sell him as a slave. ! Eng^land, whfre he left bis master's service;

Affidavits were also made by Sir. Steuart and j and that his refusinfif to return, was the

two other {rentlemen, to prove that Mr. Stenart j sion of his beings carried onboard Hr. Knowlea'a

had purchased Sommersett as a slave in Vir- ; ship.

** Afler some procedure in this process, the ; in all the ancient nations, and in all the modera
sberiiT found, * That the state of slavery is not European nations, for many at^es. In lonie

* recognized by the Inns of this kingdom, and is ( of them it still remains; and in none of then

* inconsistent with the principles thi^eof ; that j has it been abolished by positive enactments, de-
< the re^rulations in Jamaica, conccrniniif slaves, j clnring it unjust and iilej^al, but gone into dis-

' do not extend to this kin{;^om ; and repelled
* the defender's claim to a perpetual service.'
Mr. Wedderhurn havin{f reclaimed, the sheriff
found, * That perpetual service, without
' wa^res, is slavery ; and therefore adhered.*

** The defender removed the cause into the
court by advocation. The lord ordinary took
it to report, npon informations. Beinj; a ques-
tion of general im|M)rtance, the Court ordered
a hearin(r in presence, and afterwards informa-
tions of new, upon which it was adiised.

«* Pleaded Jor the Master: That be had a
right either to the perpetual service of the
negrro in Ibis country, or to send him back to
tbo plantations from which he was brought.
His claim over the negro, to this extent, was
argued on the tbllowing grounds :

** The productions of the colonies, ever
since they were settled, have been cultivated
by the means of negro slaves imported from
the coast of Africa. The supply ing the colo-
nies with these slaves has become an extensive
trade; without which, the valuable objects of
commerce, now furnished by the plantations,
could not be cultivated. British statutes have
given sanction to this trade, and reco^fnized the
property of the master in such slaves ; lOtli
W. 3, c. 26 ; 5th Geo. 2, c. 7 ; 23J Geo.
9, c. 3.

** The property which, in Jamaica, was es-
tablished m the master over the negro, under

use by degrees, in consequence of many difle-
rent causes. Though, therefore, the maniei-
pal law of this country does not now admit of
this state of slavery in the persons of citiacMb
yet, where for^gners, in that state, are broogfit
into the conntry , the right of their masters ofW
them ought not to lie annihilated.

*' In this case, the master is not insisting §k
the exercise of any n'cforous |)owef8. He o^f.
demands, that he sbail be intiiled to the peiso*
nal services of the negro, in this country, dar-
ing life. His right to this extent, et lemt, k ,
not immoral or unjust ; nor is it even icfio-
bated by the municipal law of this coonlry.
A person may bind himself to a service for life;
Ersk. Inst, hi! l,t. 7, § 62.

" But, in the last place, if this is denied, Ihs .
master roust, at least, be permitted to ooBfd
the negro to return to the plantations, firM
whence he was brought; otherwise he is ]Mf
tirely forfeited of his right.

" Some cases from the English lav-boohs >
were adduced to show, tbat, in Englsnd, ths
master's right of property in his negro remsiH -:
after be is brought into that country ; BaM
contra Penny, 1677 ; Keble's Rep, p. S|
p. 785. Gilfy contra Cleves; 5tli WUEmi ,
and Mary, lord Unymond, Rep. 5, p. I4lf% i
and the opinion of two very erament UwyoH| i
in the year 1729, sir Philip Vorke, then aUsi^ '^
ney-general, and !\Ir. Talbot, solicitor- geosral^ ;.
in these words : * >Ve are of opiniooi that IS i

* slave, by coming from the West-IndiiB^ '

* either with or nithout his master, to

these statutes, and the municipal law there,
cannot he lost by a mere change of place. On

Erinciples of equity, rights acquiretl under the
iws of foreign countries are supported and I * Britain or Ireland, doth not become free ;
inforced by the courts of law here. A right of * that his master's property or right in I
property will be sustained in every qountry * not thereby determineil or varied ; and
where the subject of it may come. 'The status * tisin doth ni»t bestow freedom on bim,
of |)ersi>ns attend them wherever they go ; | ' make any altenuion in his temporal cood
Huber, hb. 1, t. 3, c. 12. ! * in these kingdoms. U'e are aJso of oninini,

*' The law of the colonies is not to be con- | * that the master may legally compel nia H
sidered as unjust, in authorizing this coudition ' return to the plantations.'
of slavery. The statutes which encourage the " Anstceredjhr the Negro : The only litlaaB
African trade show, that the lecislature does which any right of dominion is claiioed Ofsr
not look on it in that light. The state of ' this African, is the institution of the roaaidpal
slavery is not contrary to the law of nations. , law of Jamaica, which authoruEea Uieslavwy
IVriters upon that law have enumerated seve- • of Africans brought into that island, TJuitlr
ral just and lawful origins of slavery ; such as ■ that law, this negro, a child when brought iola
contract, conquest in a just war, and punish- ; Jamaica, while he remained there, was wtk^
ment of crimes. In cases where slavery is au- fjected to the unjust dominion which itgifcs
thorizinl by the laws of Jamaica, it must be pre- ! over these foreigners ; but the municipal law
snnied to* have proceeded on a lawful origin, of the colonies has no authority in thb eountryu
The municipal law of no country will be pre- ; On grounds of equity, the Coon, in soow
sunied unjust. ! cases, gives eflecl to the laws of ether coMh

** A state of slavery has been universally re- ' tries ; but the law of Jamaica, in this instaKib
Mived in the practice of natioDS, It took place will not be supported by the Court ; bscamtt

i

5]

The Negro' Case.

A. D. 1771.

[6

Laid Mam$field chniioff to refer the matlar
tD Ike teermiiMtion of ttie court of King's-
bdck, SMnmeroett wiib sureties was bi>uoci in
nisaiiee for his appearsDce there on the
[day of the next Hilary term ; and his

■ifyHpiPt to tlie first principles of morality

•* SabordinattoD, to a certain extent, is ne*
tmmy ; bat there are certain bounds, beyond
vbidif if any institution, subjecting one indi-
fital to anolher, should go, the injustice and
mlity of It cannot admit of a doubt,
is tlie institution of slavery, depriving
of the most essential rights that attend
ezisieace, and which are of a nature that
not of any equivalent to be ^iven for
ibca. The most express consent, given in a
ffdonlary contract, cannot authoriie tne assum-
m^ of tliese rights, or bind the consenting party
Is sidbmit to the condition of a slave. A stipu-
of tbat kind affords intrinsic evidence of
judue advantage taken, and is therefore

It to Toid the contract.
** Bat, although it were justifiable to admit
if a sbvery proceeding on a title of contract,
t, or of punishment, the law of Ja-
would not be the less unjust. In sub-
the Africans to slavery, that law re-
Mcs no title under any of these grounds.
The drenmstancc, that the negroes are brought
iats Jamaica, is all that is requisite to fix on
IbiB indiacrimiuately the condition of slavery.
It iR, therefore, a slavery established on force
aad osdrpntion alone, which no writer on the
k« of nations has vindicated as a justifiable
of slavery.
** If the law of Jamaica had made any dis-
BCtisB, or required any title to the slavery of
1 ifiian, this negro would never have been
by it to that state. Being a child
he was brought into Jamaica, he could
into DO contract, commit no crime, and
cannot give a right to kill or enslave
cwUrcn.

" The means by which those who carried
dlii child from his own country got him into
Ihcir bands, cannot be known ; because the
bv of Jamaica makes no inquiry into that cir-
coBsiance. But, whether he was ensnared,
ar bought from his |>areDts, the iniquity is the
Siow. — That a state of slavery has been ad -
nitled of in many nations, does not render it
ins anjust. Child -murder, and other crimes
if a deep dye, have been auihorlbed by the
lavs of different states. Tyranny, and all
sms of oppression, might be vindicated on the
Mine grounds. — iNeiiher can the advantages
pnicured to this country, by the slavery of ihe
Mfrues, be heai kened to, aa any argument in
tkii qnention, as to the justice or it. Oppres-
■Mo and iniquity are not palliated by the gain
sodadvautage acquired to theauthont of them.
boi ibe ex|iedieucy of the institution, even for
Ike subjects of Great Britain, is much doubted
•f by those who are best acquainted with the
tttta of the colonies ; and soma culightened

lordship allowed till that day for settling the
form of the return to the Halieas Corpus. Ac-
cordingly on tbat day Sommersett appeared in
the court of King's- bench, and then the follow-
ing return was read :

men of modern times have thought, that augar
and tobacco might be cultivated without tht
slavery of negroes.

*' The dominion, therefore, given by the
law of Jamaica over the pui-suer, a foreigner
there, being unjust, can receive no aid from
the lawa of this country. The modificatiun
proposed of this claim of alavery, makes no
difierence on the merits of the question. It is
plain, that, to give the defender any right over
the pursuer, the pobitive law of Jamaica muat
always be resorted to ; consequently, the ques-
tion recurs, Whether that law ought to be en-
forced beyond its territory ? But a service for
life, without wages, is, in fact, slavery. The
law of Scotland would not support a voluntary
contract in these terms ; and, even where wages
are stipulated, such a contract has been voided
by the Court ; Allan and Mearns contra Skene
and Burnet, No. 5, p. 9454, voce Pactum
lllicitum.

'* The answer was given to the other claim,
of sending the negro out of this country, with-
out his consent, tbat it supposes the (fominion
given over the pursuer by the law of Jamaica
to be just. The negro is likewise protected
against this by the statute 1701, c. 6, which
expressly prohibits the carrying aiiy persons
out of the kingdom without their consent.
The words are general, and apply to all per-
sons witlyn the realm.

** In support of this argument for the negro,
authorities of French writers were adduced, to
show, that formerly, by the lavis of France,
negroes brought into that couutry from tlie
plantations became free. This was their law,
until lately, that, by special edicts, some alter-
ations were made u|H)n it; Denissrt, tom. 3,
V. Negro. On the law of England, several
cases were mentioned, in which different
judges had expressed opinions, that a negro
coming into England is free there ; 1 Salk.
666, Hmhh contra Brown and Cooper ; Shanley
contra Nalvey, in Chancery 1762 ; Har-
grave's Arg. p. 58.

" But the late case of Sommersett, the ne-
gro, decided in the Kin^'M-beuch, in the year
1772, was chiefly relied on, and said to be in
point; at least upon this question. Whether
the negro could be sent out of England ?

*' The Court were of opinion, that the do-
minion assumed over thisi negro, under the law
of Jamaica, being unjust, could not be sup-
ported in tliis country to any extent : that,
therefore, the defender had no right to tlie
negro's service for any space of time, nor to
send him out of the country against his con-
sent : that the negro was likewise protected
under the act 1701, c. 6. [The * Act for pre-

* venting wrongous imprisonment, and u{f:iin*(t

* undue delays in Trials,' more particularly

7]

12 GEORGE III.

The Negro Case,

t»

*< I, Jolin Knowleff, cominfuider of the Tessel
calleil the Ann aud Blary in Uic writ hereunto
annexed, do inust huiubly certify and return to
our present mo^t serene so?ereign the king^ ; that

mentiuued l;elow] from being sent out of the
country a^aini«t his cousenL^The judgmeuts
of the dheriff were approved of, and the Court

* reiuiUed tlie cause simpUciterJ "

I have been favoured i« iili the use of six

* Memorials' or ' Informations,' which in the
course of these tHo litigations were delivered
into the Court of Session. Five of them appear
to have been iirepared by men of very high
eminence in their profession, one for Sbeddan
the negro by air David Dairy mple, aiWr*
wanls a jnilge with the title of lord Hailes ;
two ibr Knight the negro, by Mr. M'Lourin,
aAer wards lord Dreghom, andMr.Maconochie,
now lord Mcadonbank, and two for Wedder-
burn (Knight's maj*ter), by Mr. Ferguson, af-
terwards lord Pitfonr, and Mr. Cnllen, after-
wards lord Culleo, res|)ective)y : they display
a copiousness and variety of curious learning,
ingenious reasoning, and acute argumentation,
intimately connected with the case now be*
fore us.

With respect to < Memorials' or * Informa-
tions,' in causes depending in the Court of Ses-
sion, aud to the general course of proceeding
in that court, see the Edinburgh Review for
January J 807. For the alterations which in
the vear 1808 were made in the constitution
of that court, see stat. 48 G. 3. c. 151.

Mr. Barrington, in his Observations on stat. 1
fitch. 2, (note [j/] in the third edition) mentioned
tliat ''many of the labourers in the salt- works
and collieries in Scotland still continue * glebce
adscriptitii' and cannot be hired without the pro-
prietor's consent." And as to this he referred to
a case in the Dictionary of Decisions, vol. 1,
I). 812. I know not what case that was. In
Morison*s Dictionary of Decisions there are
under title Coalier twelve cases, in all of which
the Ber\ ile condition of the class is recognised.

In the Memorials which were presented in
the case of Knight v. Wcdderburn, tho con-
dition of the coalliers and suiters of Scotland
was considered. 1 will here insert w hat was
said of it by lord Me.aduwbank and lord Pitfour.

*' The defender," observed the first of those
learned persons, ** has mentioned the situation
of coalliers and salteiti as an evidence, that the
law of Scotland is not repugnant to slavery.
It has bren already shown, that although vil-
lenage still existed, although this high court
would even now record an acknowledgment of
vtlicnage, and alihon^h other kinds of slavery
were adopted by the* laws of this country, yet
that the common taw could not be understood
to favour the defender's claim. As long as the
common law acknowledges the law of nature to
be its great principal and rule, so long must it
reject a claim to a right of property iu a man,
or in his labour and industry, founded iu his
being born of a captivt or a criminali or in hit

at the time herein after-mentioned of bringing
the said J ameaSomoiersett from Africa, and long
before, there*wrcre, and from thence hitherto
there have been, and still are great nambera ^

being seized on violently by a third person, and
sold to the claimant, it has, hqwever, been
urged, that coalliers and salters arc living prooiii
of the former prevalence of villenage : it is,
therefore, not unnecessary to bestow a ftew oIh
servations on their situation ; the use of pit-
coal is of so late invention that villenage must,
at any rate, have disappeared in Scotland long
before the working of coal could have become
a profession. Purehas (in vol. 3, p. 88, of hit
collection) giving an account of Marco Paolo's
travels, has the follow lug curious passage ex-
tracted from them : * Throughout the whole

* province of Katai (China), certain black

* stones are digged out of the mountains,
' which, j)ut into the fire, burn like wood, and
' being kmdied, preserve fire a long time : aa

* if they be kindled in the evening, they keep

* quick fire all the night ; and many use thoae

* atones, because, that though they have store
*• of wood yet there is such frequent uae of

* stones and leathes thrice every week that the

* wood would not serve.' The same observa-
tion is transcribed into the Histoire G^n^alede *
Voyages, torn. 9, p. 366. It was one of the
circumstances, which, at the publication of
Paolo's travels, was considered as a proof that
they were fabulous. There is a passage in
JEneas Sylvius' (afterwards Pius 3.) account of
Europe, which shows more directly, that the
use of pit-coal must have been very rare and
very inconsiderable in his time even in Soot-
land. Treating of Scothind, he observes, that
he was here (as a iegnte) in the time of Ja-
cobus quadratus, and enquired about a roira«
culous tree, which had been said to grow in
Scotland : He adds, * De qn& re cum audivimua

* investigaremus [soinorig.]didicimusmiracula
' semper remotiiis fugere,famoiiamquearboreu

< non in S(M>tift, sedT apud Orcades inveniris

* Illud tamen in Scotid miraculum represen-
' tatum est ; nam pauperea pen^ uudoa ad
' tempb mendicantes acceptis lapidibuseleemo-

* syniB gratis datis latos abiisse conspeximus :

* id genus lapidis, sive sulphured sive ali4

< pingui materia, pro ligno, quo regie nuda est,

* comburitur.' it is plain, from this account, thai
coals muat have been ifery rare iu Scotland.
It otherwise would have k!een quite absurd to
take notice of them only as used by beggara,
Beskles, he observes, that they were only used
wliere the country was barren of wood ; and
it is well known, that Scotland was, durincf
the reigns of the Jameses, very much covered
with it ; so there could be very little occasion
for coals. On the other hand, as there are re-
gular records extant, from the days of James
1, it is impossible that villenage could then
have existed, without sufficient evidence con*
cerning it appearing in the acta of parliaroentv
charters, transfers of prapertv, and various
deeds anxNig indivklMisy vkisk ate bawM

•' Xhe Nfgro Case.

.^ kitM m A/ru-a i aoj that (luring all ihe
^A ft.-- .ii'l Xbtif hvlli been, hikI slill is •
tn« .rt.-'l <m ky bU mijttiy's Bubjeuls,
|r<a*>^ !• bu tuBJeity'i colonies or phtii-

* u iH lilt ihenrur* plain, (bat llie pfii*
pm J iiijlliias tliiJ uul comiueiKe curly
«^ lo lute M:cei*e<l tlie rviuuiiia of tl>'e
W9 nileiiis. Tl>e cireurosliiiCffs of a coal •
• 4**«c iuilicatc a virjr tlitTerrnt oiigin.
*(^tfvn >c*> ihM liura adttriptiSii. A coal
to*«a profeaaion whicti iaTuliialarily eni-
Ihs^ u>J. Iikr oilier priHviiitiuna, is regulilcil
lf)*r«coUT laira. Hbicli we more Or leu
*M. anxiliD^ AS It"- iolerra ut' the public
a^^t III rv(i>ire. TlivMatjeaofa coallicr.
•iMh uI lalmurera in any ollirr (irolvsginii,
.jaij iu Duurif excluKvf!, aie liightr ihiin
:3ia i>iirL.iiien receive, lit arqiiirei pro-
-T-, Hd irMDstnita it; wid bas lt(«D tbuiid,
- « E»c of RutherglM, (l->L-iilea SO Fe-
ksfj If*7, iniiileil, as well %s toy oilier
ll^«.(al<B> coansellir ol a burgli ; Uv mim,
i* i^ul rratun. be capable ol' being rieulcil
■1^ or parliament. Thesi> purtiuulars
bwai ctiilmcp, ilial tite condition uf a
I ■« )>ertecdy di&renl I'roni tliHl of a >il-
Tlir art ol wurltilig coal auccesst'nlty
9 iitnig practice lo allaio, and is tirriu-
Ibe bcaUb ul' tliute wlio lire Dot early
It WM, iberefure, extremely
works ttcie beuun to lie set
lb« pniprwiiin UioulJ, in return
_ ^. waives ilifv gave ihe workuien,
Hlfa> boiuiil to continue iu their ser«ice
^it^rte"" «l' y»'»rs, or forlite) accord-
^•eBiid, tlial it was at fir«l ciiatomary to
%vli bouilft fi'om coallien ; Htiil, it it
h^tttsi tlie practice coniinued arier tbe in-
^Mn of parhaiueni bad ■upeneiled tbe

'IhBe'ilNKTvalians.tbe^urtuerliiimbly up-
M«i)t>, (iifficicitU^ uxpUiu any ibiujf parii-
nriB ibotaieol ooallirra. la tbe iiifuncy
*^ni<nticnl inifli are apt tu ailiipl expe-
na lar inawHifc tbe obtlruciinos it meets
^ - ' oiUrt Mils «bicli lliry IVfI, but tbe
L aBcLiual rcmediti uf wlucli ibey itu
~ ' ' I'bui inewpurations and
oux lituii, and uu ib« wlier,
Ml tbp airiulieni cif incorpomliont
' lis liue (uij^nated, In ibe
. tery natural lo seek a curb
orrapiiciouonessof coalliam,
kiaU uaifM, like ibnw: uf many other
I af tioHiiueii, disposed ibem m idlfnera,
- ^i, «v affiicaui^e. AH rettuliiiuos, huw-
-. Irwmd wiiit such liews, are Btideiitly
^iWTvial, aail uever can be construed na
T hraahng liberty ur ulavery. any more
tbe •<• uf iiavij^atiuni or any otbcr lbloi[
' jc laaw iMIura. It Diii;bl Iw pruvd, ibal
«a» a tlitf n iiiii ihe same princi|ile
. The acts 163T, c. 61, and I&ST,

M IIm Mher, iIm ci

nibe '

n pleBjtn W in

A. D. 1771. HO

(UionlDrVirg-inin and Jamaica in America, aoil
Otber coloiiJM ■ml planiativns belongint; lo bis
iiiajpsly in Aiiierit:a, for ibe ueccaMry aupply-
in|r ot'ihealiircsaid colonies suil plaataliooa witk

(lalul«s wvie ever urijed as itittiiulit* of ilaTvry,
TliF same obw rtalioa* are in ijvneral so appb-
c~ble lo tlie Mule of sullen, liul ii is uuneccs-
sarv to consider il."

On Uie pail of tbe defecder it wot arened lijr
Mr. Fer|[Uiaii (lord Pit four,) " Tliere still exists
in this country h species of periwiuil serritude,
(irxbably llie reuiaiiiH of the oriuiiml ' aiiscrip-
' lilii glebte,' ur villeins, wbiah is supparle<l by
Inle sialuies, nuil by daily pmclice. via. TbM
which takes pluce with regard lo the caallier*
and sailer*, where, from the »iii((le cireuin-
siance of enlerini; to work afier puberly, tliej
are bound In iwrpelual service, and sold along
with the wurlis ; and indeed, in our law, ibcr*
are several nlber examplea of persons being
bound ('> servitude during tbeir lives. Tbe act
of parhameAl 1597. cap. J7S, eiiacU, ' That
slark beggars and their bairn* be employed in
common works, and Jieir serrice, mentioned
ill the act uf iiarliameal 1S79, to be prurogala
during ibeir liletimes.' And, ttilboul going
furiher, it is Ihe case with every soldier aud
sailor. tb« former of ivhoiii i* shnt, if lie en-
deatuurs to niube bis escape al any period of
his life, by express law ; and tlie lador is sub-
jected, during the same sjiace by a practice
universally admitted, to be leiied by force, and
Lent agninst liis uill lo the remotesi corners of
tbe world.

" Tbe pursuer is pleased to nr^iic, thai the
coalliers and sattets ate tiut a remains of *jl-
lenage ; and bis arfriiment for tbis is. ibat llie
use of cual in Kcoilaad is sn late a disuovery,
thai it must have taken place lonir after villen-
age disappeared : and tu ui'uve thii, he cites a
passage from Marco Paolo, and annllier from
£iiGa« Sylvius ; from which it would appear,
Ihat these aulbors bad been unncquainleJ with
that mineral, till the former saw it in China,
and the UitPr in Scotland, And ftbe pursucf
adds,) £n«iis Sylrius observes, that coal waa
only Uiied in Scotland where it was barren of
wudd ; and w it is well known ihst, during the
reiifii of the Jameses, ticoliund wurery inuoU
covered wiih wood, there could be very little

>■ Thii circuiiiKlance seems lo he tillle con-
neclol wilb Ihe present i|Uestion ; but the pur-
suer's ui-iioiueolk niipearlo bnve no Tendency to
prove tii..l lliL- stiile of the e<ialliert in ScntlaDd
u mil D lUiiliou^Hrin of lite ancient tilleuage.
By tbe churl, r ubnre reciled. that instilntion is
irucod dowr. to the year 1368 ; and in all pruba-
biliiy it continued a cuniiderable time longer.
Marco Paolo tveut in China abnut 100 year*
before Ibal ; so turrly no inlereore can be
drawn from ibe llalitns being unacquiiinled
wilh cual iu the year tSTO, that ibis mineral
was not diacoveied iu tJcotland before the year
1368.

11] 12 GEORGE III.

negrro slaves ; ind that negro slaves, brought
in the course of the said trade from Africa to
Virginia and Jamaica aforesaid, and the said
other colonies and plantations in America, by

The Negro Case.

p«

* JEneas Sylvius vras in Scotland in. James
the Ist's time. The defendtir does not know if
the pursuer means by the expression of Ja-
cobus quadratus to insinuate that it was in
James tne 4th's time ; but if he does so, it's a
mistake, for £neas Sylvius died pope in the
5th year of James 3, viz. S3 years before
James 4 succeeded; and tberr is no doubt
that his joum^ to Scotland was in James the
Ist's time, probably about the year 1430. He
then describes coal to have been in comoion
use in Scotland ; and it would appear very odd
if there had been no coal- pits in Scotland 60
years before that, to which the charter above
recited brings down the existence of villeins or
nativi.

" The quotation therefore from JSneas Syl-
vius is a proof of the direct contrary of what
the pursuer endeavours to infer from it.

** The circumstance of two Italians being
surprised at seeing pit -coal affords no pre-
auniption that it had not been used for many
centuries in Scotland. It happens every day,
that Englishmen are not believed in that coun-
try, when they describe our coal to them even
at present

'* The defender does not know what the pur-
suer means by asserting, that it is well known,
Scotland was very much covered with wood
during the reignb of the Jameses. As iBneas
Sylvius, who was an eye-witness, declares,
that in the time of James 1, it was perfectly
bare of wood ; and it is exceedingly probable,
that the immemorial use of pit-coal before that
period, had induced the inhabitants to cut down
all the wood, without leaving or providing suf-
ficiently for that kind of fuel.

'* It is needless to enter, with the pursuer,
into the disquisition, whether the state of coal-
liers be a severe kind of slavery or not ; as it is
certainly much more so thau that to which the
defender claims to reduce him."

It is perhaps worthy of notice in this place,
that though the memorial of Mr. Maconochie
(lord Meadowbauk) bears date April S5, 1775,
and that of Mr. I<erguson (lord Pitfour) bears
date July 4, 1775, no notice is taken of the
statute 15 Geo. 3, c. 28, by which aOer recit-
ing that by the statute law' of Scotlaml, as ex-
plained by the courts of law there, many col-
liers and coal bearers, and salters, are in a state
of slavery or bondage, bound to the collieries
and salt works, where they work for life, trans-
ferable with the collieries and salt works, when
their orifj^inal masters have no farther use for
them, it is enacted, that colliers, coal bearers,
and salters, shall not be bound to any colliery
or salt work, or to the owner thereof, in any
way or manner different from what is per-
mitted by tbe law of Scotland, with regard to
■crvants and labourers.

Tbb sutute, it sppetiw, by the Lords' Joor*

the laws of Virginia and Jamaica aforesaid and
the said other colonies and plantatMMis in Ame-
rica, during all the time aforesaid, have been,
and are saleable and sold as goods and chattels,

nal, was passed on the S3d day of May, 1775.
After which, it seems (see Mr. Benet's account
of Dudingston, in the 18th vol.of sir John Sin-
clair's Statistical Account of Scotlabd, p. 370,)
that the coal masters strove to insure the de-
pendenceof their coalliers, and consequently tbe
perpetuity of their services, by seducing them
mto their debt: to remedy which, by stat. 39
Geo. 3, c. 50, among other provisions respect-
ing colliers in Scotland, it was enacted, « That
no action shall be competent for ^oney ad-
vanced by, or on behalf of coal owners or
lessees to colliers, except for snp|K>rt of their
families in case of sickness,' in which case a
specific mode of procedure is provided.

In the negro case in France, which, under
the title of ' La Libert^ reclam^e par un n^re
centre son maitre qui I'a ameoi en France,' is
reported in tbe ISlh vol. of * Lea Causes G^*
l^bres,' See, p. 492, edit, of 1747, and which I
apprehend was determined in the year 1738, or
soon afterwards, the questions before the Court
appear to have been, 1st, Whether the party
claiming the negro was such a person, as, by '
the French king's edict of October 1716, was
permitted,under certain formally prescribe<l con-
ditions, to bring negro slaves from the French
West Indian colonies into France, and to retain
them there : and Sdly, Whether he had per-
formed those conditions; with respect to which
it was provided in the edict, that, " faute par
lea m&itres des esciaves d'observer les forma-
lity pr^rites par les pr6ced^ns articles, let
dits esciaves seront libres, eS ne pourront dtre
reclames." For though M. le Clerc, Pro-
cureur du Roi, did indeed mention, that nei-
ther the .edict of March 1685, nor that of Oc-
tober 1716, had been registered in the parlia-
ment of Paris, or transmitte<l to the proper
officer of the court of admiralty, yet it very
cleariy appears, that he did not lay much stress
on these topics.

But tbe eloquence of M. le Clerc and the
ofher advocates who argued the case expa-
tiated far beyond the narrow limits of the dry
and uninteresting quesiiuns of mere positive
law which I have stated. The powers of their
learning and of their oratory were called forth ia
all their vigour, to describe the character and
narrate the history of slavery, to display its
incongruity with the benevolent doctrines of
Christianity, and above all to impress upoo
their hearers, that slavery was utterly and ir-
reconcilably opposite to the nature of France
and of Frenchmen, and to the original principles
and established administration of their consti-
tution and government ; insomuch, that to
touch the soil or to inspire the air of Franca
was to be free. Thronghout the arguments
this last position not only was undisputed by
either party, but was by all parties either as-
sumed, or admittedi as the inoootrovertibls as-

13J

ne Negro Can.

A. D. 1771.

[I*

ud «fMi Ibe sale thereof hare become and
bRtt, aad are the slaves and property of the
pmthiri thereof, and hare beea, and are

1 — - I - - ■! 1 •

SfftM of a notorious (act. Yet, at the same
im, A was on all sides propoanded and incul-
oAil, with a dilin^enee and copioasness of repe-
MM, which is not commonly expended upon
tkt owinleDaoce of indisputable truths. I hare
fitraetcd frono the rp|M>rt the followiogf pas-
Hirct, whirh, I heliere, will sufficiently con-
n vhat I bare stated. They may also afford
HBuwineDt, if not instruction, bv exhibiting
the complacency— perhaps I should rather say
the triumph — with which, under the reign of
Lnrii the 15th, the descendants of the an-
ciort Franks could rhapsodise concerning li-
krtr:»

'*II s^est toojours regard^ comme libre,
kfm qu'il a mis le pied en France," p. 495.

** D^ qu*an esclare y*' [se. en France] *< a
■ii ie pied, it y acquiert la liberty," p. 504.

" Vig qn'un esclare est entr6 en France,
i de? ieot hbre,'* p. 504.

** 11 faot conclure que Pesctare est derenu
ftrc,«I^ le premier instant de son arrir^en
Fnoce,'' p. 508.

** L'eotr^e dans la riUe de Paris assure le
Busticu, etdevient I'asile, de la liberty.— « £st'
[k. LntetiaJ * sacro-saocta ciritas, qnie pne-
*Wt emnibns libertatis atrium quoddam, asi-
'Iraaqae immanitatis,' " pp. 511. 526.

^Je ne me propose point ici,de porter la
■sbdre atteinte ao plus pr6;ieux de nos biPiis :
je ae pi^tens point enrier, k I'heorenx climat
^ WNN babitotts, cette pr^rogatire ^minente,
stocMe a la eeule entree en ce royaume," [this

Vhnsetecnrs again in n. 5SS.] *' et oui forme

kfsrele plus assort ae la liberie, Jont nous
/ssSmas nous-m^mes," p. 512.

"Je ne craindrai pas d'arouer arec tons les
ismri, qa*on ne conndtt point d'esclare en
Friaee, ct que si tcH qn'im esclare Stranger a
isii le pied sor notre continent, il est g^tifii
de Is rdiert^," p. 520.

** On ne conndit point d'esclare en France,
ctqoicoMioea mis le pied dans ce royaome, est
ratifi^ de la libert^,'^. 595.

^ Testator Benedictns, * senros, qui Tholo-
* nm aufogerant, urbis ingressu ipso, liberos
'aciosetcires,*'*p. 527.

** Ups maximea si pr^cienses du droit Fran-
pb accordent k la seule entr<^e dans ce roy-
:arop, au seul air qu'on y respire, le droit de
b lihert^, ledon de la franchise ; j'ai adopts ces
aaxunes, je leur ai rendu tout IMiommage,
^'elle« 4§xigent des coeurs rraiment Frau*
joii," p. 532.

'* La France se fait gloire de comrouniquer

* Mr. Dnrke (Reflections on the ReroUition
n Fnoce, See. 4th ed. p. 93) remarks, that *< it
*ai is the most patient period of Roman ser-
*jftDde that tbemes of tyrannicide made the or-
diaary exercise of boys at school — * ciim pe-
ns* iceoa classis nnmerosa tyrannos.' " The
&as is in Jartnalt Sat 7, t. 151.

saleable and sold by the proprietors thereof aa
goods and chattels. And I do further certify
and return to our said lord the king, that Jame«

le beau privilege d'affrancbisseroent k tous les
esclares, lorsqu'ils entrent dans ce climat hen-
reux, dont le seul nom r^paod de toute part la
bonne odeur de la liberte," p. 539.

"II n'est point d'esclare en France ;.DOf
constitutions, nos usages ^tendent la farenr de
la liberie k tous les hommes en g<Sn^ral qui
Pbabitent," p. 539.

** II ne peot y avoir d 'esclares dans ce roy-
aume, il soffit m6me d'y etre eubli, ou d'r
faire sa residence, pour acqu^rir le bien pr&
cieux de la lilwrt^," p. 544.

'* Nos privileges ont elfar.^ jusqu' ^ I'id^ de
I'esclarage en France,'* p. 546.

" II n'y a en France aucuns esclares ; et
la contume y est telle, que non seulement les
Francois, mais aussi les etrangers, prenant port
en France, et criant France et Liberli, sont
hors de la puissance de celui, qui la poss^doit,**
p. 549.

*' La France, m^re de liberty, na permet au-
cuns esclares," p. 549.

** Les esclares ont en France le pririlbge de
se remettre en possession de leur libeni, an
moment qu'ils sont entr^s dans les terres de ce
royaume," p. 551.

*' De terns immemorial Pesclarage n'a
point lieu en France, et I 'esclare ^tranerer de-
rient libre, aussitdt qu'il y aborde," p. 551.

" Donter si en France un homme est libre,
si un esclare acquiert sa liberty par son entree
en France, c'est attaquer I'autorit^ aoureraine
de nos rois, et faire injure ^ la nation,*' p. 498.

To these may be added the following mors
early authority :

'* Toutes pcrsonnes sont franches en ce roy-
aume, et sitost qu'un esclare a attoint les
marches diceluv se faisant baptizer, il est af-
franchi." Institutes Coustumi^reS) (published
at Paris in 1679) p. 2, cited by Mr. Barringtoa
in bis Obs. on stat. 1 Rich. 2, where he has col-
lected some curious particulars, relating to slfl-
rery.

Bf . Tribard, who pleaded against the pre-
tensions of the negro, admitted aud maintain*
ed the proposition that there were no slaves in
France, as a general rule ; but contended that
the case of negroes, belonging to French West
Indian colonists, was, by the eilict of 1685^
specifically excepted from its operation.

" Si en France," says he, ** on ne conndit
poiat d'esclares, si la seule arrir^^e dans ca
rovaume, procure la liberty, ce priril^ge cessa
k r^rd oes esclares n^gres Fran9ois : quelle
en est la raison? C'est qu'en France, c'est
que par une loi de la France meme, les esclares
n^gies da nos colonies sont constitu^s dans un
esclarage n^cessaire et autoris^," p. 529.

After noticing an * Arret' of the parliament
of Toulouse, reported by Bodio, he proceeds,
*■ Quel peat 6tra I'effet, quelle peut ^tra Tin*

I5J 12 GEOnCE III.

SomineTieU, in the said writ hercDDto nnn«ei]
named, it a nfCTo, and a niliTe of AtKca ; and
that the uid Jantcs Kommeraelt, tong^ before
the coming of llieuiil nnt to me, to wit, on

n 61itqi]i deux

The Ncgra Case. f 16

tbc IDlb day nf March in the year of oor Lord

waa a ne^ro alart in Africa alnresBid,

and afterwarilB, to nit, on llie satiie day and

y^er lait aforeaniil, being siich negro slave,

duciioD de cet arr6t, r\

aitclea aprii, pour k

<tBl, ]es ta^<^ea ct la piiiissnce de la naliou, » j

ttabli une leriiiuile uCceMnire car cette parlie

de» iujetBduroi?" |i. 531.

Again " Voilii done la teiile induction, uni-
quement pai: rapporl ani firaugera, el aux
a»cla<reade« «irangers," p. S97.
i"'Ituiuiitbe cnnfe«scd tliat llie pleading of SI.
Trihard wa« not >cry cnutincing. Of the style
aud co^«Dcy uf bis nrguTnentation the ful-
loiiinic nbturd faJEc anil despicaUe common

f laces may siifli(.-e as aatnpleH : " Ceux t|ai
iul'oriuue de la guerre amuji^issuil nux vain-
qururs furent appelltii eivlaves, icrci, liien
UMiiisil leraiendo, qu'ii ttrTnuilo," \i. 514.

*' Neijue enim libertas tulior ulta est, qiu^m
Amino serrire bono," |i. UK.

Judgment ira's giieu fur ihc Negro.
Tiie 6'oife A'oiV, as it trMscallcd,ir3san edict
bearing date in Alarcli 1G85, nliicli was Isourd
by Lewit the 14lh. It coiiliiini varioDs regu-
laliqiu rfE|irctiuK llie roniiitinn and Irealntcnt,
the rights and duties of negni sliicii, end freed
MTgroea, and of tlie Kreocli Wett Indian <.-ol»-
nieD.* This ' Code Noir' is citetl in llie plead-
ings ill tlie net^ro case reported in tlie * t'ansea
Ci:lelires ;' but I do niit pTcnre that it at all
COiiceruH that particular easr, except in so far
as it recognizes, nud e.tlabliiJiea the i/(i(uii of
alavery ; iin wbicli aeenunt indi>eil mucli re-
liance was placed on it in itic pli'ailiii;;s Ibrihc
party irliu claimed to be •inneriif thi' lu'gro.

Ill Oclnlwr iriO, li-wis the l.^ilb pnllisht^l
■n edict, * conccrnant Ics niclaves nr'^^icsdcs
eolonifs,' hy wliicli, alter recitin:;, iiiUr alia,
" conim'' nous avons vid infiirmd^, epic plii-
■ienrs lialiilans <lo niM isles de TAnitriquc d^-
rircul enioyer en France <pielques uus de icur*

* In Air. Ilargrave's Arguii-ent in the text,
this eilici n said to have been made in Muy
IGQj. bill ill tlie copy of tlieeilict trliicb ia iii-
tertcd in the 13tli vuluini: uf the " Causes C^-
Ifl>res," the date is tn ice iiieiiiioiied to bu Marcli
1685. Inlliatrntumcihe edict lies n tbe ful-
Inwing lille, " Le Code Noir ou Kdil du Itui
•ervant de r£glement pour le uouTciiiemcut et
radininislrattnndelajiislii'eetikiiolicedcB Isles
Fraii^'«i$es de I'Anicriqnu. et pour la diKcipline
et le cuniincrce des no;:reii el esclaien daiiH le
dil pays." In the preiimbk' tlieobjerla of the
tdict ar« ststed to be " y mainleiiir la dnciplins
tie I'iighse ciitliolii|iie, apusl«h<|ue, el rouiaiiie,
•> y nigler ce iiui oonccrne I'eial el la quslilc
de nos envlaveii datia nu* diles itiloii." And ac-
cordingly all its proiistuiis relate to thecnncrros
of religion, of alaiet, or of freed jierMins. In
Ibe mnnlb of AugUBt, liiUS, the king issued
•nolbcr edict fur the eiiuiblhihiueui of courts
of jutiice in St. Domingo,

eaclares, ponr lea conflrmcr dana les inslroe-
liops et dans les fxercicea de nntrc religion, et
pour lenrfaire apprenih'c q<ielque art et niftier,
dont li-s colonies recefroient bi'aiicixip d'ulilitd
par le relour de cea esclaves ; mais que cea
hiibitans craignent que les csctoTes ne prClen-
dent tire libres en arrirant en France, cc qui
pnurrnit causer aux dits haiiitBusnneperle con-
siderable, atlesd^tounierd'uiiubjet aussi pieux
et luisi utile ;"

" Le Itoi ordnnne que *\ quelqucs una dei
hahitans des colonies, ou ilea officiera employ^
dans I'olat veitlent amcner avec cux des es-
c1avesn<^gret<le I'unondel'iuitTesexe, en qua-
lity lie iltunestiqueB un antremenl.poiir lc<for-
lilierdDDsta religiun, ^. leH proprietairecscront
tcnus d'en olitenir la perinisstiin ite« goiiTerit-
cnrs g^iit-ruux on rouiinanduiiB daoii chnque
isle, lr.i{iii'!le permission cuiitiendra. le noin do
prnprielaire, celuidesescliive«,leur ilge,et leur
signal emenl.

~" Lps pmprlf'taircs de* dils eirclaTea veront
pa rritie merit obliges de fairo ciirpgistrer ladilo
(lermisiiion an grrtTi- di' la jurisdidion dii lien
deleiir r(:iidei:i-« iiv.-iiit !eur i'c|<iirl, etencelui
ite ramimui^ du lieu >hi ri(''i:in>iiement, dans
huiiaine apiis I<-ut nrrii I'a en I'Vunce."

Tbe eilict next proceeds to eslabliali corres-
pondent reguLtinns for the case uf negro hUvea
whom llii-ir uwuers shall send under the care
of other pemaiM fi-om llie culoiiiea tu France.

It iIhiii iinlaini ib.it regrim sci by their
owners brnngbt or aeot into Franco aliall nut
by reusou iliurcuf acquire any right to their
Ir'cedom, but nhall he coinpeUBble lo return lo
the colonies at the will of their owner* : it in pn>-
vidnl bowerer, that in case tlio onuers ha*«
lu^lcclk^ tu comply with tlie prescribed regula-
IJoiiH, tlie negmeii shall become tree, and Iba
uwiiera sball lose all property in tbem.

The remainder uf the edict does doI affect
the case liclbre ua,

nir. Baron Maicrcs (Ilislnriie Anglicannj Se-
lecla Monumenta, pp. 13, 3U1,) oliserrea of a
passage in the Encomium Bminie that " it plain-
ly xbeH'stI ml there were at this lime in Uenmnrk
Kei'iml men in astute of sla>ery, called in tbia
|Kis>iigeM'7i't .- and otberstbat were I'reed-men,
firlhni, ufler having been slaves, bnd been mad*
free, it icnit tilrili ; and a Ibiid sit of men
nhn liHil alwavH \<rvn tVt-c, but were nut mible,
and ubo are 'in this pasii^igu cnlleri ignoHletf
and priibably were the hiitiliiiiTihiieii and tiamly-
crafisiiien uf the coumry ; aud, liKtJy.a fourlll
Rcl, who were colteil nolitenien, uubiffi, and
u bo si'eni til have Ik^cu the warriors, nr mili-
tary part nl' ihe people, and who niusi hare
been lery nnoieroiis, since bI) the whn^rurmj
of Caniile the Daue, it hen he invaded EnglaiM
after tlie death of Ling Swein, his father. It
said to have been compoMil of men of this clan,

TAe yegro Case.

■ twgfc* in Uie Gouree uf ibe saiJ trade u
■ MCMMVe from Africa aforesaid to VirginJB
rfewni^ to be ibere Eold; and aftcrwarda, lo
«il,MtlM 1st ibjr of Auguu Id the year last

•■M* wm emit nobilea.' And Ibe people
rfftgl^nil were, probably, at ihiaperiud dis-
tifMhvl iaU differenl ciastas of nearly tbe
■M Iml*- At teail, it it rvrtaio, tbal, before
•• Ihniui ConqueM aa well ai after It, the

Sboiltr of the cott«|;en and li a ndy craftsmen
M fibclumithi, millero, and cart-irrigbla)
nirj vtllafea were alares, or what our utd
ba baoln oUled ' rilldtii regardant,' or belong-
iiftoliie manor, or serviodscriptitii gUia,iud
«fR alienated, as sucb, by name, togelber
m4 llieir fatiiiliee, and all tbe goodi anilcbal-

tranicribed from Ingul-
|tai ft Branl Dlade by Thorold in tbe year
Wl to UM «l>b<<y of Crowlaod of >• totum ma-

, (ud elvvEa others)
MH, mm omoilius lioois et calaliia,' qiicc
Mmt m •tidft Tillii, et in campis ejus, ei in
MOKic, mbsqiK uUo de omnibus rctioemeDio."
Aru Wales, Rowlanil*, in recnuating the ob-
Mmtina> respecting tbe " true staLa and con-
J-|i«*f ibe Brititb gorernmeDt," and of" the
- -'M Bntieh leiiurea, and the former cus-
M aad iMHVea thereof," which be bB<1 col-
• n>d fron Uioio materials uf information,
vbcJi " our own careleai neglect bad omitted,
bet, *• • jual reproach to our wretched osci-
^urj aail nrmiunMi, the covelousnesa of our
»■» wwchf'iil conqueror* took care lo record
*Mt fumarte fat us ; that ia ihe Eo^ilish mo-
aMitl,wtiaii ibry ({otlhemiehea FFlsed of Ihe
h«fi— iuiwfuur British royalties, and fouod
u ■aJc lUemteltea intilled or interested by
4«M ar oviiqueal lo tbe ancient re vena es of
■e BntUh prineei," says (Mona Antiqua
BMHsMa. 410. Sd ediliou, London 1766 ; Ihe
baer vMimm wat pnbhxheil in Dublio, in
IM, Ih* JFMT of tbe anibor'a dealli :) " We
r '.J, that Ihe tenants of bond-lands and ill-
if^ ac tliay were of a qui>lity below and
'<nar to fraeliolders, so Ibey were obliged tu
.:>*Mr drailgerirs, anil employed in more
-•lie work*, and were to be diKjiosed of in
iitj Uiiagi, at ibeir lords and princes pleased
jic them. Aud of llicae suiue were free
-iitia, and anmo pure natirei. The free na-
Lfi*. I lake lu be Ihoae, ivbo had some degree
•(fiecJutn, who might ki> where tliey wunid,
m^t buy anal acll, and had tuany immun* '
■ *(s( tbey werecallcd)

<t a« lliev liste<l. And
'isenber lu hate mel, in air William Gruf-
•I's' bewk, with an abstract of a deed, where

' nawtamU, »peak>i)||i>l 'l>^o1d returns aud
r^aa which had been mid* by jurors to tbe
I of coijuiry irilo taourea,

nuxx.

aforeaaid, the aaid James Sommer«ell, betiq>
aod continuing such negro slate, was told io
Virginia aforesaid to ons Charles Sleuut, enj.
who then was an inhabitant of Virginia afure-

ihe natives of tbe lownsbip of Porlhoethwy,
many years alter the lime of the British

Ktinces, were sold a^ part of tbeeslnle of those
inds ihey belonged lo ; and of wbiob, and of
others of that aiirl I ha*e giren elsewhere large
inslmoea. And 1 hare by meacopyof iujuoc-
lion, issued out by Henry the seventh, king of
England, commanding escheators, end all other
minisiei'ial oiGcers, to see that Ibe king's nalite
Icnenla kept wllbin tlieir priiper limili ; and if
any of them were found to stray and wander
from tbeir home, to drive iliero back, like
beasts to their plofolds, with the greatest
severity."

And in a book intilled Beauties of Rncrland
and Wales, toI, irii, by the Rev. J. Evans,
8vo, IBia, 1 have met with the following pas-
sage :

*■ Among the boons bestowed u|H>n tbe cor-
poration ot Beaumaris, tio late even as tlia
fourth year of Elizabeth's reigo, the following
grant appears: ' All and sioKulur tbe king's
' luiids, lenemetils, and berciliiamenis in Bodi-
' new, aodhis villagers (culiirelors) in (be same
' town, if any be, with their offspring.' But
this was probably no more than an eieinplift-
calion of a grant, madj lung before, by way
of conRrmatioa.

■■ The fallowing is one, out of three docu-
ments, Bilduoed by Ur. Itowlands. ' Edynfed
Vychsn ap Edynfed, alias diclus Ednyled ap
Arihelw 01 Uavydd ap Grutfyd et Howe) ap
Dsvydd an Ryryd, alias dictus Howel ap Ar-
ihelw uz Uavydd ap Gryffydd, Ubtri lenentea
D'ni Regis villcc de Rbandei Gadog, Sec. de-
dimuB et confirmavimus Wilhmo ap Gryf-
I'yild ap Gwilim armtgero et libera tenenti de
Porlbainet, ice. septem nalivos nostroB ; viz.
Howel ap Darydd Dew, Malln ap Uavydd
Ui^w, Jevan ap Etau Ddu, Llewelyn ajt

t ap Sit

Dew, Howet ap Slatio ap Davydd Dew, et

Sec. says (p. lao) '* For what light we have
from these records, wo ought to be much
obliged to the generous care aud industry of
that very worthy and deserveitly celebrated

Cersiin, sir William Grulfydd ot Peoryhon,
night and charoherlain of Norlh Wales ;
who preserved these records from perishing,
by collecting so many ol them ns he could re-
trieve from moth and corruplton ; and then
causing those scatlereil rolls and fragmenla
whichlie oauld meet with, to be tiiirty wriilen
by one JenkyoGwyn, iu two large booki of

EiaTchmrut, lor the informalioo of posterity.
>ne whereof is that bunk, bupl always m the
Chaniberliiin'* office, cbW by ihe name uf the
Extent of North Wales ; and the oilier ha
transinitled into the Auilitor's uffioo at Louden,
where it is preserved to Ihu day."

. "^trc

<«.<. >«*•«>

IV S'esTo Case,

[SO

t

IW

• A-i**

nanaaiiaed, enfrancbisetl, wt free, or du«

.nia^^vJ ; lod tbat the same James Somroer"

wu. 90 bciDZ the negro slmve and property of

«iiv^ 7«f».'a a.m tUc »aid Charles Steuart, and the laid

^ "^u . '«iK- -'an ?vr-im ^•{UkIia
. , ..,««..•»• »*»*.•« »iiui» MC 'tiiii/oas

. .^ -.^. .** X ^W5*v ^ iiiutu t»fuif\d ap

,•* i,.;v> .•- i>9*:»*i4us *a».afwr]ie-

^ •.v.tt V, '.Mi x.iJ.i«i..' Ga»i*»C. iO die

N . :v«: V ye ' i>faii;.ef. 5cc/ it is slated
*K.. ■ .» :ic ♦■.•N«''x /ans cr'EciiUDd.if some
«M .t» i -. 9..-.U .*•- '.s^i. xu u^uji coDilitioD is, to
.4. v.- A.1 'i- j.'K':tJi...vs up<ia them, male and
MSti:.'.c. ' r. > ici vfT.i^T denominates '-an
c-.t-cvi ..• i- a j^^erip^ projl' of persons be-

l>e .»':o!e ot" Mr. Burcott's sixteenth chap-
1^ ^r.ca';>c- Oh the Criminal Law of Scol-
1.1 .K-' :3» 1 C'.ni'.inentary, cx'eniliiin' throu«;b
sc««r.:t% -i'n«* iiopa^.*, upon the ^ Act' (already
boIavO) * tvr preveLi:in^ wron£;ous imprison-

* meui, aud a^aiust undue delays in trials'
(chap. c> « f tite eiirhlh and ninth sessions of king;
^\ iiliaar:! |-:irliaixic*ut 1701). He says of it
tb.it it coii>|>i!$t:s(in some respects with (greater
•tvnritv to the Uberty of the subjects) the pro-
vi>ion<* of all the several statutes which the
lekfislaiure of Eusjland has passed for the per •
•i>nal ht^rty of the subject, and that therefore
it justly may beteimed the Ma^na Charta of
K'Oilaiid. Ai d in the case of Andrew against
AJurdiH-h, the lord justice clerk, Hope (now,
181'.Mord president) said •* Our Act 1701 is
grvatly more favourable to the liberty of the
unhjec't in every respect than the IJalieas Cor-
|>us .\clof Euj^land."

Of a law thus celebrateil, the provisions will
ataturaily excite in the mind of every lover of
Lis country a warmth of interested curiosity.

The enactments of this statute are numcrou*,
•xteuNive, and minute. The statute itself is
Ihen'fore very lonir. I recollect not any ac-
count of it in'Mr. Lain&f's History. Mr. Bur-
uelt exhibits a brit- f history of its origfin, and
analysis of its provisions ; which I will sub-
slit nte for the copiousness and particularity of
the act itself.

** The ConTenlion of Estates of Scotland, in
the >(*»<' 1()89, declared, anion^^ other thint^s,
that,* * exact iif^ exorbitant bail, and imprisoning

* |M'rson>' wiili'iut ex])ressin^ the reason liieie*
' of, uii<' !elu3 in^ to put them to trial, an* cnn-
■ trnry to ihe-kuown laws, statuten, anti freedom
' of the realm,' and the redress nf this ihry
claimed as their undoubted rit^ht aud privilege;
And further, * that no declarations, doiii^fs ur
' proceed infifN, to the prejudice of the people,
' m any of the said premises, ought m any

* ways to be decisive licreafter in consequence
< or example.' These grievances, in a sub-
■equentietter to the king (1689» chap. t7.) the

estates prayed his majesty to redress by whole*
some laws in his first parliament.

*- f n the first parliament, accordingly, most
of these grievances were re«lressed, and parti-
cularly, the exacting of exorbitant bail, impri'
i soniog persons without expressing the cause,
: and delaying to put them to triai,'by the well
known sutute 1701, cap. 6, which the people
[ in this part of the united kingdom must view as
I one of the greatest benefits conferre<l on them
' by the Revolution, whether it be held as a law
declaratory only of their fornMr rights; or as
introducing provisions in f iivour of the subject,
which had not previously been either so well
define«l, or observed in practice.

'* The objects indeed of this statute are of
the first importance to the security and happi-
ness of every individual of the community ;
inasmuch as the injury of unjust and illegal
confinement, h iiile it is' often the most difficult
to guard against, is in its nature the most op-
pressive and the most like!}' to be resorted to
by an arbitrary government. Some have
thought that unjust attacks, even upon life or
property, at the arbitrary will of the magis-
trate, are less dangerous to the commonwcidthB
than such as are made upon the personal lilierly
of the subject. Without accusation or trial to
bereave a man of life, or by violence to con*
fiscate his estate, would be so gross and noto-
rious an act of despotism, as must at once con-
vey the alarm of tyranny throughout the
whole kingdom. But coutinement of the per-
son by secretly hurrying to jail, where the
sufferings of the party are unknown tir for-
gotten, is a less public, a less striking, and
therefore a more dangerous engine of arbi-
trary government. (Blackst. Comm. book 1,
chsp. 1.)

*^ The statute proceeds accordingly on the
preamble of the previous declaration by the
Claim of Right, and the interest which all his
majesty's suhjf cts have, * that ilic liljcrly of
' their persons be duly sernred ;' and contains
in its enactnititt almost every proviMon, i«hicb
has at any period, or almost in any s\steni of
law, been deemed most conducMve to the per-
sonal liberty of the subject ; m toe hauie time,
it inlro«luccs regulations mid » xeeptions, which,
while they are the best calcubted to ensure
that object, render it nowise inconsistent with
the safety of the public.

'* It sets out by providing arainst the first
steps towards an illegal confinement, the ap-
prehending of the |>ersons without a regular
information and a special warrant, and guards
against any continemcnt, tbiU is not necessary
to ensure the attendance of the party on the
day of trial. In the next place it declares
what crimes shall be bailable, and directs the
sneediest mode of finding bail ; and to preYent
toe possibility of any vsgue discretion being

81]

The Negro Case.

A. D. 1771.

[S9

Chakf Steuari baTing^ occasion to traosact

enuin iffairs and business of bim the said

Chiriei Sleoart in this kingdom, be tbe said

Chsrkf Sieuart, before the coming of the said

writ 10 me, to wit, on tbe first day of October

bikjearof our Lord 1769, departed from

Awrica aforesaid, on a voyage for this king-

km, for the purpose of transacting bis afore-

■d affairs and business, and with an intention

aretarn to America, as soon as the said af-

6in and business of bim the said Cbarlea

Snart in this kingdom should be transacted ;

in 6zing its amount, which might
Mat the whole provisions of the law, it as-
eotaios the mojclmum of bail in each case, ac-
cording to tbe rank of tbe person in custody
|br trial; and imposes biffh penalties on the
ji^ who shall delay modif^mg the amount,
m rerose to accept of sufficient bail, when of-
frrcd. The act, however, would have been
pally defective bad it stopped here, for of
vbtt use would have been the precautions al-
Ridy mentioned, if in cases either where bail
eoulii not be found by the party entitled to it,
a* wben it could not be received, owing to the
Uare of the crime, the person imprisoned
■i^ be wrongously detained, in consequence
rf a delay in puttinflf him to trial by a certain
dij; tbe act therefore directs, that in such
e»N, the party shall have rij^lit to insist, that
vilhiD a certain lime a diet shall be fixed for
\k Irial, and tbe trial carried through and con-
dsdcd by a determinate day, other%vise he is to
WkI at liberty, under the |>pnaity of wrongous
iiayrisooment, anil is not to be again incarcerate,
aalm nn new criminal letters raised against
W, before the lords of Justiciary ; in which
Iw dftf, bis trial must be concluded in ano-
iIkt dij, iiarticularly fixcil by the enactment,
<(fr«rvite the prisoner is to be set at liberty,
lodto be tor ever free from all question or pro-
CCK for tliat crime. Certain exceptions are
iben ioiroduced with resfiect to treason, and
Mtae Cither oflTences more immediately affecting
t^ public security ; and a provision annexed,
tlut uii person shall be *■ transporte<l furth of
'tlii<i kingdom,' except with his own consent,
fiven before a judge or by legal sentence,
Boder the certification, that any judge or ma-
{a^raie, who shall give order for such trans •
portaiion, or any one, who shall so transport
taotiier, shall nut imly Im* liable in the pecu-
aiiry paius of 'wrongous impriKonment, as de-
dared by the net, but sbaii lose their oflices,
!&•! be I'f^'hired incanablu of all public trust.
Tht-«e arc the general outlines of this important
uaiiite ; the value of which cannot be too
fcu^nly prized by the people of Scotland, nor
^ rtUervance too strictly maintained by the
judjes and magistrates.'*

B) the act of the 30ih of George S, per-
KU accused of sedition are excepted from
aruio pn)vi*fion8 contained in the act against
*^iD::*lUs imiiiisoniiient. As to this, see the
Cm of the liiuters against tbe Militia Law,

and afterwards, to wit, on the lOtb day of No-
vember in the same year, arrived in this king-
dom, to wit, in London, that is to say, in the
parish of St. Mary-1e-Bow in the ward of
Cheap; and that the said Charles Steuart
brought the said James Sommersett, his negro
slave and property, aK>ng with him in tbe said
voyage, from America aforesaid to this king-
dom, as the negro slave and property of bim
tbe said Charles Steuart, to attend and serve
him, during bis stay and abiding in this king-
dom, on tbe occasion aforesaid, and with an
intent to tarry the said James Sommersett
back again into America, with him the said
Charles Steuart, wben the said affairs and husi*
ness of the said Char1e<)' Steuart should be
transacted ; which said affairs and business of
the said Charles Steuart are not yet transacted^
and the intention of the said Charles Steuart
to return to America as aforesaid hitherto hath,
continued, and still continues. And I do fur-
ther certify to our said lord the king, that tha
said James Sommersett did accordingly attend
and serve the said Charles Steuart in this king*
dom, from the time of his said arrival, until tha
said James Sommersett*8 departing and absent-
ing himself from the service of the said Cbarlea
Steuart herein after- mentioned, to wit, at Lon-
don aforesaid in the parish and ward aforesaid ;
and that before the coming of this writ to me,
to wit, on the first day of October in the year
of our Lord 1771, at London aforesaid, to wit,
in the parish and ward aforesaid, the said Jamea
Sommersett, without the consent, and a^inst
the will of the said Charles Steuart, and withoul
any laivful authority whatsoever, departed and
absented himself from the service of the said
Charles Steuart, and absolutely refnsed to re-
turn into the service of the said Charles Steuart,
and serve the said Charles Steuart, during hia
stay and abiding in this kingdom, on the occa*
sion aforesaid : whereupon the said Charles
Steuart afterwards and before the coming of
i this writ to me, to wit on the 261 h day of No-
vember in the year of our l^ird 1771, on board
I the said vessel called the Ann and Mary, then
and still lying in the river Thames, to wit at
London aforesaid, in the parish and ward afore-
said, and then and still bound upon a voyage
for Jamaica aforesaid, did deliver the said
James Sommersett unto me, who then was,
and yet am master and commander of the said
vessel, to be by me safely and securely kept
and carried and conveyed, in the said vessel, m
the said voyage to Jamaica aforesaid, to be
there sold as the slave and property of the said
Charles Steuart ; and that I did thereupon
then and there, to wit at liondon aforesaid iu
the parish and ward aforesaid, rccciTeand take,
and have ever since kept and detaioe<l the said
James Sommersett in my care and custod}', to
be carried by me in the said voyage to Jamaica
aforesaid, tor the purposi? aforesaid. And this
is the cause of my taking and detaining the
said James Sommersett, whose body i hare
now ready as by the said writ I atn com-
manded." .

fS]

12 GEORGE IIL

The Negro Cue.

P*

After the readinn^ of the return, Mr. Ser-
jeant Dary, one of the counsel for Som*
mersett the negro, desired time to prepare
his argunnent against the return ; and on
account of the importance of the case, the
Court postponed hearing the objections against
the return, till the 7th of February, and the
recognisance for the negro's appearance was
ouutinued accordingly. On that day Mr. Seij.
I>avy and Mr. Serj. Glynn argued against the
return, and the farther argument was post-
poned till Easter term, when Mr. Mansfield,
Mr. Alleyne, and Mr. HargraTC, were also
beard on the same side. Afterwards Mr.
Wallace and Mr. Dunning argued in support
of the return, and Mr. Serjeant Dary was
beard in reply to tbero. The determination of
the Court was suspended till the following Tri-
nity term ; and then the Court was nnanimous-
Iv of opinion against the return, and ordered
that Sommersett should be discharged.

Argument of Ma. Harobave for the Negro.*

Though the learning and abilities of the
gentlemen, with whom I am joined on this
•ccasiouy bsTe greatly anticipated the argu-
■lente prepared liy me ; vet I trust, that the
importance of the case will excuse mci for dis-
closing my ideas of it, according to the phm
and order, which I origindly found it con?e-
nient to adopt

The case before the Court, when
^a!tc£!^^ expressed in few words, is this.
Mr. Stenart purchases a negro
alare in Virginia, where by the lav of tlie place
negroes are slaves, and saleable as other pro-
perty. He comes into England, and bnngs
the negro with him. Here the negro leaves
Mr. fittenart's senriee without his consent;
and aiUrwards persons employed by him seize
the negro, and forcibly carry him on board a
•hip bound to Jamaica, tor the avowed. pnr-
pcse of transporting him to that island, and
tliere selling nim as a slave. On an applica-
tion by the negro's friends, a writ of Habeas
Corpus is granted ; and in obedience to the
writ he is i^odnced before this court, and here
anea for tiM restitution of his liberty.

The questions, arising on this

«?&?cm£ ^""^ ^^ '^ merely conceni the
unfortunate person, who is the
anlject of it, and such as are or may be under
like unhappy circumstances. They are highly
interesting to the whole community, and cannot
be decided, withoat having the naost general

* The following Argument, on the behalf
of the negro, is not to m considered as a speech
actually delivered : for though the author of
h, who was one of the counsel for the negro,
did deliver one part of his Argument in couct
without tlie assistance of notes ; yet his Aiga-
meat, as here publishpd, is entirely a written
^omplfiiition. This drcumstanee is mentioned,
Icat the author shouhl be thought to daim a
Merit lo which be has not tbelaaat title Her-

and important consequences; vritbont extensive
influence on private happiness and public to-
curity. The right claimed by Mr. Sleuart to
the detention of the negro, is founded on the
condition of slavery, in which he was before
his master brought him into England ; and if
that right is here recognised, domestic slaverv*
with its horrid train of evils, may be lawfully
imported into this country, at the discretion oif
every individual foreign and native. It will
come not only from our own colonies, and
those of other European nations ; but from
Poland, Russia, Spain, and Turkey, from the
coast of Barbery, from the western and eastern
coasts of Africa, from every part of the world,
where it still continues to torment and dishonour
the human species. It will be transmitted to
us in all its various forms, in all the fi^radationa
of inventive cruelty : and by an universal re-
ception of slavery, this country, softmous for
public liberty, will become the chief seat of pri*
vate tyranny.

In speaking on this case, I shall ^^^^^ ^^i^^
arrange my observations under two •'^ ^ ^^
heads. First, I shall consider the *^*^
right, which Mr. Stenart daims in the persoB
of the negro. Secondly, I shall examine Mr*
Steuart's authority to enforce that right, if he
has any, by imprisonment of the negro and
transporting him out of tiiis kingdom. The
Court's opinion in fovonr of the negro, on either
of these points, will entitle him to a dischaigt
from the custody of Mr. Stenart.

(Irt.) The first point, concerning ^^ ^^^^ ^
Mr. Stenart's right in the person of J!^^'^'
the ne^, is the great one, and SieacirA
that which, depending on a variety f"'^
of considerations, requires the peculiar attention
of the Court. Whatever Mr. Steuart's right
may be, it s|nings out of the condition of
slavery, in vihich the negro was before his ar-
rival in England, and wholly depends on the
continuance of that relation; the power of im-
prisoning at pleasure here, and of transporting
mto a foreign country for sale as a slave, cer*
Uinly nnt being exerdseaUe over ,^ ^^
an ordinary servant. Accordingly <buiid«tioD of
the return foirly admits slavery ^ ^^^^ «•
to be the sole loundation of Mr.
Stenart's daim ; and this brings the question^
as to the present lawfulness of slavery in Eng-
land, directly before the Court. It would have
been more artful to have asserted Mr. Steuart'g
daim m terms less explicit, and to have stated
the stovery of the negro before his coming into
England, roereljr as aground for claiming him
beie, in therdation of a servant bound tofollow
wherever his maater should require his service.
The case represented in this disguised way,
though in substance the same, would have been
less darmiuff in iU first appearance, and
night have afforded a better chance of evading
the true question between the partiea. But
this artifice, howeverconvenient Mr. Steuart'i
conned may find it in amment, has not been
adopted in the return; the caae being there
■tatid M it really is, wiUiinit iny auppriwion

The Negro Cau.

. . i «aitoe»1 ttic ([rest extent of Mr.

■ cfaim, or any calouhnK ot'IanfCiiaei^
s reiiures of slsT«ry iu the
f ttti nrdiunry aemnl.
^^_ Bejiire I tniep upon Ihe en-

iHMi m lairy into llic preienl iBwfulnfss of
J^ alaTcry in Enclnnil, I lliink Jlnf-

t^esMry la make soDie general ob-
MTUiavi «ii (Ufery. 1 mein liowefer al-
nnu kfipp in licw ilavery, Dot as it ia in tlie
friibanaC* luhjeotloan M«otule prince, but
mIj m U ia in llie relation of Ihe lowed speciei
rfMrraM <o lit* maaler, in any aiate, nhetber
firtvr Mberwiae in in rorm of governmenl.
QbI coMfamoa lias ensunl from diaennrBing'
«A«ery, without due altenlion (o tlie ili^
fcanee Mween the Jesnoiiitm of a sovereign
a*«ra vliolt people and tlial of oue subject
nm ■■■Iber. The former la foreipi li> the
fnMVl ea>« ; and therefore when 1 am de-
•oiliiayrfBvery.or obsFrfing upon il, I desire
•• be nadcrtfood aa ciiiifintng mvEdf tu the
lalln-t Ikoogh from the conneclion belwecii
keiiraaubrMU, anmeof myobservaliona may
farhapa be applicable to butli.
TT , ^ Slavery hai been attended in

Maatiu. dilfereiil cnunlries witli circnm-
*'■ Mancea so larious, aa to render it

Mcnit t9 EtTC u ^^neral description of il.
TWRmbkii lawyer (a) calls slavery, a couati-
tmtm of the taw ul' nalinns, by nlilch one is
■air aiabfMl to anollitr contrary to nature.
Ibo tlw^ as has heco often observed by the
maraiuiatiMi, is mistabing ihe law, by which
ibtfj ta conitituied, for alavery ilaelf, the
WM fat tha effect ; Ihough il mast he con-
fBal,Uiat the latter part of the definition nb-
■Hrfj hiol* at Ihe nature of alavery. OrDtlua
W fcalrihiaalavery to be, an obligatinn to lerre
•BsAv for life, in conaideraiion of being aup-
fW iMi Ihe bars neeeisariet of lile. Di'.
KaikrfinI (<-) r

«Am dcininit detuotisni to be an alienable
ncte ha direct alt the actions of another, frnin
rtaac( cMMludea, ihal perfect slavery is an
rM<pli>w 10 be so directed. Thia last detini-
tMa any aMte in convey a general idea of
<lit«fj} but like that by Grolius, and many
■tbar dafiaUoni which I have seen, if uoder-
•nud Mricdj, will scarce suit any species of
slavery, W which it is applied. Besides, il
avM ottcafalavcry'* severest and most usual
tadilients t ibcqnaliu, by which it involves all
Ika ta«e m the iDisfurlune of (he pareut. In
Iralk, M I have already hinted, the variety of
fciiwa. in wliieta ilavery ap|>ean, tnakei it al-
Mat iiBpoaalfale to convey a Jiisl notion of it In
■lie KBT of drltnilioa. There are however
- i|>'rii*a, which have accomjiauied

- 111). 1, 111. S, I. ♦, a. 1, ' Serv'riua
I iiirujunagvntiuni, ^nft quia duini-
u evnira ualoram auhjicitur.*

MJ Jar. B»ll. Kb. 'J. o. i. .. j(T.

^3 iMt-Nal. L. b. l,e.tn,f. 474.

A. D. 1771.
ilavery in mosl placet ; and by altendiD|r ia
these, we may always distinguish i I, front lh»
mild speciea of domeatic service so common
and well known in our own country. I shall
shortly enumeralethe most remarkable of ihosa
properlies; |iHrticularly, such as cliaracterize
ihe specie of slavery adopted in our American
colooies, being that now under the considera-
tion of this conrt. This I do, in order thai a
just conception may be formed, of the propriely
with which I shall impute to slavery the most
pernicious effecls. Without such a previous
explsnation, the most solid objectiona to (be
permission of slavery will have ibe appearance
of nnmeening, though s|ie('ious, declainalion.

Slavery always imports an obli- tmixnia
gation of perpetual service; an unKjirm-
ohligation, which only the conaent u^!)^.''
of the mailer can dissolve.— It ge-
nerally gives to the mailer, an arbitrary power
of ad miaielering every anrt of correction, liow<
ever inhuman, not immediately afltcliug tbe
life or limb of Ihe slave : sDmelimes even these
are leQ exposed to the arbitrary will of tha
master ; or they are protected liy fines, and
other slight poniabmeuta, too iocooaiderable to
reatraio the master's inhnmanity. — It creates
an incapacity of aeqniriag, except lor the
roaster's benefit.— Il allows the mailer to alie-
nate Ihe pei«on of the slave, in the aaiue man*
ntr as other propeHy.— Lastly, it descenda
from parent to child, with Jail its setere ap-
penilages.^ — On the most accurate comparison,
there will be found nothing exaggerated in this
repreaentBtion of slavery. The description
agrees with almost every kind of slavt'ry, for-
merly or now existing; except only that rem-
nant of the ancient slavery, which sllll lingers
in some parts of Europe, but qualified and
moderate/ in favour of the slave by the hu<
raane grovisinn of modern times.

From this view of the condition
of slavery, il will bo easy to deriie "Ji,*^^."
ils destructive consequences. — It
corrupts the morals ol the master, by freeing
him from those restraints with respect to his
slave, so necessary for controul of the human
passions, so beneficial in promoting the prac-
tice and confirming Ihe habit of virtue. — It is
dangerous to the master ; because his oppres-
sion excites implacsble resentment and hatred
in Ihe slave, and tha extreme minery of his
condition continually {prompts him to risk tha
gratification of them, and his situation daily
fumishea the opporluniiy — To the slave it
communiuates all the afiliclionw of life, wilhout
leaving for him scarce any of its nieasurea ;
and it depressea the excellence of his nature,
by denying the ordinarv means and motives of
improvement. Il is dangerous to the state,
by its corruption of those citizens on whom ila
prDsperily depends ; and by adnnlling within
II a multitude of peraotis, wlm being excluded
from tbe common beneliiB of the conatitution,
are inlerealed in scheming its destruction. —
Hence it ia, that slavery, in whatever tighl wa
view it, may b« deemed ■ most pernicious ia-

27]

12 GEORGE III.

The Negro Case.

[28

stitution: immediately so, to the unhappy
person who suffers under it ; finally so, to the
master who triumphs in it, and to the state
which allows it.

opioiooof However, I m«st confess, that

aome modem notwithstanding the force of the
£^"0° the reasons against the allowance of
miuiy of »ui- domestic slavery, there are civiUans

TCTf, but un- _ ••/ ■ • • ^

derntnyrc- of great Credit, who insist upon
•iricuoiu. 1^ u^-jjiy . founding themselves

chiefly, on the supposed increase of rohhers
and b^gars in consequence of its disuse. This
opinion is favoured by Puffendorf (d) ai|d
Ulricus Huberus (e). In the dissertation on
slavery prefixed to Potgiesserus on the German
law * de statu servorum,' the opinion is exa-
mined minutely and defended. To this opi-
nion I oppose those ill consequences, which I
have already represented as almost neces-
sarily flowing from the permission of domestic
slavery ; the numerous testimonies Sjpainst it,
which are to be found in ancient ana modem
history ; and the example of those European
nations, which have suppressed the use of it,
after the experience of many centuries and in
the more improved stale of society. In jus-
tice also to the writers just mentioned 1 must
add, *that though they contend for the advan-
tages of domestic slavery, they do not seem to
apnrove of it, in the form and extent in which
it has generally been received, but under limi-
tations, which would certainly render it far
more tolerable. Huberus in his Eunomia
Romana {/) has a remarkable passage, in
which, after recommending a mild slavery, he
cautiously distinguishes it from that cruel spe-
cies, the subject of commerce between Africa
and America. His words are, * loqoor de ser-
vitute, qualis apud civiliores populos in usu
fuit; nee enim exempla barbarorum, vel qua
nunc ab Africft in Americam fiunt hominum
commercia, velim mihi quisqiiam objiciat.'
•ritiaortu. The great ongin of slavery is
very* f?**^'^ captivity in war, though sometimes
iuiMrn coui- it lias Commenced by contract. It
^^' has been a question much agitated,

whether either of these foundations of slavery
is consistent with natural justice. It would be
engaging in too large a field of enquiry, to at-
tempt reasoning on the general lawfulness of
slavery. I trust too, that the liberty, tor which
I am contending, doth not require such a dis-
quisition ; and am impatient to reach that part
of my argument, in which I hope to prove
slavery reprobated by the law of England as
an inconvenient thing. Here therefore I shall
only refer to some of the most eminent writers,
who have examined, how far slavery founded
on captivity or contract is conformable to the
law of nature, and shall just hint at the reasons,
which influence their several opinions. The
antient writers suppose the right of killing an

(d) Law of Nature and NaUoDS, b. 6, 0. 3,
1. 10.
(t) Prelect. Jur. Cir. p. 16.
(/) See page 48.

enemy vanquished in a just war ; and thence
infer the right of enslaving him. In this opi-
nion, founded, as I presume, on the idea of pu-
nishing the enemj for his injustice, they are
followed by Albericus Gentilis (g), Grotius (A)^
Puffendorf (i), Bynkershoek Q), and many
others. But in < The Spirit of Laws' (k)ihe
right of killing is denied, except in case of ab-
solute necessity and for self-preservation.
However, where a country is conquered, the
author seems to admit the conqueror's right of
enslaving for a short time, that is, till the con-
quest is effectually secured. Dr. Rutherforth,
(/) not satisfied with the right of killing a van-
quished enemy, infers the right of enslaving
him, from the conqueror's right to a reparatioa
in damages for the expences of the war. I do
not know, that this doctrine has been exa-
mined ; but I must observe, that it seems only
to warrant a temporary slavery, till reparatioa
is obtained from the property or personal la-
bour of the people conquered. The lawfulness
of slavery bV contract is assented to by Grotius
and Puffendorf (in), who found themselves on
the maintenance of the slave, which is the con-
sideration moving from the master. But a
very great writer of our own country, who is
now living, controverts (n) the sufficiency of

(g) De Jur. Gent. cap. de servitute.

(h) De Jur. Bell. 1. 3, c. 7, s. 5.

(i) Law of Nature and Nations, b. 6, c. 3,

8.6.

(j) Qufest. Jur. Publ. I. 1, t. 3.

(k) B. 15, c. 2.

(I) See his Inst. Nat. Law, vol. 2, p. 573,
and vol. 1, p. 481.

(m) See Grot. Jur. Bell. 1. 3» c. 5, s. 1, 2,
and Puff. Law of Nature and Nations, b. 6»
c. 3, s. 4.

(n) See Blackst. Comment 1st ed. vol. 1,
p. 412.

The authority of Mr. Justice Blackstone
having been cited both for and against the
rights of persons claiming to be the owners of
slaves in Great Britain, 1 have thought it worth
while to insert together all that I find relating
to the subject in his Commentaries:

*' The spirit of liberty is so deeply implanted
in our constitution, androoted even in our very
soil, that a slave or a negro, the moment he lands
in England, falls under the protection of the
laws, and so far becomes a freeman ; though
the master's nght to his service may possibly
still continue." Vol. l, p. 127.

** I have formerly observed that pure and
proper slavery does not, nay cannot, subsist in
England ; such 1 mean, whereby an absolute
and unlimited power is given to the master over
the life and fortune of the slave. And indeed
it is repugnant to reason, and the principles of
natural law, that such a state should subsist
any where. The three origins of the nf(i\i of
slavery, assigned by Justinian, are all ot them
built upon false foundations. As, first, slavery
is held to arise ' jure gentium,' from a state of
captivity in war; whence sltTei are called

B] The Negro Case.

inch i oontiderakion. Mr. Locke has framed
aaoUicr kind of argument against slarery

« nasftpia, ^aasi mann capti.' The conqueror,
njike civilians, had a right to the life of his
o^; and, having spared that, has a right
bdctl with him as be pleases. But it is an
Btroe nontion, when taken generally, that,
if^ the law of nature or nations, a man may
kill bis enemy : he has only a right to kill him,
IB particular cases ; in cases of absolute ne-
ccHity, for 8elf-«1efeDce; and it is plain this
ibnlute necessity did not subsist, since the
Ticlor did not actually kill him, but made him
prisoner. War is itself justifiable only on prin-
ciples of teif-preser? ation ; and therefore it
gires no other right over prisoners but merely
to disable them from doing harm to us, by con-
fiaiog their persons : much less can it give a
right to kiU| torture, abuse, plunder, or even to
cnUve, an enemy, when the war is o?er.
Saoe tlierefore the righ( of making slaves by
ctptivity depends on a supposed right of
daaghter, that foundation failing, theconse-
^ocnee drawn from it must fail likewise. But,
SKOiidly, it is said that slavery may begni * jure
' dvili ;' when one man sells hiipself to ano-
ther. This, if only meant of contracts to serve
«r work for another, is very just : but when
applied to strict slavery, in the sense of the
laws of old Rome or modem Barbary, is also
iaipossible. Every sale implies a urice, a
' ^oid pro quo,' an equivalent given to tne seller
is lien of what he transfers to the buyer : but
what equivalent can be given for life, and
Acrty, both of which (in absolute slavery) are
hcUio be in the master's disposal? His pro-
foij slso, the very price he seems to receive,

devvtrcs ipsojacto to bis master, the instant he
hKomts his slave. In this case therefore the
frojff gives nothing, and the seller receives no-
ibro);: of what validity then can a sale be,
vkich destroys the very principles upon which
111 sales are founded? Lastly, we are told,
that besides these two ways by which slaves
' 6ant,' or are acquired, they may also lie here-
diury : * servi nascuntur ;' the children of ac-
quirecl slaves are, * jure nature' by a negative
kiul of birthright, slaves also. But this, being
built on the two former rights, must fall together
with them. If neither captivity, nor the sale
of one's self, can by the law of nature and
reason reduce the parent to slavery, mpch less
cau they reduce the oflfsiprint;.

*' Upon thr«e principles the law of England
abhors, and will not endure the existence of,
•Uver}' within this nation : so that when an at-
trcopt was made to introduce it, by statute
1 £dw. 6, c. 3, which ordained, that all idle
vi^bonds should be made slaves, and fed upon
brrad, water, or small drink, and refuse meat ;
should wear a ring of iron round their necks,
armig or legs; and should be compelled by
beating, chaining, or otherwise, to perform the
work assigned them, were it never so vile ; the
sphitoftlie nation could not brook thiscondi-
tiOB, even in tho most abandoned rogues; and

A. D. 1771.

[30

I

by contract (o) ; and the substance of it is,
that a right of preserving life is unalienable ;
that freedom from arbitrary power is essential
"to the exercise of that right; and therefore,
that no man can by compact enslave himself.
Dr. Rutherforth (p) endeavours to answer Mr.
Locke's objection, oy insisting on various limi-
tations to the despotism of the master ; parti*
cularlyi that he has no right to dispose of the
slave's life at pleasure. But the misfortune of
this reasoning is, that though the contract can-
not justly convey an arbitrary power over the
slave's life, yet it generally leaves him without
a security against the exercise of that or any
other power. I shall say nothing of slavery
by birth ; except that the slavery of the child
must be unlawful, if that of the parent cannot
be justified ; and that when slavery is extended
to the issue, as it usually is, it may be unlawful
as to them, even though it is not so as to their
parents. In respect to -slavery used for tho
punishment of crimes against civil society, it is
founded on the same necessity, as the right of
inflicting other punishments ; never extends to
the offender's issue ; and seldom is permitted
to be domestic, the objects of it being g^ene-
rally employed in public works, as the galley-

therefore this statute was repealed in two years
afterwards. And now it is laid down, that a
slave or negro, the instant he lands in Engkiod,
becomes a freeman ; that is, the law will pro«
tect him in the enjoyment of his person, and
his property. Yet, with regard to any right
which the master may have lawfully acquired
to the perpetual service of John or Thomas,
this will remain exactly in the same state as
before ; for this is no more than the same stato
of subjection for life, which every apprentice
submits to for the space of seven years, or
sometimes for a longer term. Hence too it
follows, that the infamous and unchristian prac-
tice of withholding baptism from negro ser-
vants^ lest they should thereby gain their li-
berty, is totally without foundation, as well as
without excuse. The law of England acts
upon general and extensive principles : it gives
liberty, rightly understood, that is, protection,
to a Jew, a Turk, or a Heathen, as well as to
those who profess the true religion of Christ ;
and it will not dissolve a civil obligation be-
tween master and servant, on account of the
alteration of faith in either of the parties:
but the slave is entitled to the same |>rotec-
tion in England before, as aAer, baptism ;
and, wliatevf r service the heathen negro owed
of right to his American master, by general
not hy lociil law, the same (whatever it be) is
he bound to render when bruoght to England
and made a Christian." Vol. 1, p. 423.

In these passages, there appears to be some-
what of very subtle distinction, if not rather of
contradictiuii.

(o) See Locke on Governm. 8vo edit. b. 9,
c. 4, p. 213.
(p) See his Inst Nat. Law, vol. 1, p. 480.

31]

12 6E0BGB III.

The Nqpro Case.

[32

sltFes are in France. Gonaeqaently ihia kind
of slavery is not Kable to the principal objeo-
lions, which occur affainstsbiTefy in giDen\{q),
Upon the whole of this controFersy concerning

(g) Some writers there are, who deduce the
lawfulness of domestic slavery from the prac*
tiee of it amongst the Jews, ind from some
passages in the Old Testament which are
thought to conntenanoe it. See Vinn. in Instit
Heineoc. ed. 1. 1, t 3, p. 31. There are others
who attempt to justify slavery by the New
Testament, because it contains no direct pre-
cepts against it See Tkyl. Elem. Cir. L. 434.
I— I shul not attempt to examine either of these
opinions.— JBargrove.

In the discussions respecting the African
■lave trade, which were maintained during se-
reral years preceding the abolition of that
traffic (by stat. 46 Geo. 3, c. 58, see also
c. 119, and 51 0.3, c. 93), the authority of the
scriptures was appealed to by the oppugners
and defenders of the trade. On June 24, 1806,
the learned and eloquent Dr. Horsley, bishop
of St Asaph, ddiveced in the House of Lords
upon the subject, every powerful speech, from
which I have extracted the following passages.

*' My rev. brother" (the bishop of London)
*' told your lordships, that perpetual slavery
was not permitted by the Jewuh law. That a
native Jew could be held in slavery for seven
years only, at the longest. For he Lad a right
to his freedom upon toe first return of the sab-
batical year. And that a ibrei^ slave pur-
chased in the market, or captivated in war,
eould be held in slaveiy for fifty years onljr, at
the longest. For the foreign slave had a right
to bis freedom upon the first return of the year
of Jubilee. And from these premises, my rev.
tirother concluded, that perpetual slavery was
unknown among the Jews.

'* I confess, I was carried away by the fair
appearance of my rev. brother's aiguments,
tib, to my great surprise and his utter confu*
•M>n, the noble earl (of Westmoreland) rose,
with his Bible in his hand, and quoted chapter
and Terse against him !

** My lords, with respect to the luUive
Hebrew slave, we have this law, which was
qaoted by my rev. brother : * If thy brother,

* an Hebrew man, or an Hebrew woman, be

< soM unto thee, and serve thee six years, then

* in the seventh thou shalt let him go free from

< thc». And when thou sendest nim out free I

* from thee, thou shalt not let him go away

* empty. Thou shalt furnish him liberally
' ont of thy flock, and out of thy flour, and out

* of thy wine-press. Of that wherewith the
« Lord thy God hath blessed thee, thoa shalt

* give unto him.' Dent xv. 19 — 14.

*< And with respect to the foreign slave, we
have this law, quoted likewise by my rev. bro-
ther : * Thou shalt number unto thee seven

* sabbaths of years, forty and nine years. Then
■ahaltthon cause the trampet of the jubilee to

* sound throughout all the land. And ye shall
' hallow the fiftieth year, and proolaim liberty

skverr, T think mvsdf warranled in saying,
that the justice andlawfuhiess of every species
of it, as it is generally constituted, except the
limited one rounded on the commission of

* throughout all the huid, to all the inhabitanti

* thereof.' Lev. xxv. 8—10.

« The manumission of the Hebrew slave on
the seventh year, was provided for by the other
law. Under the expression, therefore, of all the
inhabitants, foreign slaves must be eompro*
bended ; for none but foreign slaves could re*
main to be manumitted in the fiftieth year.

** My brds, there is a circumstance not
touched upon by my rev. brother ; but there is
a passage in tlie law, which 1 have always
considered, as a strong argument of the lenity,
with which slaves vrere treated among the
Jews, and of the efficacy of the provisions the
law had made, to obviate the wrongs and iniu*
ries to which the condition is obnoxious. — ^My
lords, I am afraid I cannot, by memory, refer
exactlj^ to the place. But the noble earl there,
with his BiUe, I am sure will have the good-
ness to help me out and turn up the passage
for me. Mj^ lords, it is a passage, in which
the law provides for the casA. of a slave, who
should be so attached to his master, that when
the term of manumission, fixed by the law
shouM arrive, the slave slionid be disinclined
to take advantage of it, and wish to remain
with his master. And the law prescribes the
form, in such case to be used, by which the
master and the slave should reciprocally bind
themselves, the slave to remain with bis master
for life, and the master to maintain him. This
I have always considered as a strong inUicatioo
of the kindness, with which slaves were treated
among the Jews ; else whence should arise that
attachment, which this law supposes ?" [Query
if the bishop had in his mind the begioDing of
the 21st chapter of Exodus, if so, the words
are ' he shall serve him for ever.']

** But we are all in the wrong, it seems — my
rev. brother and I*-we reason from specious
premises, but to false conclusions. The noble
eari has produced to your lordships a pasMge
in the Leviticai law, which enacts that the
foreign slave should be the property of bis
master for ever. Whence the noble earl con-
cludes that the perpetual servitude of foreign
slaves was actually sanctioned by the law.
But, my lords, I must tell the noble earl, and I
must Ml your lordsliips, that the noble earl hao
understanding at all of the technical terms of
the Jewish law. In all the laws relating to the
transfer of property, the words ' for ever,*
signify only * to the next jubilee.' That is
the longest * for ever' which the Jewish law
knows with respect to property. And this law,
which makes the foreign slave the property of
his master for ever, makes him no louger tho
master's property than to the next jubilee.
And, with the great attention the noble earl hao
given to the laws and hiatory of the Jews, ho
moat know, that when tboy were carried into
eaptiviiy, they were loldby thwr prophets, that

The Negro Cate.

citil Mriely, ii ai Icasl doublfot ;
kwfiil, audi circumttancei
tke it 311, an selJoD) coucur,
^^ . B jiirt cominencenieDt of

it M| pooiblr ; sod ihat Ibe oppressive
■•MI ia whkb it bu geiwrnti)' commeDcei),
•rcTvd inf«iii ncc^Naty lo enforce ils con-
■■MM, aod the tnischier* eusuiiit;' fmiD llie
fOTMNlrMt of il, funub Tery tirnug presump-
■MJHwuM ill Justtcc. tnil al all erenlBeiiuce
i* hMDanily aud policy ol' those stales, in
itith Iha MM of il 19 III) longer tolerated.
J „f I, But howecer reasonable il may

• ■^i^w be lo Joobt the justice of domestic
^5 te ila*ery, linwcTer conrinced we
^"■^ may be of ils ill effecis, it miiEt be

tmtmmi, thai ibe practice is aulieni, and has
Ida ahniMl nniienal. Its begiooing tnay be
Imd 6vm Ili« retnoleit |ieriad, in which there
wc »my ItBCM of the history of mankind. It
— im n I it in ihe harbaroiis slat« of society,
■ri wM ntalsed, efeu wlieii men were Tar ad-
wriit in diilizalitin. The nnlinns of anti-
faiy OMMt fiiiDiiUB for cuunleiiincing the
MrBof doMTilioalavery were Ibe Jews, the
OwA*. till! Romans, atxl the antieot Ger-
MM^r) ; «E)King«i all of whom it preTailed,
!•■■ Tarioua<le^ee> nrEeTerity. By thean-
linlG«TniftB* il was conlinued la the connlriM
tmf «*cr-nRi i and so was trauamitled to the
j_ rariuua kinird<"ns aud italn,

Mnaa which arose in Europe out nf the

■^•^ ruin* of Ihe lliiman em|iire. At

tm^lli b(M*«*«r it fell into decline in mott
MS of Knrope ; and amongst Ihe Tarious

•Mof ibe Crimea which drew down Ihatjudg-
MM^Mt tbeni, was their gross neglect and
mJMm of these merciful laws respecting
^■■MoaiMi. And that, in contempt and de-
teeraf ibe latr, il had been ihtir practice to
hMlbcir ForeigD slaves >n lervilude beycnd
teyMr of jubilee."

- ■ ■ -My lords, allhottgh ivehare noex-
(fail prabilHtiun of tho slave trade in the New
nMMnral, we have a moat express lejirobati on
If iha Irsd* tn alnves, even in that milder form,
« •hidh it auhftisled in ancient times. Such
a nyfrAatiaa of it as leaves no believer al
Bnty tv a*j. ihat llir shve trade is not coo-
iSMBgJ by lli« goapel. The rKverend prelate
a^ Mc'lia* citrd the (Msaags [t Tim. i,
f— to) ■*> which St. 1*8111 nienlions ' men-
Milan* Bmnaig tht f[realrst miscreanlt. * Men-
iailiis' ao «• read in our En^li«h Bilite.
Rol lh« iBMil ill the original is Attfu-niieatt.
ttlmrihcir '* Kuraliy a ' date trader,' and
ki Mbrr tinnl in the Eniflish lauguatie, bul
daw iraihrr, fireriaely readers it. Il waa I'n-
^■i4 Mv irchnlMl name for a lUv e trader in
•■ ttrie h-."

(r) It apiwara by CKMr and Taciloa, that
haaacirai Gmaan* had ■ hind at slates be.
%n th^y rmsitralf^ front tlirir own courilry.
WC«a.ilc Ball. Gall. lib. 6, cap. 13, el Tac.
it Mm. (ierman. cap. 114, M Si. et Fulgieaa.
4«aL avrvttr. af. Cmui. bb. 1, C8[>. I.

KjroL. XX.

A. D. 1771.

caaan, which contributed to this alteration,
none were probably more effectual, than ex-
perience of the diaadvanlages of slaiery ; iha
difficulty of coQijnuing il ; and a persuasion
that llie cruelly and oppression almost neces-
sarily incident lo il were irreconcilable with the
pure morality of the Christian dispensation.
The history of iu declioo in Europe has lieea
traced by many eminent writers, parliculsrly
BodiD(!), Albericus Gentilifi (f), Potgiesserus (u).
Dr. Itoberlson {b'), and Mr. Millar (.r). It i»
sufiicienl here to say, thai Ihis great change
began in Spain, according lo Bodin, about tha
end of the eighth century, and vras becoma
general before Ibe middle of the fourteenth
century. Bartolus, Ihe most famed commen-
tator CD Ihe civil taw in that period, represents
slavery as io disuse ; and the succeeding com-
mentators hold much the sane language.
However, they must be understood with many
resLriciboi and exceptions ; and uot to mean,
that slavery was completely and universally
nboli.ched in Europe. Some modern civilians,
nol sufficiently atiendiog to Ihis circum!lance,
rather too hastily reprehend their predecessors
for representing slavery as disused ju Europe.
The truth is, that the ancient species of slavery
bj| frequent emancipalions became greatly di-
minished in extent ; the remnant of il was con-
siderably abated io severity ; the disuse of the
practice of enilatiog captives taken in the
wars between Christian powers assisted in pre-
venting the future increase of ilom est ic slavery ;
and in some countries of Europe, particularly
England, a still more effectual method, which
I shall explain herealler, was thought of toper-
feet llie BUppressina of il. Such waa the ex-
piring Blale of domestic slavery in „„;,j, ^,j^
Europe at Ibe commencement of chiiIciIi.rt
the sixteeolh century, when the '° '■'"'""■
discovery of Ameiica and of the western and
eastern coasls of Africa gave occasion lo tb«
inlroduclion of a new species of slavery. It
took its rise from the Portuguese, who, in order
In supply the Spaniards wilb persons able lo
■uslaio the fatignc of cultivating their new
poEseabiuns in America, particularly Ihe islands,
opened a trade between Africa and America
for the sale nf negro slaves. This ditgraceful
commerce in Ihe human apecies is said lo have
beguu in the yeiir 1506, when Ihe fifoi impor-
tation of negro slaves waa mnde into Hitpaiiiola
from the Purtagiiese settlements on Ihe western
ooaslB of Africa (y>. In 1540 llie emperor
Chariea the tilth endeavoured lo slop the pro-
gress of the negro slavn-y, by orders that all

(i) See his book De KepublicA, cap. 5, da

(t) Jur. Gent, csp.de sertilule.

(u) Jur. Germ, de statu acrvorum.

(t/) Life of ibe emperor Charles Ihe Hb,

TOl. 1.

(x) Observations on ihe ilistinrliDn ofrankt
in civil sociely. See alio Tayl. Ekm. Civ. U
•34 to 4S9.

(y) Ander. Hist. Comm. T. 1, p> 330.

S5] 12 GEORGE III.

ulavef in the American itlee should be made
free; and ihey were acconiinfriy nannmitted
by La^fasca the (j^OTeroor of the country, on
condition of contiouinfif to labour for their nas-
tert. But this attempt prored umueceesful,
and on. Lagasca'a return to Spain domestic
8la?ery re? i?ed anti flourished aa before (2).
The eipedient of havin§f slaves for labour in
America was not longf peculiar to the Spaniards ;
being afterwards adopted by the other Euro*
peansy as they acc^uired possessions there. In
consequence of this general practice, negroes
are become a very considerable article in the
commerce between Africa and America ; and
domestic slavery haa taken so deep a root in
most of our own American colonies, as. well as
in those of other nations, that there is little
probability of ever teeing it generally sup-
pressed.

hm attempt Here I conclude my observa-

to^imuxtuGc^^ tions on domestic slavery in ge-
wttnnSto neral. 1 hare exhibited a view
ImiD^". "' o^ >(• nature, of iu bad tendency,
of its origin, of the arguments tor
and against its jusiice,of its decline in Europe,
and the introduction of a new slavery by the
European nations into their American colonies.
1 shall now examine the attempt to obtrude
this new slavery into England. And here it
will be materialto observe, that if on the de-
clension of slavery in this and other countries
of £uro|ie, where it is discountenanced, no
means had been devised to obstruct the ad-
mission of a new slavery, it would have been
vain and fruitless to have attempted superseding
the ancient species. But I hope to prove,
Arfomeoti to ^^^^ ^^r anccstors at least were
prate,^tbit Dot aoshort-sighted ; and that long
EniiaV*in <^ uninterrupted usage has esta-
blished rules, as effectual to prevent
the revival of slavery, as their hu-
manitv was successful in once suppressing it.
I shall endeavour to abew, that the law of
England never recognized aoi^ species of do*
mestic slavery, except the ancient one of vil-
leoage now expired, and has sufficiently pro-
vided against tne introduction of a new slavery
under the name of villenage (a) or any other
denomination whatever. This proposition I
hope lo demonstrate from the followmg consi-
derations.

1. ArnBCBt ^* ^ apprehend, that this will ap-
rioi the pear to be the law of England from

Mktau title the manner of making title to a
•f • flllelD. ^iii^n.

The only shvery our law-books take the
least notice of is that of a -villein ; bv whom
was meant, not the mere tenant by villein ser«
vices, who might be free in his person, but the
villein in blood and tenure; and as the English

(4) See Bodin de Republic, lib. 1, c 5.

(a) Villenage is used to express sometimes
Iha tenure of lauds hehl by villeiii-servicM. and
■onetimes th* ptnonal bandage of tha viUein (
km Uwocfhont thia aigiuBHt it ii appliid ta

The Negro Cote*

[36

not idrait a

■cv lUrcnr.

\ I ■

1 .1 .

li

law has no provisioaa to regulate any othex
slavery, therefore no slavery can be lawful in
England, except such as will consistently fail
under the denomination of villenage.

The condition of a villein hiul
most of the incidenU which 1 have ^ ^^
before described in giving the idea
of slavery in general. His service was uncer-
tain and indeterminate, such as his lord thought
tit to require; or, as some of our aocieni
writers {b) express it, he knew not in tlie evening
what he was to do in the morning, be was
bound to do whatever he was commanded. He
was liable to beating, imprisonment, and every'
other chastisement his lord miffht prescribe, efr
cept killing and maiming (c). He was incapable
of acquiring property for his own benefit, the
rule being * quicquid acquiritur servo, acquiritur
domino* (d). He was himself the subject o£
property ; as such saleable and transmissible.
If he was a villein regardant, be passed with
the manor or land to which he was annexed,
but might be severed at the pleasure of hia
lord U) If he was a villein in gross, he was an
hereditament or a chattel real according to his

(h) See the extracts from them in Co. Litt
116, b.

(e) See Terroes de la Ley, edit, of 1567»
voc Villenage — Old Tenures, can. Villenage—
Fitzh. Abr. Coron. 17.— 2 Ro. Abr. 1.— S Jnat
45.— and Co. Lilt. 136, 197.

(d) Co. Litt 117, a.— The words, in pleads
ing seizin of villein-service, are very exprcs*
sive of the lord's power over the villein's pro*
perty. In 1 £. 2, 4, it is pleaded, that the
lord was seized of the villein and his ancestors

* come affaire rechat de char et de ssnk et de

* fille msrier et de eux tailler haut et has, 5cc.*
The form in 5 E. 8, ]57i is, * come de nos vi«

* leynes en fesant de luy notre provost ea
' p*nant de luy rechat de char et de saunk et

* redemption pur fille et fits marier de luy el

* de ces aunc et a tailler haut et haa a notre

* volente.' In the first of the above fomoe
there is evidently a misprint ; and the reading
ahould be * a faire rechat* instead of * affaire

* rechat.' As to the word * provost' in the
second form, it seems to signify * plunder,' and
perhapa the print should be * proie' or ' proye*
instead of * provost.' I was led to this con-
jecture by the following proverb iu Cotgrave's
French Dictionary, * qui a le vilain u a as

* proye.' See Cotgr. edit, of 1673, voc. proye.
However, in the Latin Entriea the woni • pro*

* vest' is translated ' propositum,' which in a
barbarous sense of the word may be construed
to signify * will' or * pleasure,' and will make
the passage intelligible. In aome Entries * prcH

* vest' is transUted * propositus ;' but this word
cannot be understood in any sense that will
make this use of it intelligible.

The forms of pleading aeisin of villein -aer«
vieaa in the Latin Entries are very aimilar to
those 1 ksve sstrsetsd from the ycsr^books.
8ss RssL Entr. 401. a.

(%) UttssoLlSa.

sn

The N^ro Case*

M^s inteml ; bein^ detcendible to the heir

vhcretbe lord wms ibeolote owner, and trans-

BiMMt to the eieeutor where the lord had

eoly ■ term of yean in hiro (/). Lastly, the

way esteDded to the iasne, if both parents

wet filletBs, or if the father only was a rillein ;

m kw dcriviosr the condition of the child from

ia if the father, contrary to the Roman law, in

fMeh tho rolo wnptuius $equitur ventrem (g^.

The origin of villenage is princi-

3^ ^ pally (k) to bederired from the wars

between our British, Saxon, Danish

M Nemaii ancestors, whilst they were oon-

tadiar fi»r the possession of this country.

isdfeFitsherbert, in his reading on the 4th of

Uw. 1, stmt. 1. entitled Extenta mttnerUf sup-

psas fiBeiiage to ha?e commenced at the Con-

sseit, by the distribution then made of the

■rfdtod lands and of the vanquished inha-

lilsnls icsident upon them (j) . But there were

boDdmeo in England before the Conquest,

are by the Anglo Saxon laws regulating

y and therefore it would be nearer the

Inth to attribate the origin of villeins, as well

litbe preeediog wars and revolutions in this

i to the efiects of the Conquest (k).

After the Conquest many things

•^ happily concurred, first to check

the progress of domestic slavery in

Earlaad, and finally to suppress it. The cruel

CBStoa c€ enslaving captives in war being abo-

iiibedv from that time the accession of a new

nee ef villeios was prevented, and the huma-

liiy, policy, and necessity of the times were

— hnallj wearing out the ancient race.

''nses, DO doubt, manumissions were freely

; bat they probably were much oftener

(f) Bro. Abr. Villenage, 60.^^o. Litt. 117.

ff) Co. Litt. 123. Artieatly our law seems
It ^ave been very uncertain in this respect.
8k Gknv. lib. 5, c. C. Nirr. c. 2, s. 38. Britt.
c 3L Bot the writers in the reign of Henry
ibe «tb agree, that our law wss as here repre-
■sted ( and from the plea of bastardy, which
*M held to bo a peremptory answer to the al-

Sm of villenage so early as the reign of
ard the 3d, 1 conjecture, that the law
vsi settled in the time of his father. See
Fwteac. Land. Leg. Angl. c. 4^. Lilt. sect. 187.
—43 E. 3, 4, and Bro. Abr. Villenage, 7.

(kj I do not say wholly, because probably
tbcre were some »>laves in England before the
fins arrival of the Saxons ; and also they and
the Danes might bring some few from their
ova country.

(i) See the extract from Fitzherbert's read-
■g io Barringt. Observations on Ant. Sut. 2d
«<a. p. «37.*

(k) See Spelra. GUms. voc. Lszzi et Servus.
IwHi. OQ Gavelk. 65, and the index to Wiik.
Uf. Saxoo. tit. Servos.

* Cooeeniiog the antiquity of villenage, see
— '^' -m "A Discourse of Tenures," said

to be wntieo by sir Walur Raleiffb, published
• GMli*i CoUoetaiiea Cmu^ ^ ol. l, p. 60.

A. D. 1771. p8

extorted during the rage of the civil wars, so
frequent before the reign of Henry the 7th,
about the forms of the constitution of the sue*
cession to the crown. Another cause, which
greatly contributed to the extinction of villen-
age, was the disconrsfjement of it by the courts
of justice. Tbejr always presumed in favour
of liberty, throwing the ' onus probandi' upon
the lord, as well in the writ of Homine Reple«
giando, where the villein was plaintiff, as in
the Native Habendo, where he was defen-
dant (/). Nonsuit of the lord after appearanco

(I) See Lib. Intrat. 176, a. 177, b. 6c Bro.
Abr. Villenage, 66, It seems however, that if
after a Native Habendo brought by the lord,
the villein, instead of waiting for the lord's
proceeding upon it, sued out a Libertate Pro-
banda to remove the question of villenage for
trial before the justices in eyre, on the return
of it he was to produce some proof of his free
condition ; and tbi^t if be failed, he and his
pledges were amerced. But this failure did
uot entitle the lord to any lienefit from bis Na-
tive Habendo, and therefore, if be proceeded
in it, and could not prove the villenage, the
judgment was for the villein ; or if the lord did
not proceed, a nonsuit, which was equally fatal
to tna lord's claim, wa^ the necessary canso>
qnence. Sea 47 H. 3. It. Dev. Frtz. Abr.
Villensge, 3^ In truth, the rfqirisition of
proof from the viliein on the Libertate Pro-
banda, and the amercement for want of it,
seem to have been mere form ; for, as Fits*
herbert vays, in explaining the effect of the
Libertate Probanda, ** the record shall be sent
before the justices in eyre, and the lord shall
declare thereupon, and the villein shall mabo
his defence and plead thereunto, and the viUvin
shall not declare upon the writ de Libercato
Probanda, nor shall any thing be done there-
upon ; for that writ is but a Supersedeas to
surcease for the time, and to ailjourn the record
and the writ of Nativo Habendo, beibre the
justices in eyre." Fitz. Nat. Br. 77, D. Upon
the whole therefore it may I think be safely
asserted, that in all cases of filleoage the
* onus probandi' wan laid upon the lirrd.

The several remedies sgainst abd for one
claimed as a villein are now so little under-
stood, that perhaps a short account of them
may be acceptable ; more particularly as, by
a right conception of them, it will be more easy
to determine on the force of the argument
drawn against the revival of slavery from the
rules conierninflf irillenak^e.

The lord's remedy for a fugitire villein was,
either by seizure, or by suing out a writ of
Nativo Habendo, or Neitty, as it is some-
times called.

1. If the lord seized, the villein's most ef-
.fectual mode of recoveriui; lilierly was liy the
writ of Homine Keplegiaodu ; m Inch had i;reat
advantage over the writ of Habeas Corpus.
In the Habeas Corpus the returu ciuinot be
contested by pleading agaiost the irutli of it,
and consequently on a Hftbeaa Corpus the

Si)] 12 GEORGE IIL

in a Nalivo Hibendo, which was the writ for
asserting the title of sUfery, was a bar to an-
other Nativo Habeodo, and a perpetaal eofran-
chiaemeot ; but noosuit of the fillein after ap-
pearaoce id a Libertate Probanda, which was
one of the writs for asserting the chim of liberty
against the lord, was no bar to another writ of
the lilce kind (m). If two plaintifis joined in a
Nati?o Habendo, nonsuit of one was a nonsuit
of both ; but it was otherwise in a Libertate

question of libertv cannot go to a JQiT for trial ;
though indeed the party making a raise return
b liable to an action for damages, and punish-
able by the Court for a contempt; and the
Court will hear affida? its against the truth of
the return, and if not satisfied with it restore
the party to his liberty. Therefore, if to a
Habeas Corpus villenage was returned as the
cause of detainer, the person for whom the writ
was sued at the utmost could only hare ob-
tained his libertv for the time, and could not
bare had a regulsr and final trial of the ques-
tion. But in the Homioe Replegiando it was
otherwise ; for if villenage was returned, an
Alias issued directing the sheriff to replevy the
party on his giving security to answer the
claim of villenage afWrwards, and the plaintiff
might declare for false imprisonment and lay
damages, and on the defendant's pleading the
villenage had the same opportunitv of contest-
ing it, as when impleaded by the lord in a
Natif o Habendo. See Fitzh. N. Br. 66. F.
et Lib. Intrat. 176, a. 177, b.

8. If the lord sued out a Nativo Habendo,
and the villenage was denied, in which case
Ihe sheriff could not seize the villein, the lord
vms then to enter his plaint in the county
court ; and as the sheriff was not allowed to
try the question of villenage in his court, the
lord could not have any b^efit from the writ,
without removing the cause bv the writ of
Pone itito the King's- bench or Commou Picas.
[For the count, pleading and judgment in the
Nativo Habendo afler the remo? al, see Rast.
£ntr. 436, 437.] It is to be observed, that the
lord's right of seizure continued notwithstand-
ing his having sued out a Natifo Habendo,
unless the Villein brought a Libertate Probanda.
This writ, which did not lie except upon a
Natif o Habendo previously sued out, was for
remofal of the loitl's plaint in the Nativo Ha-
bendo for trial before the justices in eyre or
those of the King's -bench, and also for pro-
tecting the villein from seizure in the mean
time. This latter effect seems to have been
the chief reaaon for suing out the Libertate
Prolmnda; and therefore afler the 85th of
Edw. 3, Stat. 5, c. 18, which altered the com-
mon law, and gires a power of seizure to the
lord, nntwithstaading the pendency of a Liber-
tate 'Probanda, that writ probably fell much
into disuse, though subsequent cases, in which
it was bntught, aie to be found in the year-
books. ISee Fitzh. Nat. 77| to 79» and 1 1 Ben.
4, 49.

(m) Co. U»L 131.

Z%e Negro Case.

Probanda (n). The lord could not proeecoli
more than two villeins in one Nati? o Haben
but any number of ? illeins of the same b
might join in one libertate Probanda (o). ]
numissipns were inferred from the sli^fc
circumstances of mistake or negligence m
lord, from every act or omission which h
refinement could strain into an acknowk
ment of the villein's liberty. If the lord ve
the ownership of lands in the villein, rece
homage from him, or gave a bond to him,
was enfranchised, goffering the villein tc
on a jury, to enter into religion and be |
fessed, or to stay a year and a day in anc
demesne without claim, were enfranchisemc
Bringing ordinary actions against him, joii
with him in actions, answering to his act
withoot protestation of villenage, iuiparlinf
them or assenting to his imparlance, or snl
ing him to be vouched without counter-pleai
the voucher, were also enfranchisem
by implication of law {p). Most of the i
structive manumissions I have mentioned i
the received law, even in the reign of the
Edward (y). I have been the more partij
in enumerating these instances of eztraordii
fa? our to liberty ; because the anxiety of
ancestors to emancipate the ancient villeini
well accounts for the establishment of any r
of law calculated to obstruct the introdoctio
a new stock. It was natural, that the s
opinions, which influenced to discountem
the former, should lead to the preventioi
the latter.

f shall not attempt to follow vil-
lenage in the several stages of its J^^p
declme ; it being suflBcient here to
mention the time of its extinction, wbicfc
all agree, happened about the latter en<
Elizaoeth's reign or soon afler the accessio
James (r). One of the last instances, in wl
villenage was insisted upon, was Crouch's <
reportMl in Dyer and other books (s). An
try having been made by one Butler on si
lands purchased by Crouch, the question i
whether he was Butler's villein regardi
and on two special verdicts, the one in ej
ment Mich. 9th and lOtb Eliz. and the o
in assize Easter 11th Eliz. the claim of
lenage was disallowed, one of the reasons g
for the judgment in both being the wsn
seizing of the villein's person within 60
years, which is the time limited by the 32
Hen. 8, chap. 8, in all cases of hereditam

(n) Co. Litt. 139.

(o) Fiizh. Nat. Br. 78, C. D.

(p) See Litt. sect 803 to 209, and 3
Abr. 735, 736, and 737.

(q) See Britt cap. 31, and Mirr. ca|i
sect. 38.

(r) See sir Thomas Smith's Commonwe:
b. 2, c. 10, and Barringt. Obsery. on Ant. 2
Sd ed. p. 333.

(t) See By. 366, pi. 11, and 383, pi. 3^

(i) Accord. Bro. Read, on Ibe Stat
limitit 3S Hm. 8, p8ge ir.

The Nfgro Case.

__ ri hfP'B'^P^o'' H- Tbis is generally
mik H k*T« been the Imi case of villenBge ;
Ia ttera arc fnar nibnetiiient casea in jirint
Ohsm in UiUry 18th of Elizabeth (bi);
^Mfcr WM« a jutlgment in Easter Ist ol
iMMfi) : Ihc thini, which was nerer deter-
■M^ h»pp«n«d ia Trinity 8tli ol' James (y) \
■<** iiiunhHMsn late as Hilary IMti of
Jmm (a). From the lath nf James (he Ist,
lMf«i»n> Ibaa 150 years a^, the claim of
dwafv hft* not bren beard of in our courts
•fJMlier ; wiil nntliiog can be mure notorlnua,
tm Hmt Ibe Tsce of |nnjuHB, trim were onue
ia rii)eets ol' it, was about lliat time coni-
Ij v*m out by the continual and united
thm af dealbi and manumissions.
■ Iboo^ villenafe itieir is abielete, yet
bWuiifcity Umm rules, by which the claim of
Iwani^lated, are iiot yet buried in obliviuo.
IhtNtllc iBtfastry of our anceatora baa tranS'
MUri; nor Im us their posterily despise tbe
Mcnnd leii[Bcy. By a strange progress of
!■■•■ kAin, the roemory uf slavery expired
tarn fiiraUtcs ooe of the chief obstacles to the
(■udMJtien afittvery attempted lo he revived ;
mi At renffwMK reliijuea of llic learning re-
Ittt lo vUtma^, so Inn); consigoed lo gratify
ia ia*Mtig«ting' curiosity of tbe anliquary, ur
■ari ■■ a vpleodid appendage to lbs orna-
■oM «f tfa* ochnlar, tnusi oovr be drawn forth
-•■a Ibartr fsitliful repositories tor a more noble
r|«a«; to inform and gnide (he sober judg-
HI af tbio Court, aod as 1 trust 10 preserve
■ armultty from the miseries ol' domeslic sla-
wy.

^^ Littleton (a) aaya, etery lillein

«M> m either ■ villein by title of pre-
aJS^ acriptioa, to wit that he and his an>
oMIora hj*e been f illeius time oul
^ Faa'ij , or he ia a lillein by his own con-
■^^ m • court of record. And in another
fhta ti), bis description of a villein res^rjanl
Md «l a sUkin in grosa shews, that title can-
■■!■ nod* in eilhef without prescription or
csafa^MS. Time whereof no memory runs
liteaootrary, is on iotepurable incident to
(•try f«*aon|rttoa (c) ; and therefore, according
ts LwMod'* account of villenai^, tbe loi^
B*M pravc tlie slavery ancient and immemo-
nl ; 0( ibc 'tlleio must solemnly confess it lo
I* an io s court of justice. A alill earlier
"ler Uy» down Ibe rule in terms equally

:> ) Before this statute of Hen. the 8lh, the
-iir nf KniiBlioa seems to have lieen the coro-
i^awuf Hen, 3, asappeara hy the form of the
Xmv« H*b«iMlo ; though ia oilier nrits of rii;ht
baHniutimi by 31 E. 1, e. 39. was from the
«Ma»ae«mrut nf the rrtgu of Uich. tbe 1st.
(m) 8m Co. Uotr.400, b.
O) Yrf». «.

tl} This case is only tu be fnand ia
"~ ' '• AbHilgment, til. Villenage, pi. S3.

A. D. I77I. [;«

strong. No one,)ay« Brition (d), can be a villein
except of ancient naliviiy, or by acknovrledg-
menl. All the proceedings to cases of tiltena|re,
when contested, conform lo this idea of remote
antiquity in the slavery, and are quite irrecoQ-
cileable with one of modero coinmenL'emeut.

1. The villein in alt such suits (r) between
him and his lord was stileil tialwus ax well os
villanits; our Bncienl(,/") writers describe a
female slave by no otber name than that of
neif; and the technical name of the only writ
in the law for ihe recovery of a villein is equal-
ly remarkable, being always called tbe Nativo
Habcndo, or writ of neitiy. This peculiarity
of denominalion, wbiuh implies that villenage
ia a slavery by birth, mi)[bt perbapa of itself Be
deemed too slight a, founilBlioii tor any solii
argument ; but when combined with uiher cir-
cumstances more decisive, surely it is nni
without very considerable force.

3. In pleading villenage where il had not
been confessed on some former occasion, Ihe
lord always founded bis title on prescrtplion.
Uur year books, and books of entries, are full
of the forms used in pleading a tide lo villeins
regardant. In the Homine Replegiando, and
other actions where (he plea of villenage waa
tor the pur|iose of shewing the pluinlilTs dia-
abiliiy lo sue,. if ihe villein was r^iinlant, the
delendani alledq[ed, that he was seized of such
a manor, and that Ihe plainiifFaiid his ancestors
liad been villeins belonging to the manor lime
oul of mind, and that Ibe defendanl and hio
ancestors and all those whose estate he had in
the manor, had been seized uf the plaiotilTaod
all his ancestors as of villeins belongiug to ii (g).
In the Nativo Habendo the form of makiog
tide to a villein regardanl was in substance the
aame(A}. In fact, regardancy necessarily im-
plies prescription, being where one and his an-
cestors have lieen anneited lo a manor time oul
ofihememory of man (i). As to rilleinsin gross,
tbe cases relative lo thera are very few ; and I
am inclined to think, that there uever was any
great number of them in England. Tbe au-
thor of tbe Mirroir {k), who wrote in Ihe reign
of Edward the 3d, only mentiotis villeins regard-
ant : and air Thomas Smith, who was secre-
tary of stale Id tbe reign of Edward the eih,
says, that in his time be never knew a villein
in grass thrnugboul the realm (/), However,

(d) ' Nul ne poit estre villeyn fortque d«
■ auncienne nalivile ou par recognisance.*
Britl. Wing. ed. cap. 31, p. 78.

(e) tSee the form ol ihe wrils of Nalivo Ha-
bendo and Liberiote Probanda, and also of the
Alias Homine Keplegiando, where on the Aral
writ the shentf reiurus the claim of villenage.

(f) Brit. cap. 31 ic Lilt. sect. 1B6.

(g) Het Itaat. Entr. til. Homine Reple-
giando, 373, Ac Lib. Inint. 56.

(A) See tbe farm in Ub, Intnii. 97, 3c Rast
Entr. 401.

CO This ia agreeable lo what Liltleton sayfl
in sect. IQ'J, (k) Mirr. c. 3, g 38.

(I) Smiib's Common weal lb, b. 3, c. 10<

IS GEORGE UL

after % loof March, I do fiod placet ia tlie year-
books, where the form ofalledgini^ villenage io
groM is expressed, not io full terms, but in a
general ws^ ; and io all the cases I bare yet
aeen, the villcosge is alledged in the ancestors
of the person against whom it was pleaded (m),
and in one of them the words * time beyond
memory' (n) sre added, lint if precedents bad
been wsnting, the authority of^ Littleton, ac-
cording to whom the title to fiJIenage of each
kind, unleM it has been confessed must be by
prescription, would not hs?e left the least room
tor supposing the pleading of a prescription
less necessary on the claim of ? illeins in gross
than of thoie regardant

3. The kind of eridence, which the law re-
quired to prove villeoage, and allowed in dis-
£roof of it, is only spplicable to a slavery in
kiod and family, one uninterruptedly trans-
mitted through a long line of ancofttors to the
persfm against whom it was alleged. On the
lord's part, it was necessar;^ that he shoulil
prove the slavery against his villein by other
villnnv of the same blood (o), such as were
descmded from the same common male stock,
and would acknowledge themselves t illeins to
the lord ( p ), or those from whom he derived

(m) See 1 E. 2, 4.-5 E. S, 15.— 7 £. 8,
S49, & 11 E. 8, 344. In 13 E. 4, 8, b. pi. 4, &
3 b. pi. 1 1, there is a case in which villenage in
groiis is pleaded, where one became a villein in
gross by severai^ce from the manor to which he
had been regardant. This being the only case
of the kind I ha ye met with, I will state mo
much of it from the year book as is necessary
to shew the manner of pleading. In trespau
the defendant pleads, that a manor, to which
the ptaintifT's father was a villein regardant,
was given to an ancestor of the defendant in
tail; and that the manor descended to Cecil
snd Catharine ; and that on partition between
them, the villein with some lands was allotted
to Cecil, and the manor to Catharine ; and then
the defendant conveyed the villein from Cecil
to himself as heir.

(n) UK. 8,344.

(o) See Hro. Abr. Villenage, 66 Reg. Br.
117, a. Old Nat. Br. 43, b. Fitz. Abr. Ville-
nage, 38, 39. A bastard was not receivsble to
prove villenage, 13 £. 1. It. North. Fitzh.
Abr. 36, 6c Britt. Wing. edit. 88, a.

(p) in Fitzlierbert's Natura Brevium, 79.
B. It is said, that the witnesses must acknow-
1ed|k:e themselves villeins to the plaintiff in the
Nativo Habendo ; and there are many autho-
rities which favour the opinion. See Glanv.
rd>. .'i, c. 4. Britt Wing. ed. 81, a. 19 Hen. 6,
3'i, b. Old Tenures, chap. Villenage; and
the form in which the confession of villensge
bv the pisintiff's witnesses is recorded, in Rast.
iSntr. tit. Nativo Habendo, 401, a. However,
it mini be eoofetscdi that io Fitsberbert the
opinion tsdeUfertd with a qu^n; aod it is ao
iiwpaocilaMo wllk Um kiA Mhtof graotioc
vUWMh* "^ iso.;«Dtl»l,

The

Case,

[*4

his title ; and at least two witncnes (f) of this
description were requisite for the purpose.

(q) Fitzh. Nat. Br. 78, H. & Fitzb. Abr.
Villenage, b6 5t 37. — Also Briiton says, * no

* masle sauna plosurs nest mie receivable.'
Britt. Wingate's ed. p. 88. It is remarkable
that femalo, whether sole or married, were not
receivable to prove villenage against men.
' Sannk de un home ne puit ne doit estre trie
' par femmes.' Britt. Wing. ed. p. 88. The
reason ssttigned b more antient than polite. It
is said to be ' pur lour fira^lte,* and also be>
cause a man * est pluis digoe person que una
M'eroe* 13 £. 1. Fitzh. Abr. Villenage, 37.*

* " Antiently in Scotland the testimony of
women was not admiited in sny case. * Ano

* woman may not pass upon assize or be wimess,

* nather in ony instrument or contract, nor zit

* for preiving of ane persoun's sge. Neverthe-

* less gif tliair be ony contraverser tuiching the

* age of ony persoun, the mother or the nurice
( may be ressavit as witnessis for preiving thair-

* of.' " Balfour's Practicks, p. 378.

« By our constant usage, women are not
admitted as iostrumentary witnesses, and as
universal custom is law, so 1 doubt not but it
will be a nullity in any writing that is attested
by witnesses, who are both or even one of thena
women. And though the act 1681, mentions a
subscribing witness with the masculine particio
(he), yet that without the aubsequent usage ia
not exclusive of women/' Bankton's Inst. b.
1, tit. 1, sect. 7.

** Of old, women were rejected in most cases,
but they are for most part admitted, unlets
where the parties ought to have called wit-
nesses, for then they have themselves to blame
that did not make use of others ; and therdToro .
women are altogether incompetent witnesses to
deeds of parties, testaments, or instruments of
notaries.'* Bankton, biNik 4, tit. 33, a. 80.

So Stair (book 4, tit. 43, s. 9,) says, tba( in
civil cases women are not to be admitted aa
witnesses, except necessary.

Sir George Mackenzie (Probation by Wit-
nesses) says, ** Women regular iter are not wit*
nesses, neither in civil or criminal cases with as,
nor should they make as much faith with ua, •*•
criminalibut. The reason why women are ex-
cluded from witnessing, roust be either that
they are subject to too much compassion, and
so ought not to be more received in criminal
cases, than in any civil cases ; or else the law
was unwilling to trouble them, snd thought
it might learn them too much confidence, and
make them suliject to too much familiarity
with men, and strangers, if they were necessi*
tated to vsgue up and down at all courts, upoo
all occasions." See his Criminals, title 86, s. 4.

Erskine (book 4, tit. 8, sect. 88,) instructs
OS, that women were rather exempted than de-
barred from gif iog testimony.

Of the progress of the relaxation of this rule
I kaov nol or any dreumstantial history.

Mr* Hont (Gomiii. chap. 13,) and ibr. Bur^

«]

Tke Negro Can*

A. D. 1771.

\l»

Ntj, ID strict wu the Itw in thii respect, diat
ii the Natiro Habendo the defeo(|aiit was not
obtigcd to plead to the claim of villenage, un-
loi the lunl at Ihe time of declaring on his
tide bfogbt his witnesses with him into court,
mk iktf acknowledged themselres fillebs,
istfiwore to their coosangninitv with the de-
(Wnt (r) ; and if the plaintiff failed in ad-
Mag such prefioos evidence^ the judgment
if ibe eoart was, that the defendant should be
ftef for ever, and the plaintiff was amerced for
Ui&Jse daim (i). In other actions the pro-
Awtioa of soit or witnesses by the plaintiff,
pffvioosly to ihe defendant's pleading, fell into
dsose some time in the reign of Edward the
Ibrd; and ever since, the entry of snch pro-
taioa on the rolls of the court has been mere
fan, being always with an &c. and without
MouDgthe witnesses. But in the Natiro Ha-
hado the actual production of the suit, and
ilntbe examination of them, unless the defen-
hal released {t) it in court, continued to be in-
ifcasalvie CTcn down to the time when vil*
rage (a) expired.— Such was Ihe sort of tea-
linoay, by which only Ihe lord could support
ike liue of slavery ; nor were the means ot de-
faee on the part of the rillein less remarkable.
If he eouM prove that the slavery was not in
kiiUsed and family, heintitled himself to li-
boty. The atithor of the Mirroir (w) ex-
|RHly saySi that proof of a free stock was an
(fccnal iwlence against the claim of villenage ;
Hd even in the time of Henry the sec<»nd the
ha of Engfland was in this respect the same,
by the words of Glan? ille. In his
of ihe trial (x) of liberty, he says, that

(f > Fttz. Nat. Br. 78, H. Fitzh. Abr. Ville-
■STtSt LJb. Intrat. 97. llast. Entr. 401.
Aqr.fr. 87.

(i) In Fitzh. Abr. Villenage, 38, there is an
inUDce of such a judgment, merely for the
pliialiff*8 failure in the production of bis wit-
BC8CS at the time of declaring on his title.

(t) 8ee 19 H. 6, 39 b. a case in which the
4f(ni«lAot releases the examination of the suit.

(u) The last entry in print of the proceed-
is|s in a Native H abendo contains ibe names
•f cfae secta or suit produced, and their acknow-
kigairat of villeiiajB^e on oath. See the case
•f Jemey aflrainst Fmcb, Hill. 18 Eliz. C. B.
U. Efiir. 406, b. (w) jVlirr. c. 2, § 28.

(g) Glaov. lib. 5, c. 4.

Mt (Treatise on tar. branch, of the Crim. Law

if likasiand, chap. 17,) hare cited several cases,

isd quoted other authorities, from which it

ly^cars that the rule was recognized to so late

t ffnod as the beginoiiig of the 18th century.

hnaow abrogaled (how or when I have not

•wa distinctly staled) »» except*' says Mr. Bur-

••«, •* in ihe case of instruineotary witnesses,

yWe wofoen are in practice still excluded.

I kaow of iio case, bowerer. where this point

wii e»ev mrgoed, or receifed a decision : and it

•JnjAtful whether such an objecUon wouM

the iierson cluming it shall produce * plnres de
prozimis et consanguineis de eodem stipite
unde ipse ezierat exeuntes ; per quorum liber-
tates, si fuerint in curift recognitae et probatoe,
liberabitur it jogo servitutis qui ad libertatem
prochimatur.' But the special defences which
the law permitted against villenage are still
more observable ; and prove it beyond a con*
tradiction to be what the author of the Mirroir
emphatically stiles it (y), a slavery of so great
an antiquity that no free stock can be found by
human remembrance. Whenever the lord
sued to recover a villein by a Native Habendo,
or alledged villenage in other actions as a dis*
ability to sue, the person claimed as a villein
might either plead generally that be was of
free condition, and on the trial of this general
issue avail bjmself of every kind of defence
which the law permits against villenage ; or
he might plead specially any single fact or
thing, which if true was of itself a legal bar to
the claim of villenage, and in that case the
lord was \:ompellable to answer the special
matter. Of this special kind were the pleas of
Irastardy and adventif. The former was an al-
legation by the supposed villein that either him-
self or his father, grand-father or other male
ancestor, was bom out of matrimony ; and this
plea, however remote the ancestor in whom
the bastardy was alleged, was peremptory to
the lord ; that is, if true it destroyed the claim
of villenage, and therefore the lord could only
support his title by denying the fact of bastardy.
This appears to have been the law from a great
variety of the most ancient authorities. The
first of them is a determined case so early as
the Idth of Edward the second (x), and in all
the subsequent cases (dS the doctrine is received
for law without once being drawn into ques-
tion. In one of them (6) the reason whv bas-
tardy is a good plea in a bar against villenage
is expressed in a very peculiar manner ; for
the words of the book are, " when one claims
any man as his villein, it shall be intended al-
ways that he is his villein by reason of stock,
and this is the reason that there shall be an an-
swer to the special matter where he alleges
bastardy ; because if his ancestor 'was a Imis-»
tard, he can never be a villein, unless by sub-

(y) < Est subjection issuant de cy grand an-^

* tiquite, que nul franke ceppe purra estre trove

* per humaue remembrance.' Mirr. c. 2,
§28.

(x) 13 E. 2,408.

(a) Hill. 19 E. 2. Fitzh. Abr. Villenage,
32.— 39 E. 3, 36.-43 E. 3, 4—19 Hen. 6,
11 & 12.— 19 Hen. 6, 17.— Old Tenures,
chap. Villenage.- Co. Litt. 123, a. In the
case 19 H. 6, 17, there is something on the
trial of bastardy in cases of villenage, explain-
ing when it shall be tried by the bishop's certi-
ficate and when by a jury. See on the same
subject Fitzh. Abr. Villenage, 32, & Lib. Intrat.
S5, a. which latter book coatains the record of
a case where the trial was by the bishop.

(b) 43 £. 3, 4.

47] 12 GEORGE III.

■equent tcknowledgrment io a court of record."
The force of this reason will sppear fully on
recollection, that the law of England always
derives the condition of the issue from that of
the father, and that the father of a bastard
bein^ in law uncertain (c), it was therefore im-

Cible to prore a bastard a slave by descent,
espect to the plea of adventif, there isaome
little confusion in the explanation, our year-
books pre us, of the persons to whom the de*
scrintion of adventif is applicable ; but the form
•f toe plea will best shew the precise meaning
of it. It alledged (cQ, that, either the person
himself who was claimed as a villein regardant
to a manor, or one of his ancestors, was born in
a county different from that in which the
manor was, and so was free, which was held
to be a necessary conclusion to the plea. This
in general was the form of the plea, hut some-
times it was more particular, as in the follow-
ing case (e). In trespass, the defendant pleads
that the plaintiff is his villein regardant to his
manor of Dale ; the plaintiff replies, that his
great-grandfather was bom in C, in the county
of N, and from thence went into the county of
8, and took lands held in bondage within the
manor to which the plaintiff is supposed to be
a villein regardant, and mo after time of me-
mory his great-grandfather was adventif. It is
plain from this case, that the plea of adventif
was calculated to destroy the claim to villenage
regardant, by shewing that the connection of
the supposed villein and his ancestors with the
manor to which they were supposed to be re-
gardant, had begun within time of memory ;
and as holding lands by villein-services was
anciently deemed a mark (y), though not a
certain one, of personal bondage, I conjecture
that this special matter was never pleaded, ex-
cept to distinguish the mere tenant by villein
services from the villein in blood as well as
tenure. But whatever might be the cases
pro|ier for the plea of adventif, it is one other
incontrovertible proof, in addition to the proofs
alrcaily mentioned, that no slavery having
had commencement within time of memory
was lawful in England ; and that if one an-
cestor could be found whose blood was nn-
tarnirhed with the stain of slavery, the title
of villenage was no longer capable of being
sustained.

. (e) Co. Lilt. 123, a.

(d) 13 E. 1. It. North. Fitz. Abr. Ville-
oage 36. 19 E. 2. Fitz. Abr. Villenaire 32. 33
E. 3. Fiiz. Abr. Visne 2.— 39 £. 3, 36. —
41 E. 3. Fitz. Abr. Villenage 7.-43 K. 3, 31.
—50 E. 3. Fitz. Abr. Villenage, 24.— 19 H. 6,
11.— 19 H 6, 17.

(e) 31 E. 3. Fiiz. Abr. Visne 1.

(f) Fiizlierbert says, " if^ a man dwells on
lands which have been held in villenage time
out of niiud, he shall be a villein, and it is a
good pre«cripiif»n ; and against this prescription
tt is a good plea to aay that hia father or grand-
fiuher WM mimttiffi • Ibs. Fill. ifcr. Till*.

MgVfli.

The Negro Case.

[48

Such were the striking peculia- hqv it ii uut
rities in the manner of making title |^ ntn or
to a Tillein, and . of contesting the tS^hSSe
question of liberty ; and it is scarce Suot!*"^
possible to attend to the enumera-
tion of them, without anticipating me in the
inferences 1 have to make. — ^The law of Eng-
land onl^ knows slavery by birth ; it requires
prescription in making title to a slave ; It re-
ceives on the lord's part do testimony except
such as proves the slavery to have been always
in the blood and family, on the villetn'a part
every testimony which proves the slavery to
have been once out of his blood and family ;
it allows nothing to sustain the slavery except
what shewa its commencement beyond the time
of memory, every thing to defeat thealaverj
which evinces its commencement within the
time of memory. But in our American colo-
nies and other countries slavery may be by
captivity or contract as well as by birth ; no
prescription is requisite; nor is it necessary
that slavery should be in the blood and family,
and immemorial. Therefore the law of Eng-
land is not applicable to the slavery of our
American colonies, or of other countries. — If
the law of England would permit the intro-
duction of a slavery commencing out of Eng-
land, the rules it prescribes for trying the tiUe
to a slave would be applicable to such a slavery ;
but they are not so ; and from thence it is evi-
dent that the introduction of such a slavery h
not permitted by the law of England. — ^The
law of England then excludes every slaTery
not commencmg in England, every slavery
though commencing there not being antient
and immemorial, l^llenage is the only slavery
which can possibly answer to such a de-
scription, and that has long expired by the
deaths and emancipathns of all those who
were once the objects of it. Consequently
there is now no slavery which can be lawful in
England, until the legislature shall interpose
its authority to make it so.

This is plain, unadorned, and direct reason-
ing ; it wants no aid from the colours of art, or
the embellishments of language; it is com-
posed of necessary inferences from facts and
rules of law, which do not admit of contradic-
tion ; and I think, that it must be vain to at-
tempt shaking a superstructure raised on sucb
solid foundations.

As to I he other arguments I have to adduce
against the revival uf domestic slavery, I do con-
fess that they are less powerful, being merely
presumptive. But then I must add, that they
are strong and violent presumptions ; such at
furnish morecertiTin grounds of judicialdecisioop
than are to be had io many of the cases which
l>ccome the subjects of legal controversy. For

2dly. 1 infer that the law of ad. Ariumcrt
England will not permit a new JSlSJnlfroS*
slavery, from the fact of I here iiiri«itor
never yet having been anv slavery h'!^f"bS
but viAenage, and from the actual ?"?*>';^nr
eztinetion of that antient slavery. •■4 fvom im
IfaaewsUrcry coaM have law- tSu'SSHt!^

49]

The Negro Case.

A. D. 1771.

[50

fnllj eomineiiced here, or lawfully hare been
intndaced from a foreign country, is there the
mH remote prohabilily, that in the course of
ao Btay centuries a new slavery should oe?er
har< arisen ? If a new race of slaves could
kie been iotroduced under the denomination
•f riHeiosi, if a new slavery could have been
hm time to time engrafted on the antient
Mck, would the latvs of villenage have once
kcame obsolete for want of ohjcctii, or would
Mt i successive supply of slaves .have conti-
■aed their operation to the present times ? But
Mtvithstanding the vast extent of our com-
■ercial connections, the fact is confessedly
•iberwise. The autient slavery has once ex-
pired ; neither natives nor foreif^ners have yet
Mceeeded in the introduction of a new slavery ;
nd from thence the strongest presumption
arifts, that the law of England doth not permit
nch an introduction.

u Arriami Sdly. 1 losist, that the unlaw-
tmai 'fran fulncss of introduciii^' a new sla-
ifernin uT very into Eugknd, from our Ame-
Uffn^T rican colonies or any other coun-
eaiirjrt. i^y^ jg de<lucil)le-froiii the rules of

the Eo$;1ish law concerning contracts of ser-
vice. Tlie law of England will not permit any
Ban to enslave himsetf by contract. The ut-*
■mst, which our law allows, is a contract to
Krve for life ; and some perhajis may eyen
doubt the ralidity of such a contract, there
keiit^ nu iletermined cases directly atfirming its
hwfuliKss. I n the rei(;n of Henry the 4th (^),
there is a case of debt, brou;^ht by a servant
S'^aiokt the master*:; executors, on a retainer to
Krve for term of life in peace and war for 100
^AiTf a- year ; but it was held, that Uebt did
noiUdr want of a speciulity ; wliicli, as was
a«i^'J, woulil not have been necessary in the
cut ut' a common labourer's salary, because,
»» tiie case in explained by Brooke in abridging
ii. (he Utter is bound to serve by statute (A).
Tii;4 case is the only one f can find, in ivhich
a contract to ferve for life is mentioned ; and
ev«n in this case, there is no judicial decision
M the force of it. Nor did the nature of the
civk require any opinion upon such a contract ;
tbc action not being to establissli the contract
a^in»t the servant, but to enforce payment
i^Tsinst the master's executors for arrears of
salary in respect of service actually per-
fcnned ; and therefore this case will scarce
War any inference iu favour of a contract to
Mrve for life. Certain also it is, that a service
for life in Ent;land is not usual, except in the
€a»fnf a militar}' person ; whose service, though
ia effect for life, is rather so by the o|)cration
«Cibe yearly acts for regulating the army, and
ef tb4* pf-rpetaal act for governing the navy,
tiiin iu cnn<iequenceof any express agreement.
Hiiwrver, 1 do not mean absolutely to ileny
Ike lawfulness of agreeing to servo for life;
■•r Will the inferences 1 shall draw from the
nicsof law concerning servitude by contract,
be in the least affected by admitting such

(i) « H. 4. 14.

(h) Bro. Abr. Dett. 63.

agreements to be lawful. The law of England
may perhaps give effect to a contract of ser-
vice for life; but that is the ne plus ultra of
servitude by contract in England. It will not
allow the servant to invest the master with an
arbitrary power of correcting, imprisoning, (i)
or alienating him; it will not permit him to
renounce the capacity of acquiring and enjoy-
ing property, or to transmit a contract of ser«
vice to his issue {k). Iu other word*'', it will not
permit the servant to incorporate into his con-
tract the ingredients of slavery. ; Aud why ia
it that the law of England rejects a contract of
slavery? The only reason to be assigned is,
that the law of England, acknowledging only
the autient slavery which is now expired, will
not allow the introduction of a new species,
even though founded on consent of the party.
The same reason operates with double force
against a new slavery founded on captivity in
war, and introduced from another country.
Will the law of England condemn a new sla-
very commencing by consent of the party, and at
the same time approve of one founded on force,
and most probably on oppression also? Will the
law of England invalidate a new slavery com-
mencing in this country, when the title to the
slavery may be fairly examined ; and at the
same time give efiect to a new slavery intro-
duced from another country, when disproof of
the slavery must generally be impossible?
This would be rejecting and receiving a nevf
slavery at the same moment ; rejecting slavery
the least odious, receiving slavery the most
odious : and by such an inconsistency, the
wisdom and justice vT the English law would
be completely dir'ionoured. Nor will this rea-
soning be w^ukened by observing that our law
permittc::! vilienage, which was a slavery con-
fessed to originate from force ^nd capttuty in
war; because that was a slavery coeval with
the first formation of the English constitution^
and conspqunnlly had a commencement here
prior to the establishment of those rules which
the common law furnishes against slavery by
contract.

Having thus explained the three ExaminaCom
great arguments which I oppose to J[, [{|* "J^J^^
the introduction of domestic sla- oi-uwj
very from our American colonies, bciotc tin.-

(i) Lord Ilobart says, ** the body of a free-
man cannot he made subject to distress or im-
prisonment by contract, but only by judg-
ment." Hob. 61. I shall have occaMon to
make use of this authority agaiu in a subse-
quent part uf this argument.

(k) Mr. IVIolloy thinks, that servants may
contract to serve for life ; but then he adds,
" but at this day there is no contract of the
ancestor can oblige his posterity to an here-
ditary service ; nor can such as accept those
servants exercise the ancient right or dominion
over them, no not so much as to use an extra-
ordinary rigour, without subjecting themselves
to tbc law." Moll, de Jur. Marit. l^t ed. b. 3»
c. 1, s. 7, p. U98.

E

51] 12 GEORGE IIL

StilSJjr •' er any foreign country, it is now
proper to enquire, how far the sub-
ject \s affected by the casei and judicial deei-
■ioni since or just before the extinction of ?il-
lenaf^e.

The first case on the subject is one mentioned
in Mr. Rush worth's Historical Collections (/);
and it is ihere said. That in the 11th of Eliza-
beth, one Cartwrifjrht brought a slave from
Bussia, and would scour^^e him ; for which he
fras questioned ; and it was resolved, that En(f-
land was too pure an air for a slave to breathe
in. Ill order to judge what degree of credit is
due to the representation of this case, it will be
proper to state from whom Mr. Rusbworth re-
ports it. In 1637, there was a proceeding by
information in the Star-Chamber against the
famous John Lilbume, for printing and pub-
lishing a libel ; and for bis contempt in refusing
to answer interrogatories, he was by order of
the Court imprisoned till he should answer, and
also whipped, pilloried, and fined. Uis iropri-
aonment continued till 1640, when the Lioog
Parliament befiran. He was then relessed, and
the House of Commons impeached the judges
of the Star -Chamber for their proceedings
•gainst Lilburne. In speaking to this impeach-
ment, the managers of^the Commons cited the
case of the Russian slave. Therefore the truth
of the case doth not depend upon John Lil-
burne's assertion, as the learned observer on the
antient statutes (m) seems to apprehend ; but
reals upon the credit due to the managers of
the Commons. When this is considerni, and
that the vear of theL>reign in which the case
happened is mentioned, with the name of the
person who brought the slave into England ;
that not above 73 or 73 years had intervened
between the fact and the relation of it ; and also
that the case could not be supposed to have
any influence on the fate of the impeachment
•gainst the judges ; 1 see no great objection to
a belief of the case. If the account of it is
true, the plain inference from it is, that the
•lave was become free by bis arrival in Eng-
land. An^ other construction renders the case
unintelligible, because scourging, or even cor-
rection of a severer kind, was allowed by the
law of England to the lord in the punishment
of his villem ; and conseouentiv, if our law had
recognized the Russisn slave, bis master would
Jiave been justified in scourging him.

The first case in our printed Reports is that
of Butts against Penny (n), which is said to
have been adjudged by the Court of King's-
bench in Trinity term, S9th of Chsries the 3d.
It was an action of trover for ten (o) negroes ;
•nd there was a special verdict, finding, that

(I) Rushw. ▼. 3, p. 468.

(m) Barr. Observ. on Ant, Stat. Sd edit,
p. 241.

Ca; 2 Lev. 301, and 3 Keb. 785. See Hill,
f 9 Char. 2, B. U. Rot. 1116.

(o) According to Levins^ the action was for
too negroes ; but it it • oifttke, the record
msatioDiiig 10.

The Negro Case.

[M

the negroes were infidels, subjects to an infidel
prince, and usually bought and sold in India
as merchandize by the custom amongst mer«
chants, and that the plaintiff had bought them,
and waa in possession of them ; and that the
defendant took tliem out of his possession. The ^
Court held, that negroes being usually bought
and sold amongst merchants in India, and be*
ing infidels Qi), there might lie a properly ia
them sufficient to aiaintain the action ; and it
is said that judgment Nisi was given for the
plaintiff, but that on the prayer of the counsel
for the defendant to be further heiird in the
case, time was given till the next term. lu
this way our reporters state the case ; and if
nothing further appeared, it might be cited ai
an authority, though a very feeble one,, to sheir
that the master's propert^r in his negro slaves
eoDtinues after their arrival in England, an4
conseonentljir that the negroes are not emanci-
pated by being brought here. But having •
suspicion of some defect in the state of the
case, 1 deaired an examination of the Roll (9) ;
and according to the account of it given to me,
though the declaration ia for negroes generally
in I^ndon, without any mention of foreign
parts, yet from the special verdict it appears,
tliat the action was really brought to recover
the value of negroes, 6f which the plaintiff had
been possessed, not in England, but in India*
Tiierefore this case would prove nothing in fa-
vour of slavery in England, even if it bad re-
ceived the Court's ju^ment, which however
it never did receive, there being only an * olte-
* rius consilium' on the Roll.

The next case of trover was between Oell
and Cleve in the Common-Pleas, and was

7.

(p) According to this reasoning, it is lawful
to have an infidel alave, but not a Christian
one. This distinction, between persons of op-
posite persuaaions in religion, is very ancieut.
Amongst the Jews, the condition of toe Hebrew
slave had many advantages over that of • slave
of foreign extraction. [See sect. 37, of the Dis-
sertation on Slavery prefixed to Potgiesser. Jua
Germ, de Stat. Serv. J Formerly too the Ma-
homedans pretended, that their religion did not
allow them to enslave such as should embrace
it ; but, as Bodin says, the opinion was little at-
tended to in practice. (See Bodin, de Republica,
lib. 1, cap. 5, de imperio servili.) A like distinc-
tion was made in very early times amongst
Christisns ; and the author of the Mirroir in one

Klace expresses himself, as if the distinction
ad been adopted by the law of England. (See
the Mirr. c. 3, s. 38.) But our other ancient
writers do not take the least notice of such •
distinction, nor do I find it once mentioneil in
the year-books ; which are therefore strong pre-
aumptive evidence against the reception of it
in our courts of justice as law, however the
opinion may have prevailed amongst divines
and others m speculation. See Barr. Obaerv.
Ant. Stat 3 edit. p. 239.

(q) The Bell wm eyamiori for me bj •
friend.

Tfie Negro Case.

. ._ _ _. m SlhorWilliam SDtl

la lb« report or Ibiicue(r), tlieCdun
sbhI l« bave held, that Iroter will lie far a
■*tnWy, brcause n^i^ro^i are liealhens ; Bud
tfwrfuc m man may hare proi^erl^ In them,
Mddw Court without avermvot will lake no-
«BFlh*l Ihev are b^lhens. On eiaminalion of
Ac IMI (•).*! llDil tlial the action was brought
trrariona article* of merchaiidize aa welt at
AewfTo; anil I iiupeci, tliat ia lliis cB«e, as
•cll a* the Tonner one of Dutu aui] I'puny, the
actim wa« fur ■ neTro in America ; but ibe de-
cbntton belna: laij ^nerally , and there btiiig
•■■prciftl verdict, it n now loo late to nacertaia
tW fiteL I will therefore luppose tbe action
bfaB*e been for a negro in biiglaiid, and ad-
ait that it tends la shew the lawlulnen of har-
»f negn alave* io England. But then if the
MM ia la be anderslood in Ibii <eiiEe, I eay
ttat it appears to have been ailjiulgeJ without
Mlnnn «r|^n>enl ; that there I9 no rrewniag
fadMKport of tbJKcaselo impeach tbe )>Hn-
■flaaaftaiT, on which I have urgued a^Hiast
tM r«*i*al of lUiery in Encjland ; ibil unless
tbiac principlea cm be cniilroverled with suc-
•n. It will tw impossible Io sunain the auiho-
ntjafaurb a case; and further, tbatilalandi
- ■■ -d by a subsequent case; in which
•a al'slufery came direcily before the

Tbe anty other reported case of trover ia
tM aT Kmtlh agaiiiit fiuulil, which was ad-
>d|nl, UkIi. 4 Ann, in ibe KingVbench. Io
barer (() for screral things, anil among tbe
mt far a oegro, not guilty waspleaded, and
4(ra waa a verdict tor the plainlilf with several
^■Hia, 30/. being gi*en for Ibe negro ; and
•huiflianient on a molian in arrest of juilg-
■-la, lb« Courl held, that trover did not
I* Ir a oegrn. If in Ibis case the action
■M br a negro in Erijflanil, tbe judgment
B It ii > direct contradiction to the caee
•TGdly and Cleve. But 1 atn inclined to
Ihak, that In 'this, as well as in the former
tma vf trover, the negroea for which the
uaoM wvrc brought, were not in England ;
ia< tbat IB ail of Ibeiii the question was
at aa itie lawfulness of having negro slaves
i« Ensland, bol merely whether troier wag
0* pniptr kind of artion fur recovering the
falucal a oi-gn) unlawfully detained from the
•raw ia America and Inilia. The things, for
■hiA intvrr to griifral lies, are those in which
e property, without

> tb* u

f llien

I tht

■sauv'a power over Itie stave dulh nut extend
tahaa TiTr, and couteijuently the master's pro-
ffflT in iltaalateia in Mime degree qualified
u'liiBiled. Buppoaing tberefore the cases uf
Mirr ID bare b«wa delermiaed on ttiis dis-
■nioo, I will not insisl upon any present
- -^t frum ibem in argument ; ih'iiigh
Imi iif llirni, if it will benr any tnateriul

1>1 I L. Baym. 1*7.

fij (life TriiL A W.A:M. C. O. IL.I1. NMOT

(ij 3Wk. 0M.— Sotldao, 1 L. Rayin. UT.

[54

the King's bench in Hilary Sth si
lisni the 3d, Trespass vi ti artnis whs bn)ii|<bt
by Chamberlain (u) against Harvey, fur lakiii(f
a negro vf the value uf 100/. and by tlie special
verdict it appears, that tbe negro, for Hhich
the pluinlilT sued, bad been brouglit from Bar-
badoes into Eneland, and was here bsjilized
without the plaintiff's consent, and at ibe tima
when the treiipass was alleged, was in the de-
fendant's service, and had 67. a-year lor wages.
In the argUDieniof tliis case, three qiiesiions
were made. One was, wliether tbe fads in
the verdict snlEcienily shewed that the plaintiff
had ever had a vested property in tlie n^ro (m) t
anoltier was, whether that prO|ierty was not
devested by bringing Ibe negro into England :
and the third wss, whether trespass lor laking
a man of the value of iOOl, was the proper ac-
tion. After several argumenls, Ibe Court gava
Judgment against (be plaintiff. Bull do cuo-
tess, tbat in the reports we have of Ihe case, no
opinion on the great question of slavery is
mentioned ; it Incoming unnecesssry to de-
clare one, as llie Court held, thai Ibe ac-
tion should have been an action to recoret
damages for the loss of Ibe service, and not to
recover the value of the slave. Of this case,
therefore, 1 shall not attempt to avail my»elf.

But the next case, wbicli was an action of
Indebitatus Assumpsit in the King's-bench by
Smith against Browne nod Cowper (f), la
more to the purpose. The plaintiff declared
for SO/, for a negro aold by him to tbe deten-
danis io London ; and on motion in arrest of
judgment, tbe Court held, that ihe plaintiff
should have averred in Ibe declaration, tbat the
negro at ibe lime of tlie sate was in Virginia,
and tbat negroes by tbe laws and slalutes of
Virginia are saleahli' Q/]. In Ibe^e words ibere
is a direct opinion aguinst the slavery of ne<
groes in England: fur if it was laHful, the
negro would hare been saleable and transfer*
able here, a« well as in Virginia j and staling,
that tbe negro at the time of Ibe sale wa> ia
Virginia, could not have been ejiseiiiisl lu Itta

(u) 1 L. Raym. 146. Carlli, 396, and 5
Moil. mi).

(ai) The fuels which occasioned this ques-
tion, 1 have umiiteit in the stale of (be case ;
because ihev are nut material to tlie questiou of
slavery in Entilnnd.

(i) a iiiulk. C66. Tbe case is not reported .
iu any other bunk ; and in Salkehl the lime
when (he c*<ie was delermuieil is iiinitled. But
it appears to have been iu the Klng'shench,
by Ibe inentiun of lord chief juiiice Holt and

Mr. J. I

(y) Tbe reporter adds, that Ibe C'Hirt di-
rected, thai the plaintiff should amend his ile-
clamlion. But after venliui it caooot surely
be tbe practice to permit so essential an amend-
ineiil ; and iherefuir tbe reporter muit bate
mitundcrstovd the Courl'a Jircclion.

fiS]

IS GEORGE III.

The Negro Case.

[56

BuflicieDcy of the declaration. But tke in-
fluence of this case, on the question of slavery,
is not by mere inference frona ibe Court's opi-
nion on the plaintiff's mode of declaring in his
action. The lanij^uage of the judges, in giving
that opinion, is remarkably strong against the |
slavery of negroes, and every other new sla-
very attempted to be introduced into England.
Mr. Justice Powell says, ** In a villein the
owner has a property ; the villein is an inhe-
ritance ; but I be law takes no notice of a ne-
gro." l/ord Chief Justice Holtis'still mnreex-
plicit ; for he says, that " one may be a villein in
England ;" but that ** as soon as a negro comes
into England, he becomes free." The words of
these two great judges contain the whole of the
proposition, fur which I am contending. They
admit property in the villein ; they deny pro-
perty in the nesro. They assent to the old
slavery of the villein: they disallow the new
slavery of the negro.

I beg leave to mention one other case, chiefly
for the sake of introducing a strong expression
of the late lord chancellor Northington. It is
the case of Shanley and Hervey, which was de-
termined in Chancery some time in March
1762. The question was between a negro and
his former master, who claimed the benefit of
a * donatio mortis caus^' made to the negro by
a lady, on whom he had attended as servant for
several years by the permission of his master.'
Lord Northington, as 1 am informed by a
friend who was present at the hearing of the
cause, disallowed the master's claim with great
vrarmth, and gave costs to the negro. He
particularly said, ** As soon as a man puts toot
00 English ground, he is free : a negro may
maintain an action against his master for ill
iisag^e, and may have a Habeas Corpus, if re-
strained of his liberty" (x).
Objection* Havitig obscrvcd upon all the

m:*de lo life csses, 10 wliicli thcrc 18 any thing
"fn"ih?**. *^ ^^ found relative to the present
sentUHrul' ' lawfulness of slavery in England;
"nTnlindr' It is time to consider the force of
c(atcd«iMiui- iiie several objections, which are

(z) In the above enumeration of cases, I
have omitted one, which nus sir Thomas Gran-
tham's case in the Common-Pleas, Hilary (2 &
3 Jam. 12. Being short, I shall give it m the
words of the I{e|K)rt. ** He bought a monster
in the Indies, which was a man of that coun-
try, who had the shape of a child growing out
of his breast as an excrcKcrncy all but his head.
This man he brought hither, and exposed to
the sight of the people for profit. The Indian
turns Christian and was baptized, and was de-
tained from his master, who brought a Horoine
Replegiaiido. The sheriff returned, that he
had replevied the body ; but doth not say the
body in which sir Thomas claimed a property ;
whereupon he was ordered to amend his return,
aitd then the Court of Common-I'leas bailed
him." 3 Mod. 130. It doth not appear, that
the'feturn was ever argued, or that the Court
gave any opinion oo tbiacaae ; and therefora AO-
Uif **' *^ ioff rred from it*

likely to be made, as well to the inferencea I
have drawn from the determined cases, at to
the general doctrine I huvc been urging.

1. It may be asked, why it is that the law
should permit the ancient slavery of the viHein,
and yet disallow a slavery of modern com-
mencement?

To this I answer, that villenaofe sprung up
ainongst our ancestors in the early and barba-
rous state of society ; that afterwards more
humane customs and wiser opinions prevailed,
and by their influence rules were established
for checking the progress of slavery ; and that
it was thought most prudent to eflect this great
object, not instantaneously by declaring every
slavery unlawful, but gradually by excluding
a new race of slaves, and encouraging the vo-
luntary emancipation of the ajcieot race. It
might have seemed an arbitrary exertion of
power, by a retrospective law to have annihi-
lated pro|)erty, which, however inconvenient,
was already vested under the sanction of ex*
istiug laws, by lawful means ; but it was policy
without injustice to restrain future acquisitions.

3. It may be said, that as there is nothing
to binder persons of free condition from be-
coming slaves by acknowledging themselves to
be villeins, theret'ore a new slavery is not con-
trary to law.

1 he force of this objection arises from a sup-
position, that confession or acknowledgment of
villenage is a lefpil mode of creating slavery ;
but on examining the nature of the acknow-
ledgment, it will be evident, that the law doth
not permit villenage to be acknowledged for
any such purpose. The term itself iinporta
something widely different from creation ; the
acknowledgment, or confession of a thing, im-
plying that the thing acknowledged or con-
fessed has a previous existence ; an<l in all
cases, criminal as well as civil, tht law intends,
that no roan will confess an untruth to his own
disadvantage, and therefore never requires
proof of that which is admitted to be true by
the person interested to deny it. Besides, it
is not allowable to institute a proceeding for the
avowed aud direct purpose of ackno\» ledging
villenage ; for the law will not allow the con-
fession of it to be received, except where vil-
lenage is alledged in an adverse way ; that is,
only (a) when villenage was pleade<i by the
lord against one whom he claimed as his vil-
lein ; or by the villein against strangers, in
order to excuse himself from defending actions
to which his lord only was the pro|>er party ;
or when one villein was produced to orove vik
lenage against another of the same blood who
denied the slavery. If the acknowledgmi^nt
had been permitted as a creation of slavery,
would the law have requiretl, that the confes-
sion should be made in a mode so indirect ami
circuitous as a suit professedly commenced for
a different purpose? If confession is a creation
of slavery, it certainly oiust be deemed a
creation by consent ; but if confession had been
adopted as a voluntary creation of slavery,

(a) Co. litt. ISli b.

57}

The Negro Cote.

A. D. 1771.

[68

woold the law have restrained the courts of

jostice from receiving confession, except iu an

adverse way ? If confession had been allowed

as a mode of creating slavery, would the law

have received the confession of one person as

|Md evidence of slavery in another of the

«ae bkM>d, merely because they were descend-

§i from tlie saiue common ancestor ? This last

orcamalance is of itself decisive ; because it

iMcssarily implied, that a slavery confessed

vas a a&avery oy descent.

On a ironsideration of these circumstances

sttendin^ the acknowletlgment of villenage^ I

ihaak it impossible to doubt its being merely a

csBfemioD of that antiquity in the slavery,

which was otherwise necessary to be proved.

Bat if a doubt can be entertained, the opinions

sf the gjreateat lawyers may be produced to

refliove it, and to shew, that, in consideration

sf Uw, the person confessing was a villein by

dcseeot and m blood. In the year-book of 43

£. 3, (6), it is laid down as a general rule,

** that when one claims any mau as his villein,

it riiall be intended always thai he is his vil-

ku by reason of stock.*' Lord chief justice

Hobart considers villenage by confession in

this way, and says (c), ** the confession iu the

court of record is not so much a creation, as.it

if in supposal of law a declaration of rightful

liUenage before, as a 'confession in other

ictiuos." Mr. Serjeant Rolle too, in his

skitigmeot, when he is writing on villenage

bj acknowledgment, uses very stron*; words to

the same effect. He says in one idace (d)^ ** it

lemH int«!nded that title is made that he should

be a villeio by descent," and in another place

(c), ** it seems intended that title is made hy

inscription, wherefore the issue shoultl also

bii'iiifiiis." The only instance I can find, of

a .N<iivo Habenilo founded on a previous ac-

Jcsb'siedgmeot of viilenaffe, is a stronj|r atitho-

\ii\ tfi the same purpose. In the 19lh of Ed ward

2, \J') the dean and chapter of London brought

iwrit ofNetfty to recover a viilein, and con-

d«ied their declaration with mentioning his

aekaowledgment of the villenage on a former

Qccasioo, instead of producing their suit, or

anaesses, as was necessary when the villenage

bad not been confessed : but notwithstanding

ibe acknowledgment, the plaintiffs ailedgeda

seizin of the villein with eaplees, or receipt of

profits from him, in the usual manner. This

case is another proof, that a sei/in previous to

tiie acknowledgment was the real foundation

At ibe lurd*s claim, and that the acknowledge

neat was merely used to estop the villein from

CAQtesting a fact which had been before so-

kmoly confessed. However, 1 do admit, that

sader the form of acknowledgment there was

a possibility of coUusively creating slavery.

but tliis was not practicable without the con-

csrrence of the person himself who was to be

(t) 43 E. 3. 4-

(c) Hob. 99.
Ro. Abr. 73S. pi. 6.
(€j lb. pi. 8.
; Fits. Abr. Villeiiage, 34.

9

the sufferer by the fraud ; and it was not pro-
bable, that many persons should be found so
base in mind, so false to themselves, as to sell
themselves and their p(niterily, and to renounca
the common protection and benefit of the law
for a bare maintenance, which, by .the wise
provision of the law in this country, may al-
ways be had hy the most needy and ilis»tressed»
on terms infinitely less ign(d)le and s«*Yere. It
should also be remembered, that such a collu-
sion could scarcely be wholly prevented, so
long as any of the real and unmanumilied de-
scendants from the antient villeins remained ;
because there would have been the same possi-
bility of defrauding the law on the actual trial
of villenage, as by a previous acknonledgmeot.
Besides, if collustons of this sort had ever be*
come frequent, the lej^ialature mi^ht have pre-
vented their effect hy an extraordinary reme-
dy. It seems, that antiently such frauds were
sometimes practised ; and that free persons, in
order to evade the trial of actions brought
against them, alleilged that they were villeins
to a stranger to the suit, which, on ac<'ount of
the great improbability that a confesvion so dis-
advantageous should be void of tiuth, was a
plea the common law did not suffer the plain-
tiff to deny. BOt a remedy was soon applied,
and the statute of (g) 37 E. 3, was made, gi% ing
to the plaintiff a liberty of contesting such ao
allegation of villenage. if in these times it
should be eiideavoure<l to revive domeslio
slavery in Eugland, by a like fraudulent con-
fession of «il!enat;e, surely so unworthy an at-
tempt, so (rross an evnl^ion of the law, \tould
excite in this court the sti<ii!gest diNapptobutioa
and resentment, and fiom parliament would re-
ceive an immediate and t- ffectual reutedy ; I
mean, a law declaring that villenage, as is
most notoriously the fact, has been long expired
for want of real ohjects, and therefore making
void all precedent confessions of it, and prohi-
biting the courts of justice from recording a
confeK^ion of villenao^e in future.

3. It may be objected, that though it is not
usual in the wars between Christian powers to
enslave prisoners, yet that souie nations, parti-
cularly the several stales on the coast of Bar-
bary, still adhere to that inhuman practice ;
and that in case of our ^eing at war with
them, the law of nations would juMtify our
king in retaliating; and consequently, that
the law of England has not excluded the possi-
bility of iittroUucini^ a new slavery, as the ar-
guments against it sup|»08e.

But this objecti<in may be easily answered ;
for if the arguments auainst a new slavery in
En(>land are well ftumded, (hey reach the
kin^r as well as his subjects. If it has been at
all times the policy of the law of Enj^laod not
to recognize any slavery hut the antir nt one of
the viilein, which is now expired ; we cannot
consistently attribute to the executive power a
prerotrative of rendering that policy ineffec-
tual. It in true, that the law of nations may

ttf

(g) 37 E. 3| C. 1§.

09] 18 GEORGE HL

give a right of retnliating on an eoeroy, who
cnskres his captirea in war; but then the
exercise of this riicrht niay be prereoted or li-
mited by the law of any particniar country. A
writer of eminence (A) on the law of nations,
has a passage very applicable to this subject.
His words are, "If the ciftl law of anv na-
tion does not allow of slavery, prisoners of war
who are taken by that nation cannot be nimde
ffaves." He is justified in his obserration not
only by the reason of the thing, but by the
practice of some nations, where slavery is as
unlawful as it is in England. The Dutch (i)
when at war with the Algerines, Tunisians, or
Tripolitans, make no scruple of retaliating on
their enemies ; but slavery not being lawful in
their European dominions, they have usually
■old their prisoners of war as slaves in Spain,
where slavery is still permitted. To this ex-
ample I have only to add, that I do not know
an instance, in which a prerogative of having
<saptive slaves in England has ever been as-
sumed by the crown; and it being also the
policy of our law not to admit a new slavery,
there appears neither reason nor fact to sup-
pose the existence of a royal prerogative to in-
troduce it.

' 4. Another objection will be, that there ai«
Engli^ acts of parliament, which give a sanc-
tion to the slavery of negroes ; and therefore
that it is now lawful, whatever it might be an*
tece<lently to those statutes.

The statutes in favour of this objection are
the 5 Geo. 9, c. 7, (k) which makes negroes in
America liable to all debts, simple-contract as
well as speciality, and the statutes regelating
the African trade, particularly the SS Geo. 9,
c. 31, which io the preamble recites, that the
trade to Africa is advantageous to Great Bri-
tain, and necessary for supplying its colonies
with negroes. But the utmost which can be
said of these statutes is, that tliey impliedly
authorize the slavery of negroes in America ;
and it would be a strange thing to say, that
permitting slavery there, includes a permission
of slavery here. By an unhappy concurrence
•f circumstances, the slavery of negroes is
thought to have become necessary in America ;
and therefore in America our legislature has
permitted the slavery of negroes. But the
slavery of negroes is unnecessary in England,

(h) Rutherf. Inst. Nat. L. v. 8, p. 576.

(i) * Quia ipsa servitus inter Cbristianos
' fere exolevit, eft quoque non utimur in hostes
' eaptos. Possumus tamen, si ita placeat ; imo

* ntimur quandoque adversus eos, qui in nos

* utuntur. Qnare et Bel(jpae quos Algerienses,

* Tunitanos, Tripolenses, in Oceano aut Mari

* Mediterraneo capiunt, solent in servitutem
< Hispanis vendere, nam ipsi Be\^te servos non

* liabent, nisi in Asi& Africft et Americft. Quin
■ anno 1661, Ordines Generales Admiralio suo
' naodlUvnt, pirates eaptos in servitntem ven-

* dsrat IdmoQue ofaservatom est anno 1664.'
Byaksrsbock QosBst Jnr. PnbL lib. 1| c. 9.

The N^o Case.

[60

and therefore the legislature has not extended
the permission of it to England ; and not hav-
ing done so, how can this court be warranted
to make such an extension f

&. Ihie slavery of negroes being admitted to
be lawful now in America, however questions-*
hie its first introduction there might be, it msy
be urged, that the lex ioci ought to prevail, and
that the master's property in the negro as a
slave, having had a lawful commencement in
America, cannot be justly vsri^ by bringing
him into England.

1 shall answer this objection br explaining
the limitatran, under which the lex loci ought
always to be received. It is a general rule {/),
that the lex loci shall not prevail, if great in-
conveniences will en&ne from giving eflect to
it. Now I apprehend, that no instance can be
mentioned, in which an application of the lex
loci would be mora inconvenient, than in the
case of slavery. It must be W^^d* that
where the lex loci cannot have effect without
introducing the thing prohibited in a degree
either as great, or nearly as great, as if there
was no prohibition, there the greatest inconve-
nience would ensue from regarding the le$r
loci^ and consequently it ought not to prevail.
Indeed, by receiving it under such circum-
stances, the end of a prohibition would be fims-
trated, either entirely or in a very great de-
gree ; and so the prohibition of things tha
most pernicious in their tendency would he-
come vain and fruitless. And what greater in-
conveniences can we imagine, than those,
which would necessarily result from such an
unlimited sacrifice of the municipal law to the
law of a foreign country ? 1 will now apply
thia general doctrine to the particular case of
our own law oonceraing slavery. Our Uw pro-
hibita the commencement of domestic slavery
in England ; because it disapproves of slavery,
and considers its operation as dangerous and
destructive to the whole commnntiy. But
would not this prohibition be whollv ineffec-
tual, if slavery could be introduced from a fo-
reign country ? In the course of time, thoucrh
perhaps in a progress less rapid, would not do-
mestic slavery become as general, and be as
completely revived in England by introduction
from our colonies and from foreign countries,
as if it wss permitted to revive by commence-
ment here ; and would not the same inconve-
niences follow ? To prevent the revival of do-
mestic slavery effectually, iu iatroduction must
be resisted universally, without regard to the
place of its commencement ; and therefore in
the instance of slavery, the lex loci must \ield
to the municipal law. From the fact of there
never yet having been any slavery in this
country except the old and now expired one
of viilenage, it is evident, that hitherto our law
has uniformly control leil the lex loci in this re-
spect ; and so. long as the same policy of ex-

(l) See the chapter * de conflictu legum di-
* versarum in divenis inperiisi* ia Huber. Vn^
lect, p. §38*

The Negro Caie.

e case of
liberty lo

din^ ibe lex loci in ll
■M, iigiiea imtneilialesnd ciilJri
■i, ■iien itiey are tirougbt here
orcuiDtrv. Atoat of (lie iither European
an. io which slarcrj ii discauDleoaiiced,
Maiopwd a lihe policy.
Ii SoMland domMlic ilavery is (m) un-
to^o. eierpl CA far as regards the (n) coal-
k*ni aoi] sall-maken, wbose condUian, il
B* be coorrMed, bears some resemMance lo
*|07 : because atl wliu bave unce acted in
MRof ibifse capaciiies are compellable to
mt, and fixed to ilieir respective places of
mbimcDl durioe lite. Bui wilb this single
onyiiaa, there is not llie least vestige ut
Aktj i aod «o jealous is the Scotch law of
Bin t^ta( li:Dding to slavery, that it bu been
U to disalUnr coulracts of seriice for life, or
*rt ttrj lon^ term ; as, for Bimy years (o).
Boner, nn parlicular case bas yet happened,
■ ■hicb it bfta beeu necessary to decide, wbe-
M a *l(«e of another country acquires free-
aaaabis arriral in Scolland. In 1757 Ibis
fHH« wms depending in tbe Court of SessioD
itciBse of a oei^ro ; but tbe negro happen-
•% la die during ibe pendency of the cause,
*■ fiMiou was not (*) delemiined. But
•M a >■ conaidered, that in the time nf sir
ttaBBiCtaig, who nroleat least ISO years
if^diter* was eten then a thing unheard of
• toMlaBd, and thai there sre no laws (p )t(
^mt ilavery, one can scarce doubt nbai
^an tbe lords uf aession would have prO'
•^■4, if Ibe negro's death bad not pre-
mt a d^ision.
ake Cnited ProviDcesslaTerybaTiag fallen

['■J Sec Crag. Jus Feud. lib. ;
tJL Suit'* Instil, b. 1, I. e, E.

(n) Puib. Insl. jurl 1, b. 2, t. :
haa-ial. I, p. 66,

(t) Uaedooal. Instit. toI. 1,1
■M ita 1 1 1 r . that in tbe case reli
IhBiwial. the lerm of service wa
i eireumstince. Tbe con

, dieges. 1 1 ,

. Mucdoual.

68. But I
by Mr.

11 the

bo* ikc uasters and the crews of some iish
' hani Uie latter biadjag themselves for a
ynriy »Upw*Dce lo serre in their respeclite
MM dariflf! Ibree limes nineteen yean, so Ibal
HIaov af dtem, duriug all that time, could re-
aaae traoi a particular tillage, or ao much aa
ft«« MC boat to arnaber. See Diet. Decii,
tL Pactum illicitum.

CJ Wall. Instil. Law of Scotl. chap, on
WK^r aari aerTant

(f) ikr Tbamaa Craig, toantinning the Eng-
U (rikaafe, aaj s, ■ N'lillua eiil apud uos eju
'tmm,rt inaadiium nomen, nisi quod iionnull
'■bbru HrgiE UajesUlii de nnlitisetad li
'hnuem ^nwlamanlibut prop una iitu r ; qut
'aib A«c'"""" iu'>ribiia«iint recepla, et nun
'w^ M uauin nostrum deducta.' Crag. Ju
r Jl^l

A. D. 1771. [B2

into diiuie (j), all their wrilen agree, that
s from another country become Iree ib»
lent they euler into the Duti;h terriioriea
(r). The same custom prevails in some of Iha
neighbouring countries, particularly Brabant,
Had olher parts of tbe Aualrian Netherlands;
and Gudelinu), an eminent civilian, who was
formerly proreiwor of law at Lourain in Bra-
bant, relatea from tbe annals uf the supreme
council at Mechlin, IhnI, in tbe year 1531, an
applicatiou for apprehending and surrendering
a tngitive slave from Spain was on tbia account
rejected (j).

Jn France tbe law is parlicularly explicit
against regarding ihe Itx foci in tbe case of do-
mestic slavery : and though, in some of tba
provinces, a reronanl of tbe antient slavery U
still to be seen in Ihe persons of the ' serfs' or
' gens de mnio-inorte,' who are attached lo
panicular lanJi ((), as villeins reLfardaut for-
merly were ia England ; yet all the writers on
Ibe law of France agree, that tbe moment a
slave arrives ibere from analber country h«
acquires liberty, not in consequence of any
wrilteo law, tiul merely by long usage having
the ti}rce of law. There are many remarkable
inatances in which Ibis rule against the aitmis-
sion of slaves from foreign couniries has bad
effect in France. Two are mentioned by (n)
Bodin; one being Ibe case of a foreign mer-
chant who had purcliaaed a slave in Spain, and
alierwards carried him into France ; tbe olher
being tbe case of a Spanish ambassador, whose
slave was declared tree, notwitbstanding the
high and independent character of the sTave's
owner. This latter case has been objected lo
by Borne writers (w) on Ibe law of nationg, who
do not disapjirove of the general principle nn

Cf ) ■ BelgiG servos non babeol, nisi in Asit,
' Africft, et AmericL' Byokersh. QokbI. Jur,
Pub, bb. I, c. 3. Another great Dutch lawyer
adds, ■ Nee cuiquam mortalium nunc liceel

■ use venundare, aut ali& ratiune servilDlis jure

■ semel alleri addicere.' Voet Commentar. ad
Pandect, lib. 1, lil. 5, s. 3.

(r) ' Servilua naulatim ab usu recesiil, ejua-
' que Domeo bodie apud nos exolevit; adco
' quidem ut scrvi, qui aliunde hue adducunlur,
' simul ac imperii noslri fines intrftrunt, invilia
' ipsorum dominia ad hberlatcm proclamars
' pussini ; id qnod et aliaruTD ChriEiiBn&ruia
' gentium moribusreceplum esl.' Grieuewcgeu
de Leg. Abrogat. in Hollandili, &c. p, S, John
Voel, in the place cited in ihe preceding note,
expresses himself to the same effect.

(t) Gudelin. de Jur. Noviss. lib. 1, c. 5, et
ViDn.iiilnslit.lib. 1, til. 3, p.39,edit. Heinecc.

(I) See Inst, au droit Franc. parM. Argou,
ed. 1763, liv, l, chap. 1, p. 4.

(u) Bodin. de llepubhc. lib. 1, cap. S, d«
iniperio herili. Se« several other inslancea
(Tienliuned in the Nfgru cause in Ihe 13tb vo-
lume of the Causes Celehres.

(a) K.irchner, de Lt^al. lib, 3, c. 1, nom.
333; and afier him Bynkprshoek Juge Com-
pel, dvs Ambatnd. Cil. ^ut Qatbejt.c. l&,t.V

63J 12 GEORGE IIL

which liberty is giren to stares brought from
foreig^D countries, but only coroplaio of lis ap-
plication to the particular case of an ambassa-
dor. But, 00 the other hand, Wicquefort (x)
blames the states of Holland for not followindf
the example of the French, in a case which
he mentions. AHer the establishment of the
Frenci) colonies in South America, the kinfips
of France thought fit to deviate from the strict^
ness of the antient French law, in respect to
■larery, and in them to permit and regulate the
possessiou of negro slaves. The first edict for
this purpose is said to have been one in April
1615, and another was made in May 1685 (^),
which is not confined to negroes, hut regulates
the general police of the French islands in
America, and is known by the name of the
Code Noir. But notwithstanding these edicts,
if DPgro slaves were carried from the French
American islands into France, they were inti-
tled to the benefit of the ancient French law,
and became free on their arrival in France (x).
To prevent this consequence, a third etiict was
ma(le in October 1716, which permits the
bringing of negro slaves into France from their
Americau islands. The permission is granted
under various restrictions ; all tending to pre-
Tent the long continuance of negroes in France,
to restrain their owners from treatin^^ theni as
property whilst they continue in their mother
country, and to prevent the importation of fu-
gitive negroes ; and with a like view, a royal
declaration was made in December 1738 (a),
containing an exposition of the edict of 1716,
and some additional provisions. But th« an-
tient law of France in favour of slaves from
another country, still has efl'ect, if the terms of
the edict of 1716, and of the declaration of
1738 are not strictly complied with ; or if the
negro is brought from a place, to which they
do not extend. This appears from two cases
adjudged since the edict of 1716. In one (A)
of them, which happened in 1738, a negro had
been brought from the island of St. Dumio^o
without oliserving the terms of the edict of
1716 ; and in the other (r), which was decided
to late as in the year 1758, a slave had been
brought from the Kast Indies, to which the

(x) Wicq. Embassador, Engl. ed. p. 268.

(y) Decisions Nouvelles, par M. Denisart, j
tit. Ne^res. — Denisart mentions, that the edict
of 1685 is registered with the sovereign council
at Domingo, but has never been registered in
any of the French parliaments.
^ O) Nouvelles Decisions par M. Denisart,
tit. Negres, s. yr.

(a) M. Denisart oWrves, that (he edict of
1716, and the declaration of 1738, do uot ap-
pear to hare been ever registered by the parlia-
**'J«nt of Paris, beciiuse they are considered as
^^^^ryto the common law of the kingdom.^
hw Nouvelles Decisions, Ut. Ncgrtss. And

> < ^ ^'•usca Celebres, vol. 13, p. 492.
\^ Nouvellei Decisioot par M. DemMrt,
It. Neffrca^ a, 147.

The Negro Case. ([64

edict doth not extend : and tn both tljeie cases
the slaves were declared to be free.

Such are the examples tlrawii from the laws
and usages of other Eur(»|»ean countries ; and
they fully evince, that wherever it is the policy
to discountenance slavery, a disregard of the
lex loci, in the case of slavery, is as well justi-
fied by general practice, as it is really founded
on necessity. Nor is the justice of such pro-
ceeding less evident ; for how can it be unjust
to devest the master's property in his slave,
when he is carried into a country, in which^
for the wisest and moat humane reasons, such
property is known to be prohibited, and conse-
quently cannot be lawfully introduced P

6. It may be contended, that though the law
of England will not receive the negro as a
slave, yet it may suspend the severe qualities of
the slavery whilst the negro is in £o(^land, and

f»reserve the master's right over him m the re-
ation of a servant, either by presuming a con-
tract for that purpose, or, without the aid of
such a refinement, by compulsion of law
grounded on the condition of slavery in which
the negro was .previous tn his arrival here.

But in8U|)erable difficulties occur against
modifying and qualifying ihc slavery by this
artificial refinement. In titc pr^-sent case, at
all events, such a mo<lific:itiuu cannot be allow-
able ; because, in the return, the master claims
the benefit of the rel.ition between him and the
negro in the full extenf of the original slavery.
But for the sake of shewing the futility of
the argument of modification, and in order
to prevent a future attempt by the masters of
negroes to avail themselves of it, 1 i^ill try its
force.

As to the presuming a contract of service
against the negro, i ask at what time is its
commencement to be supposeil? Jf the time
was before the negro's arrival in Ktij^land, it
was made when he was in a staie of slavery,
and consequently without the po\ier of con-
tracting. If the time presumed was subse-
quent, the presumption must begin tiie moment
of the negro's arrival here, and consHpiently
be founded on the mere fart of that arrival, and
the consequential enfrnnchisement by opera-
tion of law. But is uot a slavery, determined
against the consent of the master, a strange
foundation for presuming a contract l»etween
him and the slave ? For a momeut, however, I
will allow the reasonableness of pref:uming
such a contraH, or I will suppose it to l>e re-
duced into writing ; but then I ask, what are
the terms of this contrartP To answer the
master's pur|iose, it must be a contract to serve
the master here; and when he leaves this
country to return with him into America,
where the slavery will again attach oiion the
negro. In plain terms, it' is a contract to go
into slavery whenever the master's occasions
shall require. Will the law of £n<;land dis-
allow the introduction of slavery, and therefore
emancipate the negro from it ; and yet give
effect to a contract founded solely upon sla-
Tcry , ID slavery endiog ? Is it possible, that the

«J

The Negro Case.

I : h.« aa
» t-r»ir.n

ri'-Jtt 6.?
•Vlatte

hw of BagUiid can be «o iiwulting to the
Mfpro, te iDOOiitisteiit wil h ittel F P •

The ■rgoineot of modification, iodependeot-
Ij vf euotraet, is eqatlly delusive. — Tliere is
Bsbown rale by which the Court can g^uide
' " ID a partial reception of sla?ery. Be*
if the law of Eogfland would receive the
of the negro io any way, there can be
wby it should not be admitted in the
MM degree as the slavery of the villein ; but
fkt aifgiinieiit of modification necessarily stip-
fH« the ooDtrafy ; Iteeause, if the slavery of
ike aegfo was received in the same extent,
Iba it would not be necessary to have recourse
Ha ^oalification. There is also one other ma-
am still more repugnant to the idea of modify-
isf the staverv. If the law of England would
■Miry the slavery, it would certainly take
•way its most exceptionable qualities, and leave
these which are least oppressive. But the mo-
dUkption required will be insufficient for the
'a parpose, unless the law leaves behind
the most exceptionable, odious and
SMffcnive; an arbitrary power of revivinu:
the slaverj in its full extent, by renraval of
*e oegro to a place, in which the slavery
•in again attach upon him with all its original
K*my(iA.

FroiB this examination of the several ob-

JKtisiis in favour of slavery in England, I

lUak myself well warranted to observe, that

iwcad of being weakened, the arguments

apiast slavery in England have derive an ad*

4tMaal force. The result is, not merely that

Mirers become free on being brought into this

caoBtry, Imt that the law of England confprs

^ %A of liberty entire and unincumbered ;

Mttt lame only, but really and substantislly ;

■W cMMqoentfy that Mr. Stenart cannot have

tW Irvi rii^ht over Sommersett the ue<rro,

^fhtf io the open character of a slave, or in

l^dngvised one of an ordinary servant.

(9.) In the outset of the argu
ment I made a second question ']
on Mr. Htetiart's authority to en -
f«iree his right, if he has any, by
transporting the negro out of Eng- j
land. Few words will be necetfsary
on this point, which my duty as

(d) This answer to the argument of modi-
lestioa, inchides an answer to the supposition,
4tf an action of trespass * per quod servitium
* misit,* will lie for loss of a negro's service.
I IB petvonded, that the case, in which that
rtiMdy was loosely suggested, was one in
vbiefa' the question was about a negro being
•ui of Enifland. I mean tlie case of Smith and
Gbald, S Halk. 667. Another writ, hinted at
h ibc tame case, is the writ of trespass, < qiiarc
'apiivum snum cepit;' which is not in the
bsrt applicaHe to the negro, or any other slave.
hiappoaes the plaintiff to have had one of the
kii^'fceneiAies m his custody as a prisoner of
«ir, and to have had a right of detaining him
fl ^yment of a ransom. Sea Reg. Br. 103,
k. sad f Mk 007.

VUU IX. I

A, D. 1771. [B«

counsel for the negro requires me to make, in
order to g^ve him every possible chance of a
discharge from his confinement, and not from
any doubt of success on the question of slavery.

If in England the negro continues a slave to
Mr. Steuart, he must be content to have the
negro subject to those limitations which the
laws of villenage im|Y06ed on the lord in the
enjoyment of his property in the villein ; there
being no other laws to regulate slavery in this
country. But even those laws did not permit
that high act of dominion which Mr. oteuart
has exercised; for they restrained the lord
from forcing the villein out of England. The
law, by which the lord's power over his villein
was thus limited, has reached the present
times. It is a law (e) made in the time of the
first William, and the words of it are, * prohi-
* bemus ut nullus vendat hominem extra pn-
< triam' (/).

If Mr. Stenart had claimed the negro aa n
servant by contract, and in his return to the
Habeas Corpus had stated a written agreement
to leave England as Mr. Steuart should re^-
quire, signed by the negro, and made after hia
arrival in England, when he had a capacity of
contracting, it miglit then have been a ques-
tion, whether such a contract in writing would
have warranted Mr. Steuart in compelling the
performance of it, by forcibly transporting the
negro out of this country P 1 am myself satis*
fied, that no contract, however solemnly enter-
ed into, would have justified such violence.
It is contrary to the genius of the English
law, to allow any enforcement of agreementli
or contracts, by any other compulsion, than
that from our courts of justice. The exercise
of such a power s not lawful in cases of
agreemeirts for property ; much less ought it to
be so for enforcing atj^reements against the
person. Besiiles, is it reasonable to suppose,
that the law of England would permit that
against the servant by contract, which is de*
nied against the slave? Nor are great autho-
rities wanting to acqtiit the law of England of
such an inconsistency, and to shew, that a
contract will not warrant a compulsion by im-
prisonment, and consequently much less by
transporting the party out of this kingdom.
Lord Hobart, whose extraordinary learning,
judgment, and abilities, have always ranked bis
opinion amongst the highest authorities of law,
expressly says (g), that the body of a freeman
cannot he made subject to distress or imprison-
ment by contract, but only by judgment.
There is, however, one rase, in which it is
said that the performance of a service to be
done abroad, may be compelled without the

(e) Wilk. Leg. 8axon. p. «29, etcap. 65,
Leg. Gulielm. 1.

^) This law furnishes one more arg^ument
against slavery imported from a foreign coun-
try. If the law ik England did not disallow
the admission of ftuth a slavery, would it re-
strain the master from taking his slave out of
the kingdom ? (^) Hob. 61.

F

The Ntgro Case.
h MaCliMi in wliicli ncf^roei ha>e Ihe mis-
iMuap la be coaiiiterMl, elfectUHlly prevails
ll«r uDimrtalion in any uoiMiilrnible x\e%ten.
Oi|te wc not, on nur |<arl, tu q;iiaril atiil pre-
MtH*>i librrtv by wliicli w« are ilialingoiNlidl
!» »> Uw earih ! in be jf Biiiu» of n hareVFr
^■vc tijui a IfDilpm-y lu iliiiiuii*h tlic vrn?-
MM doe m ibe first of UoHtdirsf The tinrriil
«mthn, iKwrc^ cmlible in rcciUl, wrpetrated
■ <—ric«, mtglil, liy (Itc alluwonFt' ul'sla>»
WM^ tn, h« iutmliirpil here. Could your
JMMip, coaltt noy lilierii< and infcenunua le<n-
paiOMlun, In ifaefii'ldaborilrringnu Ihia city,
Mms • wrMcli bouDd li)r aonip trivial nSrnce
I* a ucr, lara and a^iiiiixio^ benettli the
HMtfc f thieh objf ctH mi|{bl by time bpcome
twill I r, b««ucDe unhmleil by (bii> nation ;
■MiiNid, ■■ (bey arv nnw, to I'ar different sen-
ton^. tri>y (l«ne ifnlimenla uevcr be eA
liacil ibe l<«4iD){s uf hiimaiiily I the ^eneraua
■Sm of Tree minds! A]ay tuch principle*
ttfttbe CBrTti|ited hy the mixture i)f' slHTiKh
aMonal Not cau I beliere, we shall autfer
H* iadt*til(«»l liiinjf here tn want that lihrrlv,
*Mae eflVcW arc clory and bappiness to the
faKeaml ncry iodiviilual.

Br. Wallace. — Theqiie<tioD hn« been slated,
•Mb«r Ibv n^hl can be auiiporleil bere; or,
iTiloMi, wlte<ber a coui-ae nt' proceeding's at
Uv he not n«ceaaary to give effect lo the ri|;lit7
b la liwail in tlim i|uarlera of the globe, and
B ftn af ib« f'nurlh. In Asia the wbnie |iea-
)1(; ia Afnea and America far (be i^eater
pull <■> Kiiropv great numliert or the Itiia-
'n and puUndeni. Aa tn captivity in war,
■■ CkruOian prince* liave bteu nvA to i^ive
!■ IB ibe priauaera ; and it look rise probably
iiMCetiaailra, when they gnte llirn) hie. Bad
<^i«aM r-ufraiicbjtied ibem, tu inlisl under

MMMki Th« ri|{hl of a conijueror wui abso-
kw« Eiiivpe, and i* in Africa. I'be natirea
M bnoybl from Africa tntlie West ludiei;
MNlai* ia tnaile ibere, aal became nf poaiti*e
wm, l« tWt* bein|{ im law auaintt ii. Il can*
■■ ba ia MMnlemlinu by ibis or any olber
■M, laaae, wliptbcr ihe West India r«Ku1a-
fe^an lIlebM) poaiible; iuch ■■ tbey are,
•Ua tmf cMtlifiur in liirce aa lawa, tbey muat
liirikHailla. Aa to Eni^land nnl prrmiliin);
i^twy, llan« U no law a^inil it; nor ilo 1
Uaay anainpt liaa been made tu pnire the
aaUM* afaae. Villeoaga itself has all but
htaaa*. Ttiaagb Ibe ilia<ohiliiiii ufm'inas-
Ma, aaBBHC** ulber material allerations, did
aMaaad lb* decay of that tenure, aUves could
halba n EnirlaDii : for villeins were m Ihi*
ttmttj, aarf trere mere alavea, in Elizabeth.

[Urd M

'■ 1 aaai aa aaaeriiua. bill duea not recollect ibe
L Mr, tfaal Ivo »uly were in England in the
-••f ClHrlealh«3•l,altbetimeoftheahnli-
T: 4 iBsna.J In (be caiiet oilMl, the two
-HfiiaeUy alfcnn an aCii"!) of ir.ner, ao action
'•^^ftmfUdto merB Gomiiian chadeN. Lord
■-" — 1 a meia dMlum, a deci&ioo

A.D. 1771. [70

unsupporled by preceilenl. And if it be nh-

{ecteil, that a pmper action rflubl not ha
ironelii. il is a known and allowed priictire in
mercantile IrnnsaciinnK. ii' the cnuie ariiei
■liroad. In lay il wilhin Ibe liinijdom : therefore
the rnnirai't in Viricini* inight lie laid to be in
London, and wunlil not be irareriiable. With
re peel to llie wher c«s<^, ihe pariicidar mode
of action was ainne nbjrcieil in ; had ii been an
Aclinii ' per qniMl servitimii amiail,' for Iob-i of
seiiice, ihp Court wiiuld have allowed it. The
Cuiii'l called ibe pemon. for the recovery of
uhoiii It wag broiiitbi, a slavish servant, in

I Cbaiiiberlayne's cnse. Lord llanlwicke. and
ilii' atterwanit lord chief juaiice I'albol, then
alinrney and aolicitor-genenl. prnn'iuiMed a
aiave not free by coinine into England, It is
neccaidry the iiiaHlers shonld briny them over;
for lliey cannnl trutt the h bites, either wilh

I the atorea or the navigatini; the vessel Tliere-
fore. the Iwnefit taken on the Habeaa Curpui
AciooKiit tube allowed.

I LorrI Manijield obaervea, Tbe ease alluded
lo was u Jinn a 'petition in Lioroln's Inn Hall,
after dinner ; probably, thtreliire, mi);bl not,
OS he believes ibe contrary is nnl unnaaal al that
hour, be taken with much accuracy. Tbe
principal maiter was ihen, on the earnest toli-
dtalion of many mercbanls, lo know, whether
a slave was freed by being made a Christian?
And il was resolved, not. It Is remarkable,
though tile Engl ixb look infinite pains beliire
to |irevenl ibeir slaves being made Christiana,
that ihey might not be freed, the French sug^
gested ihey mutt bring Iheir'a into France,
(wlieD the edict of 1706 was |ietilioned for.J lo
make them Christinns. He aaid, the disliuc-
tion was difficult as loslavrry, which could not
be resumed after emanuipaliDn, and yet ihecon-
ditirmoftlaiery.in ilsfuli eStent,cauldnolhetD-
leraiedhere. lUucbcunsiderationwai necessary,
lo define bow far (lie point should be cstried.

The Conrt must uunnder Ibe great de-
triment lo proprietor*, there being so great
a number in tbe ports of ibis kingdom, that
many thousands of pounda would be lost to (be
uwncri. by seKing Ibem free. (A gentlemaa
observed, no greai dauger; for in a whole
Heel, tianally, there would not be aix alates.)
A* to Prunce, ibe case stated decides no
farther than that kingdom; aud (bere freedo(n
»as cUiinrd, because the slave had not been
registered in ibe port where be eiiiered, con-
I'ormably to the edict of 170<i. Mighi noi a
«lave na well be freed by going oui "f Virginia
lo Ibe adJBient couolrv, where Ibere are no
alavea, if change lo a place of contrary custom
was sufficient ? A statute by the legislaliire, to
auhjei-l ihe Weal ladia properly to payment of
debu, I bD|ie, will be thought some proof; an>
other act devests tbe Africaa company of their
•laves, and vests them io the West India Coiii'

Kany : I say, I hope tliese are proofa Ihe law
■■ interfered for the inainlenance of tbe trade
in klaven, and Ibe iraimferriiig of slavery, Aa
for want of apphcutiiin properly to a court at'
juatice i B common nervani may be coirtciaA

71] 12 GEORGE III.

here by his maAter's prif ate aiitbority. Habeas
Corpus acknuuieU^es a ri<jht to seize pt:rsoiiB
by i'urve employed to ai*rve abroad. A riiebt ol'
coiiipiilsiun (here must be, or ilie master trill
be uutterthe ridicuU»us iiei'esbtty of'nCirlectUiip
bis proper buaiuesSf by stayin<^ here to have
their service, or must he <|uiie deprived of those
slaves lie has beeu obliunl to briog over. The
case, as to service tor life, was uot allowed,
merely tor waut of a deed to pasd it.

The Court approve^l Mr. Alley ne's opinion of
the distinction, how tar niuuicipal laws were to
be refj^rded : instaitced the right of marriag^e ;
which, properly stdeamiased, ivaa in all piacess
the same, but the resfulatiojis of power over
childreu from it, and other circumstances, very
various; and advised, if the merchants thought
it so uecessary, to apply to parliament, who
could make laws.

Adjourned till tliat day se'nnight.

Mr. Dunning. — It is incumbent on me tojas^
4ify captain Roowles's detainer of the nei;ro ;
this will be efiecteil, by proving a right in Mr.
Steuart; even a supposed one: for till that
matter was deteruiiued, it were somewhat un-
accountable tliat a negro should depart his
service, and pat the raeanv om of his power of
triyog that tight to cfleci, by a 6ight out of the
Icingdom. i will ('xplaio what appears to me
the tbundaiion of Mr. Steuart's claim. Before
the writ of Habt-as Corpus issued in the present
case, there was, and tlif re still is, a great num-
ber of slaves in Africa, (from whence the Ame-
rican plantations are supplied) who are saleable,
and in IJMrt sold. L-uder all these descriptions
is James 8ommersett. Mr. Steuart brought him
over to England ; purp;)s:ng to return to Ja-
maica, the negro chose to depart the service,
and was stopt and detained by ciptain Knowles,
until bis master should set sail and take htm
away to be sold in Jamaica The gen;leoien
on the other side, to whom 1 impute no blair.e,
but on the other hand mucb ctniuit-ndation,
baTe advanced osany iiii^euious propositions ;
•part of which are undeuiaWly true, and part (as
w usual io compositions of int^enuity) very dis-
putable. It is my mi>f triune to addr^ an
audience, the grt^ier part of which, I fear,
are prejudiced the other way. But wishes. I
am well convinced, mill ne«er enter into \our
lordships* minds, to influence the determination
4lf the poiut: this cause must be what in fact
•ml law it is ; its late, I trust, therefore, de-
aaa4s on fi\t invariable rules, resulting by law
iom the nature of the case. For myselt'. 1
aaanld not be understood to intimate a wish in
Afuur of aUvery, by any means; nor on the
Alher side to be supposed' the mamuiner of an
apiaioD contrary to my own judgment. I am
Mwnd by duty to oiaintaiu those argot nenis
•yj"^."g must nactfiil to captain Knowles, as
nras is eoBsittmt with truth ; ami if hi« coo-
a^ ????**" ■fRcable lothelaws throughout,
'UK aMcr a laitbcr indtspeasable duty to tup-
^ mk mm albcr aiisatiaa tbaa may

aftbc

The Negro Case.

[78

4|uesiioo : less than this I have do reason lo
ex|iect ; more, I neiiher demand n«»r wish to
havealloweil. Many alarming apiirrheusions
have l»ecn eniertaineil of tiie consequence of* the
dtH^ision, eiiher way. About 14,<»00 slaves,
from the most exact intelligence I am able to
procure, are at present here ; atod some little
lime past, 166,914 in Jamaica ; there are,
hesitles, a number of wild negroes in the woods.
Tike computed value of a negro in those parts
SO/, a head. In the other islands I cauDOt
state with Uie same accuracy, but on the whole
they are about as many. The meaos of coa«
veyance, I am lold, are maniiold , every familv
almost brings over a great number; and will,
be the decision on which side it may. Moal
negroes who have money (and tliat descriptioa
1 Iwlicve uill include nearly all) make ioteresk
with the com moo sailors to be carried hither.
There are nei^roes not falling under the proper
denominatitin of any yet niensioned, descen-
dants of the original slaves, ihe aborigines, if i
may call them so ; these luve gradually ac-
quired a natural attachment to their country
and situation; in all insurrections they side
with their masters: otiierwise the vasi dispco-
portion of the negroes to the whites, (not less
probably than that of 100 to one) wuiild have
been fatal in its consequences. There are rery
strong and particular grounds of apprefaeo-
sion, if the relation in which they stand to
their masters is utterly to be dissolved on the
instant of their doming' into England. Slavery,
say the gentlemen, is an odious thing ; the
name is : and the reality ; if it were as one has
defined, and the rest supposed ii. If it were
accessary to the idea and the ezislence of
James 8ommerwtt, that his master, even here,
mi<;btkill, nay, might e.ii him, might sell living
or dead, might make him and his descendants
pro)>erty alienable, and thus trananaissible to
posterity ; this, how high soever my ideas may
be of the duty of my profession, is what i
should decline pretty' much to defend or aa-
sert, fer any pnr|i08e, seriously ; I should only
speak of it to testify my contempt and ab-
hnirence. But thift'i< w'bat at present I ass
not nt all concerned in ; unless captain Knowles,
or Mr. Steuart, have killed or eat bins.
Freedom has been asserted as a natural right,
and therefore unaUenable and unresirainithle ;
there is (lerhaps do branch of this right, but in
some at all times, and in all places at diffn^ent
times, has lieen restrained : nor couM society
otherwise be conceived to exist. For the KTcal
benefit of the public and individuals, natuial
Hheriy.wliieli cnnsisU in doing what one hkes,
is altered to the doing what one ought. Tba
centlemen who have spoke with so iiinch seal,
have supposed different ways by which slavery
commences; but ha«e omiiicd one, ami rightly {
lor it would have given a ai* ire favourable idea
of the nature of that power agaiost which ibay
combat. We are apt .and great authoritiaa
support this wsy of S|ieaking) to call tbose na*
Hobs nniTcrsaUy, whose laMsl police wa wa
•TybaibariaH; (tbut tbe Gmba, pw.

<, Mhose cuilomi,
r JuitiAuble

^.. ,. L-Rllin^ ilifMi tMiliariikni, wp lire

ttfiMAuiL Ijtnii so, ami draw cunclutinns ac-
w^ty- TImm* are alavcs in Al'fica by cap-
iMf n wkr, but ilii- iiU[iibfr lir tnim ^tesl ;
AcoMMtry u dinidetl iuln tnauy iinall, some
^M loTUutm, u till ila, ill tii^ir wan wilb ciiie
aMbrr, umc lliiii mttuui. There are ol' Ibt^c
^flc, mm tthu Iwvu a ifiiM- uf the H(r|>l and
uAv «f inrduiii ; bul wliu iinneiae llial oC-
l^mat{aiiM ludaly are piiiiiBliable junily by
kt**(«<>bwul'*ertiliMl«, I'DrarimeB against
pofcny, « MHuulcraUK ailiiiliun ia made lo tbe
OMhtr at' Uatcn. Tlify bare ■ process by
■tut ibe qmniily ol tliv di-bt in auMrlained ;

adK'aUtlMfirup'rly i>l' Ibe drbliir in KUoda

daapMnI ail be bas bcMilM, i» deemed pro-
pnr boMFll'; llie proiwt otlJoer (ilieriH' we
■•T call bin) •film ilie iii>>ultMir, and dia-
pan ol' bioi ta ■ nlavr. We don'i cnutcad
M4tr itliicfa uf thHc tlii^ unf'ortunale man in
^■uliaii la ; bul liiv cunditiun was ibat of cer'
Made in Ab«-'i ibe law nC the land o( (bat
walijf di^imsed of him b< pra|i«riy, niili all

Iw I Ibe taaluleti uf Ihe Biilish legislature
^^rm ihn cmidiliiiii ; and iliua lie nas a slave
lalb HI 1«» and fact. I do nol aim al proting
knB fMHMi; out (lecauM ibey want evidrnce,
b* bteaww Ihr} baie nol Wen ronlrorerlcd, lo
■J nntlkirtian, and arc, 1 Ihinh, inCHjialile of
t»al. Hr.Struart, nilh 4tiis right, crotwdihe
luaale, and was not tn Itave lb« Mtiatuctinn of
te«nHBi{, till after Itl* an-rtal in tliia country,
tM all ratalioa belweeo liim ami ibe nejfro, aa
^■■■aiul aervaut, was to be inoittr of con-
Nikij, mad ofiong legal disquiBtlinn. A lew
••lb RMv l>* )impei, cooeeriiine the Russian
! {irar«e>linga nf the Huute of
(bat rate. It is not abaiird in
iM aitsa, ■• ^oiii«d, nor iinjiiubable asinaiter
<*ha; iti« eiprnMion haa a kind of abautdiiy.
I iksb, wiibout any prrjiulive lo Mr. KteuaM,
« Hw men^B uf lh>s cauar, I may adoiil th#
NaMt fuaaiM* lu lie deaired, an fur as Ihe
Baa af Mat *U** goea. The maMfr and slave
■na boili. (uraliuuld bate been at leaii) on
Ibqr «MiBnN{ li^e, new creatures. Kutisian ala-
Mr^. aodrtKithi.' (iilronlioaiiun aniaui{st ihem-
■rim. lo llie iIe^i' t- ibcy use il, ii ant here ta
^llryne jually olHiernis, the
>nH 111' one imuoiry are nol
bill docR I lie rtlalnui cnae
LTculiuK It, Ibe dejcrcf^ in
ry y I bate nut ht«r<l, nor.
my inicniiun in affirm, Ihe
• of trntnt and afr* aoi cea»ea here f I
a municipal relaliuni diH'er iii dil

lanaa e>4inwa, acvoriliui; i

■iiiiy, and

■•■a. A diatiovlion was eudravoured lo

■bail inrtwee.i naliiral and rauDJoipal

bat the iiHiiiral relatiuns are nol

vbicb ailcnd lUaperaoonf Ibe man,

M ura i w>lb wbidi the munioipal

A. D. I77I. [74

re moat closely connecleil i municipal lawa,
rictly, are liiuse cnnAncd to a parti cularfilace;
'""""' - - -' — - wbicb lltt muniei|>al lawa

Tbei

tinD nf hoaliBiid and nile, 1 think niyaelf war-
ranleil in (^umlonitig, as a natural relation ;
does il Kub!.isi tor lif« ; or lo answer the nalui-al
purposfB wblcb way reasonably lie eiipi>used
etieu lo lermiiuite sooner t Yet this ia iiiie of
those rtlaiions nbich follow a man atery
where. Ifonly nahiral relalioos had tbal pro-
ptrt) , the elTeet vtoubl Ue very Kmlled indeed.
In fact, Ibe municipal laws are princ>|inlly eoi-
ployeil in delenniiHng the maniirr by wliicb
relaiinnHareoreated; and which mannrr variet
in Tarious countries, and in Ibe same cnuatnr
at different periods t tbe polillcat relation itsefr
eonlinuing usually unchanged by the cbanM
of plare. Tliere is but one Ibriii al present
with ua, by which the TElaiion of busband and
H ife cnn be constiiiilrd ; Uiere was a time when
olherwise: 1 need ixd say other nalions bare
ilirir own modes, fur ibat ami oiber ends of
socjely. Contract is not llw only means, on
(be oilier haiiil, of producing Ihe relation of
mattrr and serranl ; Ihe magiEiralea are em-
powered lo uLlitje peraoos under certain cir-
cuuialnnces lo serve. Let me take notice, nei-
Ibei' ibe nir of Entjland is too pure lor a glare
to brealbe in, nor have ihe tawa of England
rejected sertilude. Villenage in this country
is said tu be worn oui ; (be proptieiy of the
ejipresaion strikn me a little. Are the lawa
not ex.stinijT by which it was created F A mai-
ler of more curiosity than use, i( is, to enquire
H ben tbal set of people ceased. The slatuie of
tenures ilid not however aboliab villeuage in
gross; it left persoDs of that condition in Ihe
sanie state as hetbre ; if their desceniloDts are
■II deiid, llie gentlemen are rigbl lo say the
subject of ibose law s is gone, bul not tbe law ;
if the sulijeol revivea, the law will lead the
subjecl. If tbe blaliite of Charles Ihe 9d, ever
be rejiealed, tbe law uf villenaee revivea in it*
full force. If my Irarned broilier tbe Serjeant,
or ihe other gentlemen who argued on Ibe
suppuaed subject uf freedom, wilf go through
an 'operatiuD my reading assures me wdl be
sufficient fur thai purpose, 1 shall claim them
as properly. I won't, 1 assure ibem, make a
rigorous use of my |iower ; I will neither seH
them, eat them, nor part wiib ibem. Il wou1(l
be a great surprize, and some inconvenience,
if a lureinnur bringing over a servant, as soon
as he got hither, must take care of bis carriage,
his hurse, and bimsell in whatever meibudlie
might have tbe luck (o iuveol. He muat
lind his way lo l^ndoo do foot. Re tells bia
servant. Do ibia ; the servant replirs, Before I
d« it, I ibiuk lit Id inform you, Bir, the Drat
Btep on this happy laod sets all men on a |>er>
feci level ; ynu are just aa much obliged lo
obey my mmmands. Thus, neither superior,
or infenur, both go without their dinner. We
should tind singular comfort, on entering tbe
liiiiils of a foreign country, tu be thus pt once
daresUil of ail altendance asd all accominodi-

75]

12 GEORGE III.

The Negro Case.

[76

tioo. The ffentleroen hafe oolleded more
reading Iban I ba?e leisure to collect, or in-
dustry (I must own) if I had leisure : very
laudable pains have beeu taken, and rery inge-
nious, in collecting the sentiments of other
countries, which 1 shall not much regard, as
aflectiog the point or jurisdiction of this court.
In Holland, so far from perfect freedom, (1
speak from knowledge) there are, who without
being conscious of contract, hare for offences
perjMtual labour imposed, and death the con-
dition annexed to non- performance. Either
all the different ranks must be allowed natural,
which is not readily conceived, or there are
political ones, which cease not on change of
soil. But in what manner is the negro to
be treated ? How far lawful to detain him F
My footman, according to my agreement, is
obliged to attend me from this city, or he is not ;
if no condition, that be shall not be obliged,
from hence be is obliged, and no injury done.

A servant of a sheriff, by the command of
his master, laid hand gently on another ser-
vant of bin master, and brouebt him before his
toaster, who himself compelled the servant to
hit duty; an action of assault and battery,
and false imprisonment, was brought ; and the
principal quesiinn was, on demurrer, whether
the master could command the servant, though
he might have justified his taking of the ser-
¥ant by his own hands ? The convenience of
the public is far better provided for, by this
private authority of the master, than if the
lawfulness of the command were liable to be
litigated every time a servant thought fit to be
neffligent or troublesome.

Js there a doubt, but a negro might interpose
jn the defence of a master, or a master in de-
fence of a negro ? If to all purposes of ad-
vantage, mutuality requires the rule to extend
to those of disadvantage. It is said, as not
formed by contract, no restraint can be placed
by contract. Whichever way it was formed,
the consequences, good or ill, follow from the
relation, not the manner of producing it. 1
may observe, there is an establishment, by
which magistrates compel idle or dissolute per-
- sons, of various ranks and denominations, to
serve. In the case of apprentices bound out
bv the parish, neither the trade is left to the
choice of those who are to serve, nor the con-
tent of parties necessary ; no contract there-
fore is made in the former instance, none in
the latter ; the dnty remains the same. The
case of contract for life quoted from tbe year-
books, was recognized as valid ; the solemnity
only of an iostrument judged requisite. Your
lordships, (this variety of service, with divers
other sorts, exibtinj^ by law here,) have tbe
option of classing him amongst those servants
which be most resembles in condition : there-
lora, (it seenu to me) are by law authorised to
Mlbroe a servioe for life in the slave, that be-

ftLi ^*^L-^C *•■• •i^o^^ion before his coming
ltttt«r; wbiehy as Qot incompatible, but agree-
SHj •^^WtjinayjiitUytiibBisthefB: I
m/mh A nvhl. my, moat Deootarily iubnit;

as a consequence of a previoDS right in Mr,
Stausrt, which our institutions, not dissolving,
confirm. I don't insist on all the consequences
of villenage; enough is established for our
cause, by supporting the continuance of the
service. Much has been endeavoured, to
raise a distinction, as to the lawfulness of the
negroes commencing slave, from the difficulty
or impossibility of discovery by what means,
under what authority, he became such. This,
1 apprehend, if a curious search were made,
not utterly inexplicable ; nor the legality of bit
original servitude difficult to be proved. But
to what end ? Our legislature, where it finds
a relation existing, supports it in all suita-
ble consequences, without using to enquire
how it commenced. A man enlists for no spo-
cified time; t|ie contract in construction of
law, b for a year : the legialature, when onoe
the man is enlisted, interposes annually to
continue him in the service, as long as the
public has need of him. In times of public
danger he is forced into tbe service; the lawa
from thence forward find him a soldier, mako
him liable to all the bdrden, confer all the
rights (if any rights there are of that state)
and enforce all p«ialties olf neglect of any duty
in that profession, as much and as absolutely,
as if by contract he had so disposed of him-
self. If the Court see a necessity of entering
into the large field of argument, as to right w
the unfortunate roan, and service appears to
them deducible from a discussion of that na-
ture to him, I neither doubt they will, nor wish
they should not. As to the purpose of Mr* ,
Steuart and captain Knowles, my argument
does not require trover should lie, as tor re-
covering of property, nor trespass : a form of
action there is, the writ Per Quod Servitium
Amisit, for loss of service, which the Court
would have recognized ; if they allowed the
means of suing a right, they allowed the right.
The opinion cited, to prove the negroes free on
coming hither, only declares them not sale-
able ; does not take away their service. 1 would
say, before I conclude, not for the sake of the
court, of the audience ; the matter now ia
question, interests the zeal for freedom of no
person, if truly considered ; it being only,
whether I must apply to a court of justice, no
a case, where if the servant was an Englisli-
man I might ose my private auUiority to en-
force the performauce of the aervice, accdrd-
ing to its nature,) or may, without force or out-
rage, take mv servant myself, or by another.
1 hope, therefore, I shall not suffer in the opi-
nion of those whose honest passions are fired
at the name of alavery. 1 hope I have not
transgressed my duty to humanity ; nor doubt
I your lordship's discharge of yours to justice.

Davy, Serj. — My learned friend has thought
proper to consider the question in the begin*
aing of his speech, as of great importance :
it is indeed so ; hot not for uose reasons prin-
cipally assigned by him. 1 apprehend, my
lonl, the honour of Sqglaiid, toe honoor of

The Stgro Cote.
4t li»» w90rmw<f Envlithniin, here or nbroail,
itwn voBCVfnctl. He olwerreH. the nuuilier
k 14,<W0 ur 15.0001 if sn, bi|;li lime lu |iut
Msilta lite pftciice; m(irecii|>eci>Uj,iiiicc
Ibn nnst be seal back »» slltrs, ihou^li ver-
•■iiherF. Tbe ini-reusv ol' iucli inliabilanls,
ml launvivii in llie prmpvriijr ol' ■ euuolry,
Untj iiMnicious ; in au ibliui), nhkh cud, hi
■A. uAt exlcnil its limib^ nor conse[|ueiilly
■■•tuii uMve tbaa a ctrtHiD number ol' inbu'
lAMi, ilaafterndB in excess. Moue^ from tii-
n^ nde (or any ntlier nieaiit) is ont Ibe
•allh af • Daliun ; nnt coailiices any thing to
mfmm tt, >*y farther ihsu the )iruduc^ol the
■nk will MHWCf the ilemanil of DcceEMrins.
la that owe :nnney enriches the iuhabilanli,
m kriag Uic coiuroon represenlalive of lliose

^BipMry and mrUsB, If the encrease of ^a-
)lt esc>«(blfae aunual alock of |>ruiiEitons rc'
fibiw lor tikeif aubfelHlence. Tbus, foreig-n
MtaiiMBiu inbabitanli aitfjmpntinit perpelii-
mj, are ill lo be allowed ; a nation of enemies
■ Um iMrt «r a slale. Mill uoree. Mr. Don-
aN| Blailcil ItimMlf of a Hruug inlerpretalion
rf ika «onl ■ Datural :' it n'M na uacil in the
•«w IB «rki^ be tboutrht (it to understand
bat cjipnrvatOD i it was useil oh moral, which
*■ hm can supersede. All coniracis, I do
mt nature la auen, are of a moral nature ;
lu I know ool any law lo confirni an iminnrsi
cattnei, and execute it. The conlracl of
mntift l» a taaral contract, nlnliliahed lor

cnnl poTpotea, eoforoint; moral uhligaliong ;

■-■ ngh* nl lakin); property hj descent, the
j'^ncy af children; (who in France are

- -ima Ir^llimnle, though horn belbre the
-•-ra^ in EDglanJ doI] : these, anil many

iikw nose^uencM, How I'roni the fnirrlage

"TiAfj •Awiiinixi'd ; are cnveroed by the >nu-

- ol law* of thai partjcniiir sttle, under

-•4a iaalilalioni tbe contra cling and ditposiQ){

^i^i^lcta aa aubjecla ; anil by whose csLa-

tiiakad fama they Hibmil tbe relation In be re-

fidMii, w Gu ai ilB couariiuenceE, not von-

^ttmf the noml <ibli|>atioii, are iolereiled.

li iL* cue of Thorn mid Wbikin*-, in wbleb

I ;ii|> waa counsel, dctermlneil before

■. „k.^A mm died in England,

. iiiScMlanJ; ha*in|r a brother of

i\i ■ filter of the half blood ; the

" laws of Scntlanil, coutd not take.

: .i|r)diea tor BdcniniBtralion to take

. mie, real and peraonal, inlo hit

, 1-r bii own me; the aiiter tiles a

>, i-,.,t.«-ty. The tben'Mr. Attoniey-Ge-

il ^u in auncr for the defendant ; and af-

' -a, ibe ertair, as beina in tkutland, and de-

> diMT fnati a liicolcniiian, ahoutd be go-

■aad \j that law. Lord Hardwicke over-

•J tha wljeetiun a;r*<nil tlie siiler'a taking;

' Ivari llarre was uu pretence for it ; and

' ir t» iIms elfrct, land neatly in tbe fol-

- at worrit—" Supptne ■ foreiffner has ef-
■r atacki, auil diet abroad ; tbry mint
Bled acxiordiriK lo the laws, not of

lyltacwlwrabts affri:ti were, but ef that to

A.D. 1771.
which u a lubjeci he belongeil at Ihe lima
of bia death." All relalionaKorrrned by mu-
nicipal laws, must be so Uu dependant nil
ihera, ilial if the parlies change iheir country
Ihe municipal laws give way, if contradiclury
lo the poiiilcal regulalionauf thai oiher country,
rSeellie cases died in Fabrigaxn. Moslyn.io/]
In the case of master and slare, beinif no
moral obligation, but founded on principles,
and aupporled by practice, ullerly l'oreii(n la
the laws and ciislomii nf this country, the law
cannot recog-nixe such relation. The urgii-
menia founded on municipal regulations, con-
sidered in their proper nature, haTebeen treated
an fully, so learnedly, nod ably, as scarce lo
leare any room for observalioun on that suh-
jed: any thing I could offer to enforce, wotilj
rather appear to weaken ibe Droposiiiup, com-
pared wiib ihe strength and propriety with
which that subject tias already beeu explained
and urged. I am not concerned to dispute,
Ihe negro may contract lo serve ; nor deny
llie relation between ihem, while he continoea
under bia original proprlelor's roof and pro.
tectlon. It is remarkable, in all Dyer, (lur I
have caused a search lu be made as far as ihe
4lh of Henry the 8th,) there is not one instance
uf a man's being held a villein who denied
himaelf to be one ; nor can l]lind a cnnfesiion of
rlllenage In those times. ^Lord Manifield ; —
The last confession of rilleuage extant, is in the
Idth of Henry ibe Gtb.] Iflbe Court would
acknowledge the relalion nf master and aer-
Tsnt, it ceriainly would not allow the most ex-
ceplionable jiart of slavery ; that of being
obliged lo remove, at ihe will of the master,
from tbe protection of tliis land of llberly, lo a
country where ihere are no laws; or hard laws
lo insult bitD. It will not permit slavery sus-
pended for a while, suspended during ihe p]ea<
sure of ihe master. The instance of mnslei-
andservanl commencing without contract ; and
that of apprentices against the will of ibe par-
ties, (ihe latter fouud In lis cnnaequvnces ex-
ceedingly pernicious;) both these are prortded
by special slaiulea of our own municipal law.
If made in France, or any where but here,
they would not have been binding here. To
punish not even a criminal for offences aninat
ibe lawa of another counlry ; lo set tree' a
galley-slave, who is a slave by his crime; and
make a slave of a n^ro, who is one, by hi*
complexion ; is a cruelly and absurdlly thai I
trust will never lake place here : sucn aa, if
promulgrd, would make England a disgrace lo
all the nations under heaven : for Ihe reducing

most abject slate. M r. Dunning lias mentioned,
what he is pleased to term philosophical and
moral grounils, I think, or. something to that
effect, nf slavery ; and would not by any ineana
have ua ihiok irisrespeclfully of those nalions,
whom we miatakrnly call oarbaiiins, merely
Ibi' carrying on tlmi trade ; fur iny part, we
may be warranied, 1 heheve, in affirming the
iBoralily or propriety of the pracliee duel nvt

79]

IQ iSEOROE III.

The Negro Case*

[80

enter their head*; they make slaTes of whom
they think (It. For the air of Englaud ; I
think, however, it has beeo gradually purifyinflf
crer since the reif^n of Elisabeth. Mr. Dun-
ninif seems to hate discovered so roach, as he
finds it chancres a slave into a serrant ; though
unhappily be does not think it of efficacy
eiHiugh to prerent that pestilent disease re-
Tivini;, the instant the poor man is obliged to
quit (voluntarily quits, and legally it seems we
ought to say,) this happy country. However,
it has been asserted, and is now repeated by
me, this air is too pure for a slave to breathe in :
I trust, I shall not quit this court without cer-
taiu confiction of the truth of that assertion.

Lord Matufield, — The question is, if the
owner had a right to detain the slave, for the
tending of him over to lie sold in Jamaica.
In fiveo'r six cases of this nature, 1 have known
It to be accommodated by agreement between
the parties : on its first coming before me, I
■trongly recommended it here. But if the parties
will hare it decided, we must give our opinion.
Compassion will not, on the one hand, nor in-
con? enience on the other, be to decide ; hut the
law: in which the difficulty will be.nnncipally
firom the inconvenience on both sides. Con-
tract for sale of a slave is good here ; the sale
is a matter to which the law properly and rea-
dily attaches, and will maintain the price ac-
cording to the agreement. But here the per-
son of the slave himself is immediately the
object of enquiry ; which makes a very ma-
terial difierence. The now question is. Whe-
ther any dominion, authority or coercion can
be exercised in this country, on a slave accord-
hig to the American laws ? The difficulty of
adopting the relation, without adopting it iu
all Its consequences, is indeed extreme; and
yet, many of those consequences are absolutely
contrary to the municipal law of England.
We have no authority to regulate the condi-
tions in which law shall operate. On the
other hand, should we think the coercive power
cannot be exercised : it is now about 50 years
since the opinion given by two of the greatest
men of their own or any times, (since which no
contract has been brousrbt to trial, between the
masters and slaves;) the service performed by
the slaves without wages, b a clear indication
they did not think themselves free by coming
hither. The setting 14,000 or 15,000 men at
once loose by a solemn opinion, is very dis-
agreeable in the effects it threatens. There
is a case in Hobart, (Coventry and Woodfall,)
where a man had contracted to go as a ma-
riner: but the now case will not come within
that d^sion. Mr. Steuart advances no claims
on contHibt ; he rests his whole demand on a
light to the negro as slave, and mentions the
purpose of dotainiire to be the sending of him
over to be sold in Jamaica. If the parties will
have judgment, * fiat justitia, ruatcoelnm ;* let
justice be done whatever be the cooseqiieDce.
SOi. a- bead may not be a hi^ price ; tbeo
A low followi to the propfwUin of above

1

700,000/. sterling. How would the law stand
with respect to their settlement ; their wages ?
How many actions for any blight coercion by
the master P We cannot in any of these points
direct the law; the law must rule us. In
these particulars, it may lie matter of weighty
consideration, what prnvisiouM are made or set
by law. Mr. Steuart may end the questioOp
by discharging or giving freeduni to the negro.
I did think at first to put the matter to a more
solemn way of argument : but if my brothers
agree, there seems no occasion. I do not ima-
gine, after the point has been discusfted on both
sides so extremely well, any new light could be
thrown on the subject. If the parties chuse to
refer it to the Common Pleas, they can give
themselves that satisfaction whenever they
think fit. An application to pnriiament, if the
merchants think the question of great com-
mercial concern, is the best, and perhaps the
only inethofl of settling the point for the future.
The Court is greatly obliged to the gentlemen
of the bar who have spoke on the subject ; and
by whose care and abilities so much has been
effected, that the rule of decision will be re-
duced to a very easy compass. I cannot
omit to express particular happiness in seeing
young men, just called to the bar, have been
able so ninch to profit by their reading. I
think it right the matter should stand over ;
and if we are called on for a decision, proper
notice shall be given.

Trinity Term, June SS, 177S.

Lord Mansfield, — On the part of Sommersett,
the case which we gave notice should be de-
cided this day, the Court now proceeds to give
its opiniou. 1 shall recite the return to the
writ of Habeas Corpus, as the ground of our
determination ; omitting only wonis of form.
The captain of the ship on board of which the
negro was taken, makes his return to the writ
in terms signifying that there have been, and
still are, slaves to a great number in Africa ;
and that the trade in them is authorized by the
laws and opinions of Virginia and Jamaica ;
that they are goods and chattels ; and, as such,
saleable and sold. That James Sommersett is
a negro of Africa, and long before the return of
the king's writ was brought to be sold, and was
sold to Charies Steuart, esq. then in Jamaica,
and has not been manumitted since ; that Mr.
Steuart, having occasion to transact businesty
came over hither, with an intention to return ;
and brought Sommersett to attend and abide with
him, and to carry him hack as soon as the bust*
ness should be transacted. That such inten*
tion has been, and still continues ; and that the
negro did remain till the time of his departure
in the service of his master Mr. Steuart, and
quitted it without his consent ; and thereuiion,
before the return of the king's writ, the said
Charies Steuart did commit the slave on board
the Anne and Mary, to safe custody, to be kept
till he should set sail, and then to be taken
with him to Jamaica, and there solil as m shive.
And this is the caose why be, captain &iw«ic^ ,

'. Mosli/n.

Mtfwatlhra ud nnw is. commuider of llie
rivte inarl, ilien Bod now l^lni; ia the rirer
rfTVanio, rfnl ilietaiil iirgru, cDmmiltcd lo
Ui ohKhI;, dtrlaJD ; »nii on whicb lie now
Hjfcji him tu Ibe orden uf ibe Coaii. We

Rtlldnv atlrnlion lo llienpinion nf lir Philip
to, had lord chsDcellnr Talbot, whereliy
tn piK-liTMllbEiDirWcs lo llH^ Brilisli planlers,
fit «9 tlw legal CDDuqUf nct» of bIdtcs coming
M«Tl« thi« fitiap-lnm or htiag bajilized, reeog-
Mtcdh/ Wd Hardtficke, lining ni cbincellor
w ibc 19(b atOtiohrr. 1749. ibat tMTer would
liti iImI ■ niii'OD liuil |ire*ni1e<l. if ■ negro
^canie a Chnsliin, be wa*
, hul no grnund in law : Ibat he
Ml laril Talbot, wtipn ailoinpy ftii'l snlitllor.
Mnml, wnr nf iipinion, iliii iin such claim for
liwiiwif a^^alid; ihal though the tlitule uf le-
■MwakadabotnlicdfillvintregirddnltiamaDor,
irtfcediJ»niciMiceiTebulthata roan miufhtBlill
Weamea ntttin it) ^rou, by conlvssinv bim»cir
Meh ia opm court. We are so welT agreed,
Mw tm ihiak there If no (>ccn>:ion nf bating it
aipwd (a« I iuliroaied an intention at ftnl,) | discharged.

A. D. 1775.

[82

before all the judge*, as ii umal. for obiioiis
tenaons, on a return lo a Habeas Corpus. Tbn
only question before ua is, whelbei- the cause
on the return h sufficient ? If it ii, the negro
iDUsI be remanded ; if it is not, he must be
ditcliarged. Accordingly, the return atatef,
lliat the slave departed and refused lo serve ;
whereupon he vrai kept, lo be wld abroad. So
high an act of dominion must be recogniied bv
the law of ihe country where it is used. The
power of a master o»er bis slave has been ex-
Iremety different, in differeot countries. The
state of slavery ia of lucb a nature, that it is
iucapable of being introduced on aoy reasons,
moral or political, but only by posilire law, wbick
preserves its force long afkr the reasons, occa-
sion, and time itself from whenceit wascrealed,
ia erased from meranrv. Ills so odious, thai
nutbingcan be suffered lo support rl, hut posi-
li»e law. Whatever inconTeniences, tberelttre,
may follow from tbe decision, I cannot say this

549. Proceedings in an Action by Mr. Anthony Fabbigas, against
Lieutenant-General Mostyn, Governor of Minorca, for False
Imprisonment and Banishment; first in the Common-Pleas,
and afterwards in the King's-Bench ; 14 Georoe III. a. d
1773— 1774.*

tAifallAving Case i* taken from the Trial,
«W was printed from the Notes in sbort-
iMd of Mr. Gumey, soon aner (he hearing.
)'n« lite AddrvM to tbe Bookseller, which
ffBwd«il Ihe Tfial, il is plain, that Mr. Gur-
mj waa employed lo lake notes for Ibe
pbiMilf. ami Ibal the Tiial was published by
IW idaiMir sr bis friends ^t former £^i-

t» the CoDunOD Pleta, Guildhall.

■iRRT Fjibkiuu, gent. Plaintiff.
MosTTN. eeq. I>efendant

- -' 'rr the Defttdaut.—'Hr. Serjeant
•^rjeanl Burland, Mr. Seijewit
KoUer.

Illicksluntf, 939. Cowp. IQI.

1 lie iitle nl'ibe proceedinK* first published,

-« asly llie txial nf the eaunc U Nini I'riRs

-r Mr. JiM. G<iuM, wbo nut for tbe chief

IS «f the Common Pleas, was tbua ex-

Tke ProMadiags at larre, in a Cnuse on
^ttsMi Wougbl bj AntliODj Fabrigii, g<aL

1 fIB Court being sal, tbe jury were called
over, and the following were sworn la try Ihe
issue Joined between tbe parties.

Jury.
Thomas Zachary, esq. Mr. Thomss Bowlly,
Thomas Asbley, esq. Mr, John Newball,
David Pow<l, esq. Mr. John King, >

Waller Enver.esq. Mr. James ISraiLb,

Mr. William Tomkyo, William Burley, esq.
Mr. Glll>erl Howard, Mr. James Selby.

Mr. Pcckham. May it please your lord-
shiji, and you gentlemen of the jury, this ia aa
action for an BBsautt and false iroprisoament,
brought by Anthony Fabrigas against John
Mostyn, esq. The plaintiff states in his ilecla-
ration, that the defenilant, on tlie 1st of Sep-
tembor, 1771, with force and arms, made an
assault upon him at Minorca ami Ibeo and
there imprisoued biro, and caused bim to lia

against lieutenant-general John Moslyn,' go-
vernor (if tbe island of Minorca, colonel of the
first regiment of drtf(oon guards, and one of IbB
gruoniB of his majesty's bed-cbamber; lor
raise Imprisonment and Punishment frmo Mi-
norca to Cacthagena in Sjmin. TrirJ befnra
Mr. Juit. Gould, in the Courl of Common-
Pleu, in Guildball, Loodoa, on the l)lh of

SSj

U G£OEG£ III.

Action for FaUe Imprisonment^^

[8i

carrietl from Minorca to Ctnhtg^na in 8|Mun.
There is a secviid oouat in the declaration, for
an assault and false iinpriitnDiii^nt, in which the
banishment is omilted. These injuries he lays

July, 1773. Coutaininijr the evidence vfrAa/im
a« delirered by the witnesses; with aJI the
speeches and arguments of the counsel and of
the court."

Before the Trial there was the following Ad-
dress toibe Bookseller.

** I am Tery glad to find yon are going to
publish the trial Mtween Fahrigas and Blostyn,
as the kuowleilge of the particulars of this in-
teresting cause must be worthy the attention
of the public.

'^ A« 1 have passed a great part of my life
in Minorca, and have some knowiedge of the
parties, I was induced from cariosity with many
others to attend this trial at Guildhall, uhere I
was greatly surprised to hear the account given
by governor Moshrn's witneKses, Mess. Wright
and Mackellar, of the constitaiioo and furm of
gu vernment of that island.

" 1 did indeed expect that Mr. Fabrigas's
counsel would have called witnesses to coatra-
dict the very extraordinary account 4bose gen-
tlemen bad given, which they might easily
have done by any persf>n who had the least
knowledge - oif thie matter. I su]>pose they
did not, either from thinking the subject im-
material to their case, or iicrliaps to preserve
to Mr. Serj. Glynn the closure of the trial by
that most eloquent and masterly reply with
which it was concluded.

«* Whatever the motives of Mr. Fabrigas*s
counsel might be for leaving this account un-
contradicted, I think it very material that the
world should not now be misled, as tbey would
be, should they read the evidence of these ^ea*
tlemen, and not he informed of their mistakes ;
I call them mistakes, for however extraonlinary
some parts of their depositions nuiy appear to
an obMrvant reader, I am unwilling to charge
them with any other crime than ignorance.

** I am therefore induced to trouble you with
this letter, that ^if not too late) yon may pub-
lish it with the tnal ; my sola object is, that the
public may be apprized of the misinformation
given by these geotlemm. I do not expect
that the bare oontnulkstioD of an anonymous
person shonld o? ensi the declarations upon oath
of two gentlemen s^veo in open court. All I
mean is, to apprise the public of the tnitb, and
to leare them to make such larUier inqniry as
tbey shall think fit. ^ ^

*' The purport of that part of the evidence

given by thosn gentlemen, wbioh I nwan to

dispnte, was, that a part of the island called

the arraval of St. PhiiVs is not under the juris-

didaon of the msgistrates, nor governed by the

nm lavs which prevail in the rest of the

****"» ^ is ooder ibe sole autkority of the

V^^in^^ and has no lav but his will and
pleasore,

M -!liiS^'^ *«■ ^^ ^ ^^ wrtraordiimry
•cPMiiiiilai as nhisiflli iMpouMB fi>r a oon-

to bis damage at 10,000/. To this declaration
the defendant has pleaded. Not Guilty; and
for further plea, has admitted the charges in
the declaration mentioned, but justifies what he

sideraUe number of inhabitants, in a country
governed by law, and which is part of the do-
minions of the crown of Great Britain, shonld
have had some jery urgent and apparent cause
to make necessary that slavery which English-
men abhor, and it it exists, must have been es«
tabUshed by some particular provision. If it
had been said, that in the fort of St. Phillip's,
in time of actual siege, an absolute military go-
vernment mnst prevail, the objects and the rea-
sons could easily be understood. But to say
that in time of profound peace not only the in*
habitanU of fort Sl Phillip's, but all those of
the arraval, which contains a large tlistrict of
country, with many hundred inhabitants, living
out of all reach of the garrison, should be sub-
ject not to military government, for that has its
written laws and forms of trial, but to the ab-
solute will of the governor, without any law or
trial, is in itselfso absurd, and so contradictory
to every idea of reason, justice, and the spint
with which this country governs its foreign do-
minions, that, I trust, my countrymen will not
believe such a monster exists in any part of
this empire, without better proof than the in-
formation of these gentlemen.

** I would not have the reader think that this
strange idea originated in the brain of Mess.
Wright and Mackellar, for I know it is a fa-
vounte point, which the governor of Minorca
has endeavoured to establish ; not so much, I
believe, for the pleasure of exercising absolute
authority, as on account of some good pen|ni-
sites, which he enjoys, and which can be de-

I fended on no other ground.

' «■ To establish this, it has been endeavoured
to alter the ancient dislributioo of tbe districts
or termioos of the island from tbor to five.

** The four terminos Cieutadella, Alayor,
Marcadal, and Mahon, have their separate
magistrates and jurisdictions, and comprehend

{ the whole isUnd. The arraval of St. PhilUp*o

! was always a part of the termino of Mahim ;
! in order therefore to establish the governor's
' claim, it became necessary to set up the arra-
val of St. Phillip's as a separate and distinct-
termino. If this could he done, it ceased to be
within the jurisdiction of the magistrates of the
island, who have power only in (heir fonr ter-
minos, and accordingly Mess. Wright ani
Mackellar advance, that there are five terminos
instead of four ; but those who are acquainted
with the island will know, that this is a modem
inventiott ; that in the records of the country,
there is not the least fouiHlation for such an
idea ; on the contrary, that every proof of the
reverse exists. The inbabitanti of the arraTnl
are sobject to the particular jurats af Mahon,
tliey diffvr in no respect fiiNn the other mhehi-
tanis of that termino, and the judges posseei
and exercise the same jwisdaetion and autho-
rity ift the amral, M Iksj 4P ia the elhsr pacta

t'ahrigat e. Moiign-

Iv ilmw ^J •II'^'OS U'Bl ibe plaintiff endea-
— »■* (■> crcBW k iDuday among the inhabi-
\M ot MiiMrea, whereupoii ilie Uerenilanl, w
r, WM obliged to leizs tbe phiiitifT, In
o^^ Mn til <]nji in prison, and ihen to Im-
MfckiM to C*ntM)[ena, ai it was lawful for
i» IS do. To thii plea iLe plaintiff replies,
■l»ja,UwltlMderenilaD(did asMolt, impri<
■■jHd iMilab him of his own \rnmg, and
•JMBl mn fueli cause as lie has aboTC al-
M|»<. Mi4 tlincapon imiui is Joined. Thi«,
Miaiauu, h the nature of the pleailincrs. Mr.
*JMt Of UD will open to you the hers on
"h"* oar 4«i-larat>iiii ia fonnded, and if we
•opTwt h by evidence, we shall be entitled lo
' t, with aucli ilaiuages sa tbe injurj

■ml HI

MiMyd

i^Dilvnm of the Jury,
bi* eauie fur the nlaintilF. Gentlcoien,
t BCtton thnt Mr. ralirrgas, ■ natice and
»f the iiland of Minorca, has brought
tbe defendant, Mr. MiMtyn, his majesly 'a
~ la Ihal islantl, tor nssauUing, false im-
_, Dad baoishin^ liim to a foreign coiin-
^mininoi of the king of Spain. Mr.
bu, in (he fini place, pl«aife<l that he is

■f the idand. which could not be the cute, if
tte daia Ml up bj' (he goternar really existed.
" Ma nranf wliateTer hM been ui can he
piJuuiidwtthis ctaini has any fnuo'iation;
wmiminHU Hen. Wright auil MackeJIar at-
*Mf( la (rire any hot tlieir ovrn assertions.
7W aal; tltrng thai had the least similitude lo
pw; wma Ibeir uyiog, that in one instance
te dBeer acting as coiouer to examine a
■tfBlhal had met with a riolml death in the
tBuii, aaked the guttrnor'a ItaTe before he

'TbMfBCl I do not pretend to dispute; il
[■af wadiing ; and waseridentlyonly a mark
«f iii|it*l. which It is no wonder n>agisirste«
ii Am Maad pay l« a iforeroor who realty hai
•i«Mh power. Dm to have made lht« amount
•« Mjt (hinf; like proof, it should hare been
*W««, thai tbe like aiiention was not paid to
Ibt fvrtTaor at Hahon, and io other part* of
ik( MbiML Tbe imtb is, that the inhabitants
an •• JepomlaDl an tbe raililar^, that 1 ba*e
Imwm tbe tame civility shewn m another part
«f A« JelenJ t« the oflii-er who happened to
eMMMiard titcre, but certainly without any in-
-^— ''■'-- — ttt him their authority

■«:";

as. Wriglil ami Mackellar also said,
1 tba Mianrqniua claimed lu be ifoterned

K* tfpSMiah laws, as auiicd beat for the mo-
«m ; but ■nunualed that the Spanish laws
frsia4wl, anil that by them the governor had
a 1^1 ky hta aolp auiboriiy to baniih.

" Tb« fact moit undoubtedly is, thai Mi-
•■a, a CDmiurrrd country, preserves its an-
IBBI ftbe ^fpMiiib) laws, mi the cuiiquemr
'•■MMpT* tbrm uttisn; and iherefare as

A. D. 1779. [80

not guilty of those injuries ; in the next, he ha*
offered this justification for himsi-lf*, that tiie
plaintiff, Mr, Fabrigas, was guilty of practices
tending to sedition, anil that Mr. MiKtyn, liir
iich miahehavjonr, by bis sole aulborily i

cIvBiion, complains of as a grievniire. This
Mr. Mostyn takes npon him to insist, in an
Gaijlish court of jusiine, is the Jasllliable ex-
ercise of an authority derived from the crown
of Eaffland. And Ibe facia which he under-
lakes llius 10 Justify, are, in the first place, a
length of severe imprisooroent npon a nativeaf
the island of Minorca, a Euhje[:t of Great Bri-
tain, liiing under the protectinn i>f the BngUsh

id, secondly, by las sole authority,
vriiiioin ine Interteniion of any Judicature, the
■ending him into e>:ile inip the dominions of a
foreigD prince. Gentlemen, some observations
must strike you upon the very slate nf ihis
plea ; they muil alarm yon, and you must be
anxious to kuotv the particulars of'^tliat cise, li>
irhich, in Ihe sense of any man who has re-
ceived faia edncalioti in this cuunlry, or ever
cotiveraed with £uo^lisbmen, il can be applied
BS jiistificaiioQ ; Iiiat t»se, Iherelbre, I will
ahoi'llj state tn yon : — Mr. Pabrigaa is a gen-
tleman of the island of Minorca, of as ^ood a
noDiIiiioD as any inhabitant of Ihal islaan, of as
fair and unblemished a character too as that
island produces. It la however enough, for .

England has not given Ihem others, it ia true
the Spaniub law.t do prevail in Minorca, both in
civil and criminal mailers, among ihemietves :
but it is eqaallr trne thai Ihey have the pro-
tection of llie English laws agaioit ihcir go-
vernor, who cannot be amenable to Iheir local
lawn, and llial however despoiicully a Spanmh
governor may formerly haveacti'd, it can not
be Ihe law of Spain, or of any couiiiry (lietanse
t is contrary to natural juotii-c) thai a inaa
iIkiuIiI he coiiilemneil and punished without
:lther trial or hearing,

■' It would have been easy for governor
Mnstyn, if Mr. Fabrigas bail commitieil »
crime, to have Inltoweolhe mode of proceed-
ing eslabtiahe'l there in criminal cases, which
is for llie advocate fiscal to prosecuie in the
I of royal gnternmenl, where ihe chief
Jurtice criminal ii the judge.

•' If I was nut nfroid of swelling this letter
loo great a length, 1 should make more re-
irksouwhat passed at this triiil, and point
I many more iustances of power niijnaunolily
luineil by Ihe governun. But I iuipe llinl
what appears from this publication wdl be suf-
Acienl to imlucc administratioa lo consider the
sUte itt this i-land, and give the mhtUntauls
wime better security for the stfeljy of their per-
sons, and eiyoymenl of their property j lor.
rxclusiie of Ihe meanness ibere is in ill using
Ihose who cannol t«oiitt. it is umloubiedty Ihe
best piilicy, for Ihe honour aud siiibihly of our
empire, I'u tiinke all it) depeniJeociea bajipt ."
ftrmrr JErfilwn.

87]

U GEORGE III.

Aatumjir Fake Imprisonment--'

[88

this present purpose, to say that Mr. Fabrigas
18 a descendant of the anlient inhabitants of
Minorca : that he li?ed there under the capitu-
lated rights : that, as such, the national faith was
pledged for his enjoyment of those rights that his
ancestors capitulated for; but what is of niore
consideration, being born in Minorca since its
•ttbjection to the crown of England, he was a
free-born subject of Enp^land, and claimed, as
his birth -right, the privileges due to that cha*
racter, and the protection of the English laws.
There was a particular stipulation upon the
surrender of the island, that every occupier or
possessor of land should be intitled, under cer-
tain regulations and restrictions, to the produce
of his lands, and to such profit as by his in-
dustry he could make of them. Upon that
p;round a dispute arose, to which alone can be
imputed the displeasure of Mr. Mostyn to-
wards the plaintiff, and the treatment ne re-
ceived from him, in the progress of it. Mr.
Mostyn, as governor, was appealed to, and bis
good-nature appeared to be so serviceable to
the adversary of Mr. Fabrigas, that early in
the morning Mr. Fabrigas was suddenly taken
from his house by a file of soldiers, and by
them conducted to a dungeon, unaccused, un-
tried, unconvicted. Thus, without any form
of judicial proceedings, this gentleman, who
then lived in esteem in the island, finds him-
self all of a sudden committed to a dungeon, a
dungeon that was made use of only for the
roost dangerous malefactors, and that only
when they were ready to receive the last of
punishments. In this gloomy, damp, dismal,
and horrid dungeon, was this man detained
without anj^ previous accusation, without any
call upon him to make his defence, or being
informed there was any crime or offence that
was alledged against nim, and without any
notice either to him or his family. When he
found himself in prison, there was humanity
enough in the breast of the keeper of that pri-
son to accommodate him with a bed ; but it
seems that accommodation was bv the power
of that island thought too much for him, and
the bed was taken from bim ; a check was
given to the lenity of the keeper. No notice
having been given to his family that they
might visit or administer comfort to him ; he
did, by humble request, desire that his wife
might be permitted to visit bim : that consola-
tion too Has denied him. In this manner was
Mr. Fabrigas deprived of bis liberty for a con-
•iderable time. It is unnecessary for me to
state particularly the precise time that this
imprisonment continued ; that you will hear
from the witnesses. Nor does a case like this
depend upon minutes, hours, or days, but this
is the nature and kind of imprisonment that
Mr. Fabrigas endured : so closely watched
that no man could have access to him, deprived
of the consolation of his family, severed from
all communication with his friends, relations, or
acquaintance, that could administer the least
comfort to him. For several days did this man
Aontinue under thii impiiaoDiiiciity oor did hit

iufierings determine with it ; his removal from
the dungeon was only a substitute of one spe-
cies of cruelty in the place off another : for the
instant he was taken from prison, he was car-
ried by the same arbitrary and despotic power
on board a ship, without any previous notice,
without any time allowed him to prepare for
his departure, without the ordinary visit or
comfort of friends and acquaintance, from
whom he was probabl v to lie se|>arated for ever.
Thus was this man taken from his native coun-
try, and the insupportalde hardships of a dun-
geon were followed by an entire expulsion from
his country, and every thing that was dear to
him : he was sent instantly on board a ship by
force, and carried to Carthagena, a foreign
country, under the dominion of the crown of
Spain. This is the nature of Mr. Fabrigas't
case. Now, gentlemen, for a moment, let me
remind you of the pretence under which this
imprisonment is inflicted. It is said Mr. Fa-
brigas excited sedition, or attempted to excite
sedition ; that he acted or spoke in a turbulenc
and mutinous manner ; and therefore that the
governor, as his plea states he was well autho-
rized to do, committed him to prison, and
banished him out of the island ; or rather com-
mitted him to prison for the purpose of baniah-
ing him out of the island, for I believe that is
the true state of his plea. Gentlemen, you
would justly accuse me of a great and wanton
waste of your time, if I should say a great deal
for the purpose of exculpating Air. Fabrigas
from the charge and imputation that is thrown
upon him in this place, because I am persuaded
that you, an English jury, if you were silting
in judicature upon the case of^ confessedly the
vilest of offenders, you would not suffer the
atrocity of the offence to mitigate that censure
and animadversion which is due to a behaviour
like this of the governor's. In private justice
to the character of Mr. Fabrigas, and not as the
least relating to any question here to be tried,
gentlemen, I will sUte to you upon what
grounds and pretence this mutiny is alleged
against Mr. Fabrigas. Mr. Fabrigas, as I have
told you, claimed, among all the other inhabi-
tants and possessors of lands in the island, a
right of seUiog the produce of his lands, under
certain restrictions. The proiluce of the lands
is chiefly wine : Mr. Fabngas had a consider-
able quantity. His msjesty, by his proclama*
tion, bad given free liberty to the inhabitants
of that part of the island where Mr. Fabrigas
lived, to sell their wines, the price being first
settled by the authority of the governor : — that
price is called the aflloration price. Notwith-
standing bis majesty's proclamation, by an act
and order, not of governor Mostyn, but of hit
lieutenant-governor, there was a pruliibition
that no wine should be sold without the imme-
diate authority of the mustastaph. An appli-
cation therefore, by Mr. Fabrigas, was made
to this officer, either to permit him to sell his
wines under the afforation price, which would
be for the general reUef and benefit of the
islandeny um of the giniaoDy or that he him*

Fabrigoi v. Mosli/n.

)rlt«l a fixed price. Tliit nfficer
■^ly with eiiber: Mr. Fobri^B
o Ihe necessity iil" inak-
k^pplicAliun lo gureroor Slostyn,
u llii* tllernittiTe, either to sell Ills
vjiimitrr ■ oerUio atlurxioD and ngulalfd
pr-, or tiial Ihe KuteiiimeaL Would buy his
■«( of him for llieir use, or the ube of Ihe car-
i.nu Ttiis (>etilion hds thought reasonable al
tit, and had a kind ansttfr; it was received,
aM 4 a|i|ivir* Id hate been takeo JDlo ciinsi-
Antnp, but Duibing- vts doae in canwqiience
•fn. JUr. Fahngas iherefore repeals his a[i-
^icaliua. and he irceivei kdcou rare men t lu
iifvcltbal tlie reason able nesa oi' hia petilion
■voU be taken inlo consideralian, aod ibal he
■kaahl be at hbvrlj to aell Ibe utoduce of his
imA But, iftnliemeo, at last LbU auRner was
Ciien lo tit. Fabrics: ibat il' it ajiiieartil to
k lb* Mine of a ciinsideruble nuDiber of ibe
lababiUnla ikf itie jjlaiid, ibalil was fur ihtHr
kinffti ihal aiich |iei roinkioii should be gitrn,
hn apfilMVUioo iboiild be tumplied wiih. Mr.
i-~iAn|ia< Ibea prepares BOcli a (letilioa; be kfels
il«i;*nl, and he prt«eots il in ^Ternor Moiiyn.
Naw, gaDtlamen, berc it is impassible lo stale
«tal |uaac4 between llie parties. It' it can be
|WHn4Bd Uial tlierewaa any Ibing mutinous,

|«M«eibat petnion will be proiluced to you,
aad il ■ill ajwak Inr ilaell'; but some iadigns-
Ma iraa cniK«i'ed liy soternor Moalyn against
tic idainliir, Mr. rabrii;aa, which protluced
llM abMige, unaccouDtable, unwarrantable,
•■lalamia^ euuduci, which we now, by evi-
Wcr, impuie lo Mr, Hnstyn. For );entle-
■a, iMtaatly npoo ibii, Itlr. Fabriifai is cun-
'■oelia iha oianner Iwlure-meuli'ined lo thai

MWri ta 5*1), till he was hurried ou board «

rtif, svl •>•■ conveyed lo Cartlia^^cnn in ^(jaiu.

Bna^ hr lb« flrn time, he rvcrirea iuielli-

fOM iif what was the proiocaiion that he

pta, wbat waa the ([round ul' auth Ireatmeal

■< hi*a, wbil cliari;* waa imputed in bim, by

■hai aallfotity be was so ilfiaiued and so

Inxtrf: tut here a|i[iean ■ Itlier under the

iaai «r (vtenwt Bloslyn, sviwing Ibis acl,

aa4 Mtiaff bim ihil be tlionttbt ii neces«8rv

ui mif^taA, fur the (lunishmeol of his ut-

' -jrx, b> aend bim into exile, and lo direct bim

1* oua*r_«ed tu Cnrtliatjeaa in Spain, Here

'■jiott find lliegiTeruoraToiriu^; Ihe whole;

. 1 jT be did nni alow ilic H hole, you muld

11 c OB ilouU ander what antburity these tlilnits

-e 4tMi*i liMaiiae you will hear from all,

•I tb«y caiuiot W douc but under thenulho-

I of ifac iforcrnor. Then, (•enilenien, Ihe

V'uMnmox, and ihe aeoding Ibis man inlo

. i^. arc lh« act* ot i;overoiir Hostyn. The

i-DMHiinrwl tinilrr such attanee sg^iravaling

•i-umtUtitvt of hurror aiid ignomiuy, and the

■-•^■■•c b«ia witliuul nnliee, without tliue for

p^nswan, wiihii"! K>*ii>K 1>'»> )be opporlu-

h; af payiof (lie 'eul alleiiiion to the oaii-

' ' ieuiiraiiiily,ioioezile; Ibete,

A. D. 1775.

[00

gentlemeD. we now presume lo treat a« the
aeis uf Koiernnr Hosiyn ; and llie KOTernor
sa^s, he is justified in >u doinjf, as ^nterupT of
Minorca. I should be glad lo know upua »hal
idea of justice llie ^of emur i{rniiti(ls thai pre-
Irnce. 1 conceive, ihsl in this ease, there cao-
uol he the least colour or pretence of aay judi-
cial examinalion, or the least liirm ot judicial
prDceeiling:s. GoTeruor Moslyn, alter liBTinff
iieen guilty of ibis ouirnse ID Ibe plaintiff,
would bare acted luuoh belter, if be had not
added this insult to the laws ot his couoiry, by
asaumiog an autbnrily iuciinipatibli: with the
least possible idea of justice that can bevnler-
tained in tliis or in any couDlry wliauoeter.
Genilemeo, if goveruiir iVloslyii complsini that
Justice is not done lu bis defence by his |4ea.
ibat he is fettered and eniharrosaed by it, and
cnuld now justily his conduct upon belter
grounda, we will freely giie him the oppertu-
iiity of doing it ; he cball rio il m h bat clia-
racler be ihiiiks proper. If he has acted uuder
ibe ci •lour of any judicial proceeilings in civil
Judicslure, Ut those proceediii|fs be pruducrd.
let liim desert and abBDdonlheslisinelulpleailiBl
he has presented ; he has even our tibrrly lo do
it. If the goveruor means lo be ju»tilied in his
inililarv character, I need not itll you. genlle-
iiien, that it is necessary in that cboracler, that
there shonld be judicial proceedings bkewiie
of a military court of justice. I will be bold
to aay, that the idea govenior Moslyn haa
adopted, that the liies, fortunes, and being of
Ibe iuhaliiiants of the island of Minorca are at
Ills mercy, and that by bis sole autliotily be
CDD inflict bonds and imprisonment on any
inhabilRDt nf that island, is the single idea of
governor Moslyn; and I say the Kovernor
dues nut, in this case, latk like a miliinry man,
fur his ideas are as foreign to ihe uotioi>i uf a
snldier, as of a lawyer. Gi'ntlemen. this is
the nature of the case that we shall oiTiv to
ynu, and which we sliall pruiluce in proof lo
you against gucerour Moslyn; an imprison-
ment, if il bad been attended with all Ihe cir-
cumstances of cumlort lliut cnatd have been

idmin

1 that si

pretence of
legal authority, sufScieut to entitle this gentle*
man lo call lor considerable damages from a
verdict of a jury : a baiiishnieni inlo a fureiga
(Muntry of a suuject of England, inlllled lolte
protected, to whom the laws caniiol lie denied
without breach of public faith, and a dan-
gerous wound to the general system of our
I'uoslitulinoal lilierlies. Thus, by Ibe sole au-
lliority of governor Moslyu, williout pretence
of judicial Fxaininalinn, was Mr. Fahrigas sent
inlo bsaisboiKDi. If all other circumiiancei
were away, llie being sent out uf his native
coimtry by an arbitiary act of ihe gnvenior of
that island, is surely grouud enough to call fur
the rooHi considerable daiiisges. Hut, gentle-
men, you are lo add to il every circuinstancfl
of discoiiiforl. He wai, during the whole
lime of his imiirisomneni, kept in a gloomj
dungvoo i uo circumitaucB of ignoraipy ibat

14 GEORGE III.

91]

cavAi iffiedt the mind of m ntfii of ftelin|f was
omitted : be wtm put into a place set apart and
deaif^ned only for the reception of tbo wont of
maieiactora, secluded from any conversation or
oomannnication with his frienda or acquaiDt-
•nce, his neareat relations, his wife or bis fa-
mily, deprived of the comfort of a bed, and
oblif(ed, for a conaiderable number of days, to
•uhsist upon bread and water. This is a caae
of the must unparalleled cruelty ; the moat in*
geniona circumstances of torture beioff added
to the moat unjustifiable and the most lawless
eiertion of authority, that I am persuaded has
ever appeared before any court. If i^rernor
• Mofttyu can support the |>oweni of this claim,
•od vindicate himself, aa governor, by the

Slenitude of his powers, and that the sole ju-
icaiure of the inland residea in his person ;
if it was lor a moment possible for you to en-
tertain the idea of the lejilfality of such a power
beinif placed in anv man, in consequence of an
authority derived from the crown of Eoii^and :
1 aay, it it was possifaje for you to conceive that
Buch a power could exist ; try him even by that
rule, try him by that rule, and he ia without
ezcuric ; for the most des|iotic, the most arbi-
trary and uncontroutabte power thai is ever ex-
ercised, profesaeth at least to act by caliin^if
opoa the party accused to make his defence,
«nd I Mieve in no part of the globe is it
looked upon as just to condemn a man un-
heard. Let general Most3'n travel into Asia, or
visit his neighbours on the continent of Bar-
bery, he will not And examples there to justify
his conduct, in any of the powers assumed, or
in the use be has made of them : for if their
powers are not circumscribed or restrained by
any lawH; if they act, as the general professes
he has a right to, by their aote will and plea-
sure ; if that ia the rule of their government,
yet atill there is an idea of a principle of na-
tural justice that should govern their proceed-
ings there ; at least an appearance of it tliey
•re anxious to produce. 1 never lieard in my
life that it waa the avowed privilege of any
country, that a man should be charged with
mn offence, that he received the punishment
for that offence, without tbe offence being ex-
plained and stated to him, and an opportimity
5iven him of hearing the charge and the evi-
ence by which it was produced ; but this is
the case of a transaction in the dark, a secret
indignation conceived, that indignation imme-
diately folknved by the most horrid exertiona of
power upon the person of Mr. Fabrigas— com-
mitted to a dungeon, and unapprised of the
charge against him till sent onl of his native
country, and upon the voyage to the destined
place of his banishment. The offer made to
general Nostvn not to tie him down merely to
the justification specified in his plea, but to give
him leave to offer any justifi<»tiou that may
be consistent with the idea of civil or military
justice, may be called iosidioiUf because I
must disbelieve every thing suggested on aiiy
trust, if I think the offer can be of no beseflt
to him if wanted i but it naj he added to il|

Aeiknjbr False Imprisonment'^ ^ |]99

*« Governor, take yonr ideas of law frem B«r-
bary or Torkey, prsduoe yomr precedent, India
or negro law, yen are still mable to justify
yiiur conduct.*' Gentlemen, these are the
circunastaocea we are to lay before you in evi-
dence. The governor may, if he pleaaes, eo*
deavour to chaige tbia gentleman with motinj.
If be does, 1 presume he will adduce his proof
of it. But if it was possilile to decide that Mr.
Fabrigas waa a mutinous man, though tbe re-
verse of that character is but justice to him ;
nay, if yon conki decide that he was tbe worst
and roost dangerous of offenders, governor
Mosty n's conduct is still dt'stitute of any colour
of justice or law. His conduct is totally un-
warrantable, and the phHeuco he baa here eet
upi that he ia a prince with a power unbounded
and unlimited by any nile or law whatsoever«
that he is authorized to act by his own will and
pleasure, must represent this case in so alarm*
ing a light to you, that 1 am persuaded that
you, who have taken your ideaa of law and
justice from conversation with Englishmen,
and obseiTation on the English constitution,
will give all attention to the particular auffer-
ings of the roan, aa well as to what you owe
to yourselves, your country and posterity ; and
we trust, even in the very best conatructioo
that is |)ossible to put on governor Moatyo'a
conduct, that you will think the danaagea laid
in tbe declaration are not extravagant.

Basil Cunningham sworn.
Examined by Mr. Lie.

Mr. Lee. Yon are in aonie military oi*
parity ?-^Cnnningham. Yes.

Wert you in the year 1771 in the island
of Minorca ^— Yes.

In what character ? — Acting aerjeant majar
for the royal artillery.

Do you remember Mr. Anthonui Fabrigaa
being at Minorca ? — Yes.

Were you serjeaot major at the time he waa
aeized and taken into custody f— 1 waa, when
I saw him brought into prison.

Do yon recollect any orders at that time
coming in any body's name touching his oon*
linement f — ^There waa a general order given
us, that three more men should be added to
the artillery guard.

Couri. Have you that order?-— il. Mo.

Q. Waa it not your office aa aerjeant major
to trauaeribe that order into your book P — A, I
fifave that order out in the company's enlair
book.

To whom does the custody of that order
book belooir ?— When the books are writtefi
out, they give them to the captain to whom
they belong.

They put three additional men sentry npoii
that occasion ?^* Yes.

Court. Why?— il. To do duly upon th#
prisoner Mr. Abrivas. '

How long had Mr. Fabrigas been in cna-
tody at that time when this order was gives
ontP Was it immediately uDon his coming into
aaMdyy or after ha had been put thereP—

W]

F^brigai.^ M^ifn.

A. D. 1775.

(M

T« Um Wil •f my Tfcollection, I believe about
tmm/LyUmt boura after .lie bad beeo in cat-
ti45««r the evening of tbe same day ; I ean-
BOlbteerUiQ as to that.

YfiaaB teU us what arMOo it was tbat Mr.
Fikqpis ivma comsBitted to? — A, He vraa put
iabpoaaq No. 1.

Ilbaiis tWe gcDenl use of tbat prison P to
sM ii it appl£d P— All tbe prisoiiers that are
fwkj of capital offences, or for desertioD, we
onMaly pyi io Ibere.

Davoa recellect any circumstances attend-
■V w. Fabrigat's imprisonnoent P mention
asy tbat occur to you. I>o you recollect the
awmer in whiob be was brouff bt or confined P
-«To llie' best of my recollection he was
hissfbt by a party of soldiers, whether of
tbe &tb regiment or the 6th, I can't say ; he
'it in haadoafied, I think, but am

Bsw \om% was be confined there P — As near

as 1 can racoUect, shoot five or six days.

la tbat prison P — Yes.

Dang ys confioesBent there, can too tell

Ibecamt or jury whether he was permitted to

kt visietf bv lua wife or fsmHy P_No : the

had Ciders that bo should have no

witb any body but tbe prevost

I>s yon know of any orders that he should
an ba sooB byl by tbo jirevost marshal P— The
WBlry informed me that was his orders ; be-
■rifl^ it w fmk into tbe general orders too.

ioi. Dmoy* If yon mean to affect the defeo-
dmt witb tbitf, yon abould produce the order.

Mr. I^e. Well then, we shall produce it.

(L IniKSk, 4m jim know whether any body
w nmitted to visit him hut this prevost mar-
^balr— i. I doo^knowof aojy ; if they did, it

■sisairary t^ordera.

Ai jan know if any body applied to see
biiaP— His wife applied to see him, but was

Jited,aal

informed.

What is this, prevast marshal P — One that
hm tba chm^ipa of. all prisoners tbat are con-
fasdlar capital crimes; be has the keys of

Islbiaaa esneatioDer too^ as well as a gaoler P

-Ne.

Can yoQ lell os the cause for which this geo-
oooMMtlsd — tbe occasion of it P— I

Do yon know what Mr. Fabrigas is P — He

aaa mbabitant of the island of Minorca.

A native? — Yes: a Minorquio.

Do you know whether Mr. Fabrigas \b a

■an of any property, or was a grower of any

upon that island P I>o you know in what

bo lited ?-*(le lived like a gentleman

Were you acquainted with any disputes
^•sthing bis liberty to sell his wine P — 1 know
Mibiog at all of it.

IH you know any thing of what happened
^ ban aAer bis contkiemeot in this prison P
*te breame of bin after f— 'He was sent out
if tbe island.

ft

Do yoa know of your own knowledge P^- -
I did not see bim taken away.

Do yoli know of any orders touching his'
being sent P — 1 did not see any orders.

You being at 8t. Phillip's at this tine, when
be was in prison, you can tell us whether he wa»
tried for any ofi^ioe previous to bis commit-
meat there, or after P — No : be was not tried.

Crott-examioation by Serj. JDavy.

How long bad you known this Fabrigas be*
fore the time of bis being brought to ^lis pri-'
son P — I had seen him different times, being in
the island for between eight and nine years.

I wish to know in the first place whether ho,
was a quiet subject, or otherwise?— I never
heani any thing to the contrary.

What P but that be was a quiet, inoffensive
subject P — I never heard to the contrary.

Ho was looked upon as a very good friend
to the garrison, I believe P — I really can't tell
what he was; he was an inhabitant of the
island. I don't know tbat ever I spoke to bim
in my life.

What part of the island did ho live in P — At '
St. Phillip's.

There it was he was imprisoned, I presuoM P
— Yes : he was brought a prisoner to 8t. Phil- .
lip's castle.

I think you say yon have been in the island
fire years P — Almost nine years.

Then you were there before Mr. Mosty n was
appointed governor P — Yes.

You were there in governor Johnston's' time P
—Yes.

Were you there in governor Blakeney'a
time P— No.

JofRfs l^Deedie sworn.

Examined by Mr. Grou,

What were yon in the year 1771 ?— A cor-
poral in the royal artillery in the island of Mi-
norca.

Did you see the plaintiff hroujyrht to the
casileP — No: 1 did not Ree him brought; I
was a Serjeant of the guards when be was de-
livered up to me, from the 61st regiment.

Court, Can you recollect tbe time P — A, No ;
it was some time about the middle of Septem-
ber, to the best of my knowledge, in the year
1771.

In what way was he delivered? — He was
delivered to me in the prison N® 1.

What were the particulars of that delivery
to you? in what way was he delivered? — Hfo
was iu but a very mean habit ; for, by what I
could learn, his clothes and everv thing tliat be
brought in witb him bad beeo taken from him.

Counsel for the Defendant, That will not do.
What condition was he in ? — A, He was iii the
prison ; he had been in the prison almost
twenty-four hours, before he was delivered to
tbe artillery.

What orders did you receive concerning
him ? — ^That I was to suffer no person to ap-
proach the grate.

What gnUe P— Tbe prison door. -

95]

14 G£011G£ III.

AcHonJbr False Imprisonment*'^

[96

From whom did yoi* recem tb^ orden ?—
From the adjutant Iteuteoant Frost; he was
oor acUofT adjillant ; be read the orders.

Not to let any one come to that ^rate ? — Or
oonverse, or have auy oommuniqition with
him, upon any account.

Whose orders does the adjutant lieutenant
gi?e uiit ? — I imagined it was a general order.

What do you mean by a general order ?— -
Coming from the commander in chief.

Do you mean from goTernor Mostyn? —
Yes : he was commander in chief then of the
island.

What order ?

Seij. Davy, I will give you no trouble about
these things. With regard to orders, you have

g'ven us notice to prmluce the orders. The
ct is as you contend. We mean to conceal
no circumstances.

Court, 1 think the right way will be, as
it is now admitted, that this was done by the
defendant's order, to proceed with your parole
evidence, and read that at tlie conclusion.

Counsel J§r the Plaintiff. If your lordship
pleases, we will read the order of imprison-
ment, and the sentence of banishment.

The Associate. The title is,

** Orders given out to tlie troops in Minorca by
lieuienttut general Mostyn, governor of the
islaad, who arrived the 21st of January,
1771. September 15: In order to relieve
the main guard at St. Phillip's, which now
wants a sentry extraordinary upon Antonio
Fabrigas, confined in prison N** 1, general
Mostyn orders, that three men be added to
the artillery guard in the castle square, as
they are most contiguous ; and that duty
taken by them, the sentry must be posted
night and day, and is to suffer no person
whatever to approach the grate in the door
of the said prison, either to look in, or have
any communication with the prisoner, the
prevost marshal excepted, who is constant-
ly to keep the key in his possession."

** To Anthony Fabrigas de Roche.

** You Anthony Fabrigas, inhabitant of the
arraval of St. Phillip's, are b^ me, chief gover-
nor of Minorca, banished this island for twelve
months from the date hereof, not to return
hither until that time is expired at your peril,
for your seditious, mutinous, and insolent be-
haTiour to me the governor, and for having
dared most dangerously and seditiously to raise
doubts and suspicions amongst the inhabitants
of the arraval of St. Phillip's, and to excite
them to dispute my authority, and disobey my
orders ; and for having further presumed most
dangerously to insinuate, that his majesty's
troops unJer my command, without any au-
thonty from them for such false and scanda-
lous insinuations, were imposed upon.

«» J. Mostyn, Governor."

" Mahon, 17th day of September, 1771."

Q. Yon say you received this order to per-
mit BO p«raoQ to approach lh« grate of the

prison, or have anv communication with the
plaintiff: did you obey this order P — A. Yes.

Did ^on obey it strictly f — Yes, as strict as
it was m my power.

Did any person apply to see the plaintiff?—
Yes, his wife and two children.

Were they permitted to see him ? — No.

How near were they permitted to come to
the prison?— As nigh as I cad guess, about
thirty yards.

They were not permitted to come nearer ?—
They were not permitted to come nearer.

ifo you know in what way the plaintiff laid F
— He lay upon the boards.

Were there no beds ?— No beds.

Was any bedding sent to him ? — I saw hit
wife vrith bedding, which was not permitted to
be brought to him.

In short, tell the jury whether the guard
would suffer any thing whatsoever to pa»
them ? — If they did, they were sure to cone
to trouble, to punishment, by it; and I am
certain they never did.

Tell us what his subsistence was?^Bread
and water.

What sort of subsistence has a deserter if ho
is confined in this place ? — It is a general role
in Minorca, that deserters and prisoners, eveo
for capital crimes, should have provisions seot
them.

What provisions? — Such as the island af-
fords, bread and beef.

Court. Do you know whether any provisions
were brought nim ? — A, I never saw any ; there
was such a strict order, that nobody ever at-
tempted it.

1 believe there was an air-hole at the top of
the prison? — Yes.

Was any body placed over the air-hole f—
No ; but there was a sentry upon a bastion
near to it, who had orders given him, that no-
body should approach this air-hole.

Upon what account ? — For fear any thing
should be dropped down to him.

Court. Was that particularly upon this oc-
casion, or generally when deserters were there t
^No; I never heard a circumstance of the
kind, but during the time Mr. Fabrigas was in
prison.

Did you know the plaintiff? — Yes, I have
been at his bouse several times ; I was at the
island almost nine years.

What family had he?— A wife, when he
was in prison, and Bwe children, to the best of
my knowledge.

Now, during the time you have known him,
have you never heard him say any thing dis-
respectful of the governor ? — No ; he onlj
complained of his hardships, of his own bodilj
sufferings.

William Johns sworn.
Examined by Mr. Peckham.

Q. Was you at Minorca in 1771 ?— il. Yes.
In what situatioo and capacity ?— I was
garrison gunner.

W]

FaMgiu H>. MoHf/n*

How \tfag were 700 in the island ? — Almost
UBeyetrs.

Dii you know Mr. Fabrigas P — ^Yes.

DU jou know Mr. Fabrigas's situation in
Ik iriand ?— He li? ed f ery genteel in St.
PMfc's.

Did be live in the same state as the pHncipal
ahsbitants of St. Phillip's ?— Yes, as much so
m ay man in St. Phillip's.

Vh you remember any thing of his being
jBMOoed f — I saw him urougnt to the prison.

In what manner was he brought? — By a file
sfmen.

Were his hands bound P — I cannot say.

8cr|. Damf. I admit that he was with his
kuds bound, as the first witness said, and that
ke was kept in prison by order of the goremor.

Mr*. Peckkam, Do yon admit that he was
kand-eufledP

Seij. Dvoy. Yes, that he was hand-cnlSed,
Md kept in the way described by the former

Q. Was he kept hand- cuffed in prison P — if.
1 beliere not.

What sort of a place is this prison P— 'It is
itt apart for capital punishments, for prisoners
iketare under sentence of death.

Is it a prison dug out of a rock P — It is a
ssUaraneous place in the body of the castle.

is it under ground ? — No, under the top of
Ae castle.

Is it a ground floor P — A ground floor, I
Mete.

This beiog the prison, and von standing there
Is guard him, do you remember any of liis chil-
4ca coming to see liimP — I saw Ihh son the
fa« day be was confined there, a boy about

lS.cime to see him.

What did he come for ? — He bad some pro*
viMBS in a basket.

Did he apply to you, that those prorisions
■i^t be given to his father P — He applied to
Ike regiment then upon duty to give them to
kii father, iMit was denied.

8erj. Darvy, I admit he was sent hand-^ufled
to tbe prisou, as described by the former wit-
BCK : I meant to include the matters of belief
as well as matters of knowledge.

Court. For my part, I like to hear the eri-
dcnce in any case, to know the truth, and then
«e have no squabbles afterwards.

Johm Craig sworn.
Examined by Mr. Serjeant Glynn,

What are you P— A matross.

Was you in the island of Minorca in 1771 P
—Yes.

Do you know Mr. Fabrigas? — Yes.

How long hare you been in Minorca P —
IVliy niijli nine years.

What condition was Mr. Fabriji^as in? — In
ftry good circumstances there ; lie is reckoned
SDv^'ot tbe best in circumstances in Ih^ island:

Do you remember the time when he was in
tbe dungeon there ? — Very well.

You did not do any duty upon him, I sup-
FsmP— Ycs,Idid.

VOL. XX.

A. D. 177S. [9S

Do yon remember whether peopla were ad-
mitted to see him P— I am sure there were none
admitted to see him.

Do you know whether any nerson came to
see him that was refused P — I Know his wife
and children came, and they were refused.

Do you know of his being taken out of the
prison P — I saw him put on board a ship in the
harbour.

How many days after his first imprkMm-
ment ? — 1 am not certain of the days.

About what number of days was he in con-
finement P — Five or six days, to the best of my
knowledge.

In what manner was he taken out of prison,
and put on board a ship P — I happened to be
down at the quay, and saw him put on board e
boat, to be taken to the vessel.

What time was this' P^Early in the morning,
I am not sure to the time, but to the best of iby
knowledge I think between three and ibur in
the morning.

Had he any time allowed him on shoreP-^
No, he was hurried on board ; bis wife and
family were coming down to speak to him, and
the soldiers \cept them off, and would not let
them. I wanted to speak to him myself^ aid
the soldiers would hot let me.

You saw his wife and children come to him,
do you remember whether they brought anT
thing for him P — I think they nad some bed-
ding, to see if they could i^et it on board the
ship he was g'Hng to, and it was turned back
again, they would not allow any thing to come
to him ; he was put on board a boat and taken
into a ship whicli was laying in the harbour
there, the ship was under saiL

Serj. Davy. I admit he was banished to Car-
tbagena.

Coun. for the Plaintiff, You admit he was
banished by governor Mostyn for a year P

Serj. Davy, Yes, 1 do.

Colonel John Biddulph sworn.
Eiamined by Mr. Lee,

Q. Yon are an officer in the regiment that
was at Minorca P— ul. 1 was not in Minorca at
the time this matter passed.

But yon have beeu at Minorca P — Yes.

Did you know Mr. Fabri^as ?— Yes ; I knew
him from the time I arrived in the island until
I left it.

VVhen did you arrive there ? — I think in the
year 1763, aliout May or June, and stayed about
eight years.

When vou knew Mr. Fabrigas, in what con-
dition and circumstances was heP — He seemed
to me to be of the second sort of people in the
island ; he had some viueyards and some
houses, and some property, and was received
not as of tbe first r|uality, but as a gentleman ;
he was estcemcHi a man of property : 1 should
call him a gentleman farmer.

While you knew him what character did he
bear P or how did he behave himself, as far as
you had an opportunity of observing ?— As tar

H

99J

H GEORGE III.

Aetionjbr False In^ritontiunt-^

[100

ai I cotikl obferre, he behaved very well, and
bad a very good character. 1 used to em-
ploy liiin in getting wine for aie, and other
tbiogs the island produced, because I bad a
famUy ; and often he was very useful to me in

Iirocuring things at a reasonable price. When
[ was at Citadella, at the other end of the
island, he came there, and was with some of
the better kind of people ; be was always with a
don Vigo, or a don Sancbio, who were reckoned
the pnnciual people of the place; they are
nobles in that island.

While you knew him, 1 ask you what was
bis behafiour P Did he behave like a peaceable
subject, or like an unruly and factious one f —
fie always behaved with very great decency
and decorum.

Cross-examined by Seij. Burland.

Q, Do you know whether he was a man of
property in the island ?-^A, As far as I under-
stand he was, hot it is impossible for me to say
positively ; he was reported such.

He had a father living? — I believe he had,
an old man.

You do not know whether it fras bis own
property or not ? — It seemed to be his.

He conversed with the two noblemen yon
mentioned ? — Yes ; he was at their houses as
a gentleman.

Did you use to visit at his house ? — I have
been there.

Did vou ever dine or sup with him ?— >I think
1 dined with him once.

Court, The gentlemen suggest, but you
don't mean to make a distinction between the
classes there P— i4. 1 do make a g^reat distinction.

Q, What promotion has general Mostyn in
the army at tliis timep — A, He is a lieutenant
ffeneral,*and commander in chief ot the island of
Minorca.

Has he any military promotion at home?
has he any regiment P — Yes.

What regiment is it P — I don't recollect the
number ; it is a regiment of dragoons.

Do you know of any office that the general
has about bis majesty's person, any place at
court? — 1 don't recollect it ; 1 believe he has.

Serj. Glynn. My lord, we have dune for the
plainUff.

Serj. Dory for the defendant. May it please
your lordship, and you, gentlemen of the jury,
1 am of counsel in this cause fur the defendant,

Enrral Mostyn, who is charged with a misbe-
viour towards the plaintifl*, in the defendant's
capacity, as governor of this island ; the
plaintiff, Fabrigas, being a subjtrct of the crown
of England, a native of that island, a Minor-
giiin by birth, and living in the town of St.
Phillip's, (there is a reason why his residence
in the town of St. Phillip's is, in my apprehen-
SKMi, material, for some matters which I shall
trouble you with before I sit down.) The de-
lendant was appointed governor of the island of
Minora on the 9nd oTMarch, 1708. His pie-
wu gw cmor JtluMlM, wh«n prads-

cessor was general Blakeney. So far I am
able to trace back the governors of this island,
whom the questions before you have any sort
of relation to ; and any further is unnecessary.
I don't know whether it may be new to any of
yon, gentlemen, to inform you, most probably
not, the history of your country will tell you, that
this island of Minorca, whose situation is in the
Mediterranean, and which is of extreme use ia
the protection of the Mediterranean trade, was
taken in queen Anne's wars from the crown of
Spain, and was ceded by that crown to Great
Britain, by the treaty of Utrecht in 1713 : that
upon the ceding of that island, the condition
annexed was a reouisition on the part of Spain,
which was acceded to on the part of Great
Britain, that the inhabitants of this island of
Minorca should continue in the free exercise of
the Roman Catholic religion, which couki be
no farther than was consonant to the laws of
Great Britain. For whereas the laws of
Great Britain will not allow the pope's bulls,
excommunication from the court of Rome, the
inquisition, and some other matters of that
sort ; therefore a free exercise of the Roman
Catholic religion was not with the exercise of
any powers in the bishop of Rome, hut what
were acknowledged by the laws of Great Bri«
tain. They had only the free exercise of tbeic
religion, as Roman Catholics. All other rights
which they bad, and all laws by which thej
were to be governed, were to be given to tbeni
by tlie king of England. He was to establbh
what code of laws he thought proper in that
country. They were to be subject either to d? 11
jurisdiction of'^ particular sorts, or military, or
whatever sort the king of England pleawd.
They were a conquer^ people, a conqiier«4
island, and no terms were annexed to that treat j
of Utrecht, but only the exercise of the Roman
Roman Catholic religion. The king was to
appoint his governor of the island, to goyem
them by such laws as he thought proper to
direct ; an arbitrary despotic government, or n
qualified government, or whatever government,
under whatever sort of magistrate?, or what*
ever order the crown of England should think
pro|>er. There is a manifest and very wide
distinction, to be sure, between a Minorquin bj
birth (I don't speak of an Englishman that
goes over there), and the case of an English*
man: 1 just mention these things, vihicli will
be very projier for your consideration through-
out the i^irogress of the several facts I shall
mention m ibis cause. They are, in my hum*
ble apprehension, essentially necessary to your
consideration. Some time aAer these people
(1 don't know exactly the datr of it) had t>e«
come subject to the crown of England; after
1713 they petitioned for a cootirmation of the
usages and customs of Spain, and to be go-
verned by the laws of Spain, as they had been
used to be before: and that was granted, te far
as the wisdom of the crown thought proper to
grant; and there were certain regulations^
which I will take notice of by-and-by. Many
rqplatioos w«rc fluute ftem time to tima occn*

Fabrigat v. Mottyn.
Mulljr, fay lb« erowD of Great Britain, for
llii aUBnal police of (he i>tnDil. Gentlemen,
1 ihiidid infurm yaa loo, ihtl llie islanil of Mi-
Mftt oontisls ol five sepirtte ilitiiions or dia-
bia. In fnur ol' thcH ihey bnfc in«([iMraiei
WMlIy decieii. In (lie filili, which ii called
lbun»l of Ki. Phillip'ti, which is the I'nrl
^iW ialanit and itiieeunty, there the parlicular '
lanawkkh lajuat tlie Buburht, which takes In
itMtBol'Sl. Pliillilt'a mljoining close lolbefnot
rfthe citAikl, Ihal dialricl is under the imme-
itOa pwgrntpent of the governor ol'ibe island
maiuuil hy the crown. Tliere are no jiirals,
•kiek ibe commoD name of the niaeiiUatei
iitb* Mhcr ditiiions, whn are elected h^ llie
papla i b«l llic (iroper officer I'ur the |iolice of
■k« Hra**l is apiioiDteil by the gniernnr hrtii'
Rir, and I tliink hia title is mustaslaph: heia
tW ofiecf apiMiolril by ibe ^vernor of the
■knl. TbaK i* an extreme necesaity, that
Mve particvlar care abauld be taken in the re-
(dalMO «f Ibe jHtlire ol' that part of the islaod
Mhieb ■■ itBOtcitutrly contiguous to the fort of
Sl Philfip'a, and where there la a perpetual
(tmauB, for \\m take of preserving mililary
teipIlM^ A Ian ortliiaiiland, apiongatolhErB
>kc!b i* neeeuary tn nieniioii tu yau, because
Iba hiMor^ of ttie traniaclion ha* iuniediate
l^ua U It, i*. that the Jurats in the sereral
yK\t nt ibe lalaDil in Uie luur ul her districts uF the
■had, aii<i the muslaslaph in the arraiul ol' St.
Ptafcjt'a, whfcb a the Dhh dependent district
min Ibe itnm«iliate dcpeadcoce and |^*ern-
•m of th« ijMTeciior bimielf, set a price, and
iJt', anJ inramire, ujiun the Reveral comnio-
' IS. I ditn't know whether it includes all
iMiitlica. hut wine, and corn, and other
!"■((, «bi«hibey call the alTciralion, that iathe
VB^ar price to be jmid, upuo caiumoililies to
tt^L Gcnlleinen. in the year 1733, (the
AHtnc M malerial,) there was a reflation
d bjr. tlie ciowu, made by the kin^ m
I cstract that part of it that refjarris

A. D. 1775.

fetMcMM

; that it, that the

diairiclK and uni'

rnK) < that tbi

he left at full

A you Me ihete are
MMwaitUa, but these tour
■ rniUa are aytwiiyinoui
r^tt» of all the uuivemi
'■'^^ny. wiilioui ibe inlerveniion of the com-
sjoiMi, or any otJier of the royal officers,
' M Bake the ■fTuiatioa*, and setiie the assize
•aa< prima of all mariner of com, and all man-
* ■■ cf pr<» isioni, the produce ol' the island ;
' tii alau tlic price* of com imported into the
'ato4, aail buii|;ht by the uDitersiliES for the
' ftmX of Ibe jiuiilic ; and that the natives anil
'aaiababilatits heat all titnes perniilled tn sell
'A* iBia* al nr iindar the atluratiun, without
' Mf JBWrf tntioD ur the ([""^lor or sccre-
ina, nr any vihrr (Krson or prrauns acUiii;
•da iiii aulhnriiy.' You see, genllenaen,
M ibia onirr uf rouncil imports, that these
''il'* Br« ttulirr the *>Molula deipoliirn. if I
^11 wtay, uif tlitr L-rawn of Greul Uiiiain. be-
u!m tbw « IS a language that wc m this cnnn-
' .' m M ac^titiutco witb. \V beibvr to icU or

[103
n Eoglish

buy our goods, or not, does not auil
genins, the genius uf the Eughsh law. i nis is an
order made by Ibe king in council, in the year
ITSa. That urdtr of council, and some niber
proTtsioDS that were made by that order, oci-a-

therefure another order ol council was n>aile
the folloiving year, the lOlli of August, JT53,
which you will in Ibe course of tliE evidence
hate read to you. There are sonte iiiatiers \a
it I will trouble yon with. It was made ii|H)n
the conaideration of several papers irDiisniilied
from MioorcB by general Blakeuey, whu was
governor at thai time. Several ihiugs wer«
advised by the privy council. Among the
rest, I shall judt extract a few thinirs. With
reaped uf the firal ailicle in the civil branch,
relating lu the making the afforaiioua, about
which great cnmplaiiiU have been exbihiieO,
thai the governor be instructed to require the
jurats of the several terminus in the ithiod, at
all proper times and aeai>onG, to innke Iha
tame nflorations: and in case tbe taid ju-
rats should refuse or neglect l<> comply
with his command (herein, that then tbe snid
governor be authorised to make the said alTora-
lions himself: but due care is to he taken, that
tbe said alforatioiis be made equal and (general,
as ID all the things and persona lubJM'i to the
said afToratioBS, as well as at all prDjwr aeaiiiins.
This word * aeasoDs' will have some uieaning
by-aod-by. Then they go on wiih a great
many regulations. AmongM the res) is, adtia-
ing the king for tbe future, hy bis Irllers patent
under the seal of Great Dritam, tuanthorise the
governor, or in bis absence the lieutenant- no -
rernor, ur comraaniler in chief for the lime
being, to exercise the power uf civil ;{Overn'
ment, as well as those of the military, lakiog
cs^to preserve the one separate and distinct
from the other: and that tliev should recrive
all this power, but that they should be tiihject
nevertheless lo such iustruclious as should be
giveu by bis msjetly. He is lu govern ac-
cording to these direcliona containe<l in the let-
ters patent, aa also to such inalruclions a* shall
be given to him by the king. Then, among
other things, here is a direcliun, aud this it very
material : you see, it meiitiona some confu-
sioDs thai hare ariseji in respect to the ri-gula-
tioua made befort: in 175f : that it may be
proper ibr the goveruor to emleavnur to make
the iuhabilanis aensible of the great happiness
they eujoy uuder the king's proieciioti and go-
vernment, and to shew them ihnt they have not
only at all litnea been tieatrd wiih justice and
equity, but with lenity: that ihe increase uf
richea amon^nt them is iiwing, aniongsi uiher
ihiugn, to Ihe great sums of money cuuatantly
circulated from the pay of the king's furcet,
and Iroiii the nuoalier of foreigner* now ael*
tied amoDg lliem on account of their trade:
and nka the tmaoaiUD uf thrir trade, ibej
Iwing permilled 10 carry on coiumerte in lika
mauner with Ihe real of bis inajeiiij'B Biiiisli
aubjects : unil that it is therefore rxprcted. iluit
they slivuU, in reluru for m many ([real and

103] H GEOltGE III. Actionfar False Jmpritonment^

[104

rm) lH*nf flta, most hetrtily tnd effcctnally con-
cur nitli hill miyMty'g gofernor in any thinff
litf nIiuII |in)|ioiie for his m«j(*iity'f Mff loe, anu
tho hihmI of ih« inland, and demean themseWea
a» iHH^mii* |(«i(mI mihjecla, &o. and it may not
bf improper fur Iho aaid gofemor Uierefore to
int'urm them of all their prifileftei. Gentle-
men, iihserve three arc founded upon the llih
artirio of the treaty conuludoil at Utieebt, on
Uie lath of July 1718; and that they cannot
lie euiiiled to any olher privilecei than those
Bi|;nilied therein. And for the uetter infomia-
li«in theiyofi tlmt they do faiy the said articles
before them, n coiiy whereof was annexed
thereunto ; by whitAi it appears, that they are
allow ihI to enjoy their Imuours and estates, and
havo the iVev use of the Ktmiaii catholic reli-
||i«m, aiHl that means shall be used to secure it
lo theiu so tVir as is sfp-eeable to the laws of
iSrest Urttain, whieh they still ciuitinue to en-
Joy without the hMi»t internipiion« end without
any fear w dread of the court of inquisition ;
and that at the senie time muv inform them,
that, hv the ancient laws of tlhis country, the
|Ni|»e*s bulb, vSee. ere not |K'nnittetl to he exe-
cuted in his maji*«t\*s doiuiui«*uft, nor any
|ieoallv levied or puinshmeut iul)icte«l under
•ttch Jecrersu without permi«iion ot* the crown
of Great Hriiaiu : and then it goes on nnd giTes
farther directionv with ivgani to the goTeruor^s
Mitbority, and ibe necessity of* thc«e persons
ibMneaninir tbeuiseWes cbeertully to the onler
Mf the c^veraor ; wbieb is the gof eramcnt and
coii^tkiuiion of ibai country. Now, gmtletnen,

C»u wr th«t in irjk3 soiue cansidenble rrfru-
tiMis wefv made, to explain, and in some re-
■yect* lo alter, the reflations wbieb bad been
lade m the \«ar irj^i. And awHber thing is
cieariv ot^wr^ed ; thai the tenor of all tbe in-
atruuietti* 1 bare ni«d some parts of to you,
lb«wenrtsuUtions neither in trCO.nMicb leisby
the e\plAiMl^H1 «4'ibem in ibesubM^ueni vear,
If^;^, with rt^nl to ibe ailorstioo, eouhl not

IhmmMv ev.row loihearravalot'Sl. I^illip*s.fbr [ goTerameoi oC' the blAad. be found cbts re*
Ibe jurats we^^ ihi^ pierMNw who wec« to make
Ibe Adkw«iK«a IB ibetr several muveffsiMk or
4Mrt\*ts« OC leffwiisivk a« thev anf caHe^. Naw,
M lae arrival ^' Sc k\itlttp**. ibenr were a«
jiirai» ai ait : <w«a^>(ueoilr, tbat wa.<« n^ W
Made b\ tbe ^v-^Hwr vrikvi ap^MMsar^ by ibe

rere^K bi wr^V. ua'V^^T, the muscsftipb.
owv cf lS« "li 'jre iff t3« jun» nuking ibe
mF. TaCM« ibe (onrrmpr wxi »? nukv ii hias-
Stftf . bai \»i lae* a.Mrwt mere jre ua Taraai.
TWrv V i:MKJ<r \*}: 2^ 9.* W Qoixvd ; and ibai
isw li><&i '. ' ytfrtvuix-* inre was 9iK sake* as m
%^ .%A:i t .Oil a •! iiMOder Of >e«*iiicc ^ia< a tfi«
WTwrt; ^.'f Si. l^i::;i>k tbai ». wjenr la^ firv
tWMi fr . u c^^ ctwr w-tf avK caaen >si laat. :t
^i(-)< anM ^.» liw i^HujQcici^w <#t :a« «e«uxer« er
tb« ^ifMiu^ a*l euMpic >e jiannM w«o voaK
poiuoi/tfK cie«i|iisn«ee. Fjt tin
MMr«i Fuftk«Qir«. when be w^r*

tion with regmrd to wine, particnlarly in tbb
amtal of 8t. Phillip's. That was aoon after
tbe order of council in 175S; 1 belieee k
was in 1753 or most likely was the begin*
nbg of the year 1754, that general Blakeoey
made the regulation I am now going to men-
tion to you. The mustastaph was an oflieer
there that did tbe office of jurat in the other
districts : be was appointed immediately by tbe
governor. The jurats in the other districta
were chosen annually by the people, in order
to avoid any partiahty, and to take care tbal
the mustastaph shall do h» duty regularly^
that the inhabitants that have wine to aell aball
aeil their wine by turns ; tbat all the people
within tbe arraval of St. Phillip'a aball aeU
their winea by turns ; for if they were at K«
berty all to sell their wine as fast as they could
sell it, that would, as I mentioned just now,
tend to the inioxicatinn of tbe soldiers, and In
the ruin of the island. And the way tbat was
aiipointed bv general Blakeney in tbe year
1754 was, t'bat they alioold ballot, or cast Iota,
for turns ; and then the several people tbat bad
the lots to wll, should sell at an aflforatioo act-
tied by tbe mustastaph, at such a given time.
Tlien'the others shall come to their turn, aa
hit I lotted ifur ; so tbat every one, in tbe conne
of his turn, taking tbe chance of tbe bellel,
will sell his wine at or under, if be picaaed, tbe
afforation price, during the time apecifled.
This was a regulation governor Bhkeaey
made upon the order of council. Tbe peopw
of that district were all very well pleased, and
things went no in very good order. Tbe pe^
pie were glad to be so regulated. Tbis bon^
approved of', aad consequently being foond hf
expefience to be a wery good regulaiMi,
and to answer all tbe good ends of geveia-
sent, it was coaiinu^ during all ibe re-
mainder of tbe time tbat general BUbeaey
was governor of tbe isUnd of M.i
Wben irsveviior Jobosion snccecded

ifvUiwo, and tbe i:dand in very gooil order ami
iraB«iui!!ity. He found tbe regulaiien bad aa-
swened ali the good ends propped by it.
continued ibe rvgiLaiioa donng alt tbe
tbat be wfts governor oc tbe Htand. In
wiwation tbe' Hfaad w«» t^^nad by
Mestvn, ibe ervsenc deMdani. when be
ceede'd Mr J Weston to tbe gwermmcnc em iIk
iad of Mifvu^ 176ci« now five yt%n ;
preveni go««TTMr liwad ^t jWH as r>*erwie J<
bae hmad i before, and woaen
cescmony m ir,-* wvaKmb of ^^etMrai Bmk»-
sev. u weiL A^ -SE tjie cv«er«o9«a; rrvn wk«ii
be -^-mvvi a 9 :ri«rk~ Ic tMc ■)««« SfCN^ved
?f -a Eaic*4csa. invl w« aooriveii «ii'' »v tk< m*
llOiKaa^ clipnr. inis Mjitfr^iunk I; answered
la CM fMd eoiis prooueiri »y it. 1: ir idied
^eoof. «WDM<i«iaty. jou boruoav in tii« ulnnd^
wajnii hod seen mun ^ sedicimii ami *ha^mmm
•rder ta iTj^ csiiiia.

Fabrigai v. Mo-^i/n.
b Biy tnroi » ptriicular. There
are nor less, a» yoii will h« by-
I bistmilinintpnn of i lie order of
sit. which had been presoribed, yon
_J*1TJ4, bikI cnntinoeil tU tlie lime duwo,
MttrrollinK spirit of the plHinlilT ihouglit
^r td Irrrak lfarout;h bM onlvr, G«ntle-
», < «ilJ be lime oow Tor me tu lake nullce,
tl M>e to far gone inlo ibe general Uisl'Ty,
i<B«b«r (ircmaMance, nhich is nniorioiis lo
M^smllemcn nho have been «eUlt»l in lliat
ri«L M wcl) ][OTt>ru<>T« i« llie n\\rt mJIItBry
■AwLu lh>l liBve been Ihere, llisE the native
iMaiimiifriinrr-i are hut ill afl'ected lo Ihe
li(Ui, aai to >be EiigUsli ga*emiaeDt. It
irM Mch ta be wondereil at. Tbey are the
hiimiiiilii iimiirr'-| '- TItey cuoBiiler Spain
>|W cBunlry to which tbey iiught nalurally

■ tMtf; and it is not at all In be wondered

■ ikMMse people are not well itlaimsed lo Ihe
Eaftah, wha Ihcy consider as Iheir coiiqnerors.
Itfnw inattDce of that happened at Ihe lime
rfkTiBnHttn of Minorca liy the French,
lAn Ifcc French took it, which I helierewaa
a tm yf«r 1T36, the beginniog of last war :
■1 >1 b t«ry nn^nlar ihst hai-iMy a Miiinrquin
MA ima in rfelpnee of the ialand against ibe
hachi th«H*roDij^t prouf in the world thai
taj were »cry well pivased at Ihe eouiilrj l>e-
^ wmled trom the liunda ot (lie English.
tW Frnieh did take it, as we all very well
'»■>; bill, iliank God, we have Jl again. ,Or
d^ jtlinorqiiias in that islnail, perhaps Ihe
^■■if Rands BinfruUrly end mo«t eminenlly
Mr BHi wriilions, liirhultnl, and diisalisHeil
i%il t« <t>e crunn ofGreai Itrilain, that is
*kibaad ta lUe hi land of Minorca. Gentle-
te.W B, nr clmse)! to be, called for Ibis |iur-
^••a patriot of Minorca. Now patriotism
'iikry pretty thing among oureelres, and
waviuuch t» it; we owe our liberties lo it:

livohuiald have bm little tu value, and per-
^ •« sbciuld have but little of ihe liheny we
Waiftfy were it ncil fur our trade. And for
k«kc of oar trade it is not {it we should en-
MtgT pBtriiitiaai iii Minorca; for it is there
iWMiiewf'Hir trade, and lliere is an end to
WMde in ttw Mediterranean if it goes lliere.
tHbn« il li very well ; for the body of ihe
Mleof ibU country they will have tt: Ibe^-
L>r ^nnandeil ilt and id conseqiir-nce of their
atmii they baveenjoyed liberty, which tliey
•d) TOotmiw to pMlerily ; and it i* not in Ihe
T of i1ii« tjiivertiment to deprive them of
B4it Ihev will lake care of all our con-
fast* afaroad. U'lhiit spirit prevailed in Mi-
■■na, the ciinaM|neiice ofit vtauld he the loss
rfihsf CKMinirv, and of course our Medilerra-
Ma itmIe. We should be lorry lo tet alt our
ihrai free in our plantations. Gcnilemen,
kvii^ nonr ironbled you so far in general con-
eoweihcUw, tbuailUBlinn, and govern men I,
sfMia talaMi, and giten vou a hint loo of Ibe
tpK of Ibe ptaiatiir, which I don't wish lo
MhE the leaM impression upon you, unless
e d1' facU, which we shall produce,
' p ujion j'ou ; pre me leare to

A. D. 177S. [106

end to (he particular circumitaDces which
f,-,^ rise lo the mailer now eomplnined of.
The plain I iff, Pabrigas, whs aDHtivenf ihelnnn
of St. Phillip's, and within ihe arraval of St.
Phillip's, and conseiiuenily under the imnie>
diale eye of Ihe governor himself, as he was
within that district which is regulated by ihe
muslaslaph. In July ITTl he thought proper
to present a petition to §;ovemor Mosiyn, the
del'endaul, in this form : " fjhewelh, Ihai your
petitioner has now by him twelve casks of wine
of tlie produce of his own vineyards, without
having purchased so laucb as a gtape of any
other person, of which he has not sold a drop,
when several niher inhabitants of Ihe town have
>ld all (heirs, as well from the produce of their
wn vineyards, as what they houi^ht lo make
profilby; and this with Mr. Allimnndo th«
luslaslaph's permit. That the petitioner, on
the asih instanl(July} applied to Mr. Alliraundo
for measures to sell wine by, of the rale of Iwd
duublers per quarter less ihan the afforalion
price, which would have raised aprofil to Ihe
troops and the poor inhabitants of St. Phillip's:
hut nntwithslandioff his demand was very rea-
sonable, anil conformable to the expre^ dispo-
siiion (direction I suppose he meant) of iha 6rst
article of his mnJEsly's regulations of 1763, re-
gulating ihis island, where it iseipressly men-
tioned that the iuhabilanis shall always be per-
iniilcd to sell at Ibe price of the aRbration, or
noderit; Mr. Allimnndo refused his petiliOD,
telling htm that he would not buy his wine :
and that this is not only against ihe reason and
justice of the public, and the garrison of 8L
Phillip's, but also contrary to his majesty's or.
ders in the said refrnlalioD :" aud he menlions
that the mustastaph had made (ifiy casks of
wine, and sold ihem. Now, gentlemen, two
or three nbservalions occur, before we go any
further. In the firsl place. Ibis gentleman, if
I may call him so. Ibis Pabrigas, goes upon Ihe
idpa of the regulation of 1752 bring disan-
nulled. In the second place, lie goes upon
Ihf idea, that Ihe nnler thai was made of 17S3,
was uiiiversnt over all the island, without dia-
tinclion of this district in Ihe arravalof !4I. Phil-
lip's, in bath which you see he was mistaken.
Annther thing, which dou't slrlke so imme-
diately from what I have read, and yet here
give roe leave lo lake notice of it — il is art-
fully ihmwninlo this petition, as if the good
of ihr garrison was very much concern^ io
his having his petition granted. And, gen-
tlemeo, I do assert, and shnll be juslitied in
Ihe asseriiiin, I dure say, by your opinion,
before 1 have dnne, or at least before Ihe evi-
dence is gone through , that his design, from ilia
beginning lo the end of it, was la stir up sedi-
dilinn and mutiny ; and amongst Ihe resl, par-
licnlarly to pniot 10 Ihe passions and inclhiations
of the soldiers of the garrison lo lake his part
QgainsI the governor. This petition being pre*
seiiled to Ihe governor, the governor called
upon Mr. Allimundo to give an answer to tbia
man: for you see be complained, ihsl he,
fabrigas, had not ibe permuaioik to sell bw

107J

14 6E0K0E III.

Aaionjbr False Imprisonment'^

[108

own wiae, Allimaiido havinif refosed him the
measure by which be should sell it ; and in the
next place, that Allimundo himself had sold bis
wine. Allimundo did gi?e an answer to this ;
for the Koremor, willing to serre ever^ body.
And to act with the most impartial justice, and
being uneasy himself, that any Minormiin
should be uneasy ; for the uneasiness of a Mi-
Dor(|uin perhaps diffuses itself further than a
particular man, and is a fit matter to be at-
tended to by government ; he called upon Alli-
mundo to explain this matter. Allimundo
ga?e a full and clear answer to the matter ;
and stated in tliat answer, that Fabrigas's com-
plaint was, because his turn for selling wine
liad not come, according to the lots f men-
tioned just now, and that was the only reason
why be had not j^et sold a drop ; for no man
ODuld oell a drop, till by balloting his time was
€ome : so that rabri^ bad nothing to com-
plain of. But he insists^ that no man ought
to be bound bv the lots, but that every man
bad a right, by the regulation of 1752, not
taking notice of the regulation since that, but
that any man might sell under the afforation
price: therefore be, offering to sell under the
afforation price, ought to be permitted to sell
his wine without waiting for ballotting. He
was mistaken here: first, because that order of
1759, had been rescinded, and was not the
iHnding order : second, that be lived in a dis-
trict, where it was not to be regulated by
jorlt8« but by order of the governor : thirdly,
that the regniation which had been obtained in
the former governor's time had been the way
1 have represented to yon : in all which parti-
cular heads he was grosly mistaken ; and
therefore he had no cause or complaint that he
bad not sold any of his wine, his time for sale
being not yet arrived, according to the regula-
tion of the lots. With regard to the other part
of the complaint, that Allimuudo sold his wine ;
Allimundo freely insisted, that he had a right
to do so. He claimed a right which had been
enjoyed by all his predecessors, and which he
could not, without an order from the governor,
depart from, not only for his own sake, but for
the rake of his successors ; that he had a right
to sell his own wine without resorting to the
lots, and that he had not bought any wine, but
■old his own wine. This answer Being given
by Allimundo to the governor, the governor
upon that sent word to the plaintiff, that he had
eoquired (for he had not taken Allimundo's
word for it, but had enquired) into the matter,
and found what Allimundo had done was right,
and aflbrded no cause of complaint. This was
aome time in July. Upon tbe 11th of August,
ibis Fabrigas thought proper to prefer another
petition in these words, *< 1 had the honour to
present a memorial to your excellency, sbew-
mg, the transgressing and not observing in
the said town two regulations given upon the
S8th of May 1758, by bis Britennia ma-
jeaty [still adhering to the order of 1759, as
<f tbm had been no sabaequent order] that
te iababilaiit ahould ha pemittad to tall bit

fruit at the fixed price, the afforation, or under i
secondly, that no commander, judge, or of«
ficer, be allowed to have any traffic, bargain,
or so forth : [It cites a great deal of this order,
and then he takes notice] that Allimundo, who
does tbe functions of mustastaph, bought
grapes and made wine. And then he offers to
sell to the inhabitants in the garrison of Hi.
Phillip's, twelve casks of wioe that he has got
by htm of his own vineyard's produce, at two
doublers less than the ordinary afforation and
fixed price. The petitioner has applied several
times to your secretary's office for your excel-
lency's decree [that is, for his answer]. Your
secretary told your petitioner verbally, that
your excellency was ratisfied with the answer
given by Allimundo ; at ^hicli he is surprised,
as he is ready to prove, in a judicial way, the
truth thereof." [Then he prays the governor
to give his decree at the foot of the ntemorial,
and to have tbe satisfaction to justify himself,
and to prove his charges against Allimundo.]

Gentlemen, this second petition being pre*
sented to tbe governor upon the 16th of Au-
gust, which was A^e days after the date of it,
governor Mosty n took the only possible step for
a man in bis situation to take, consistent with
wisdom and justice ; and that is, to refer both
tbe petitions, or memorials, as well the former
as tbe second, to the proper officers of justice,
for their determination. Accordingly he did
refer not only the two petitions, but also tbe
answer or justification of Allimundo. He re-
ferred all these papers to the only proper oflioer
there to i;efer this matter to, namely, the soli-
citor general of tbe island, and Dr. Markadai,
the first law officer, in order that they miglit
enquire into the matter of complaint, and im-
part their opinions. They made their report
upon the 31st of August to the governor.
Now you will see what were the opinions of
the lawyers of the island at that very time, that
the orders of his majesty in council, of tha
year 1752, relative to the sale of winf, had never
been executed in the suburbs of tbe castle of
St. Phillip's. You see it is just what 1 told
you at first ; that is, the arraval of 8t. Phillip's,
that order of 1759, was never understood to
extend to that particular district, which is under
the immediate government of the governor
himself, that is the place where this man dwelt.
Then they ny, secondly, that the custom ob-
served in the suburbs, upon the sale of the
wines of the inhabitants, has been, that the
mustastaph had the direction of distributinsf
tbe measures among those inhabitants, whicn
was continued till some years past; when lieu-
tenant general James Johnston, lieutenant go-
vernor of the island, in order to avoid com-
plaints, formed a regulation, dividing the raid
suburbs iuto four quarters, and onlered that
the wine should be sold by such of the inha-
bitants unto whom it should fall (1 see I am
mistaken ; it was introduced, I see, by fo^
vemor Johnston), which cegukition at thiatune
exists. Tbe third is, that Antonio AUimimda
waa daded miistaatifb. Foiirtbly» tbat AlU*

Tahrigat w. Molfyn.
1, JiMqih Nelo. U«lph Preter, and Jo-
fcLnlie, who aie tlie iirnniiB ihai have exe~
n (be office nt niusUiiiapli iif llie uid
lAi i<ir soieral yenn |i»l, b«ve beeo oc-
oa^N^MparchMetpvpc* furmak'mg w'met
-4a w the iltfcace of Allimunilo. Tben

tnuliff

t office
. .JHke wine from grapes bnui^hl
tj Itannaeltes. And Ihen lastly, dial lite
MkiNf «f Mine from grapes boujjtit bail nnt
tna rvckoiMil an illicit iraflic, nor iDcoin-
pMt •riih ihe ollice of baillfl', jurat, musta-
«ifb. »mA wo foiili. Now Bee <*liai lueilioj
IMM •fficen look to be InronDed of this matter,
» •»*«■ W give the answer to the go»tinor.
" TbM, Mt, n wbat in abedieace lo your excel-
Inn'* ontor, we can inform yoo of, ■cconJing
M aut a|ipeani u result from the ileclaralions
wbieb we have received upon uatli from tbe
pnfcraat pvnoru, wbose original depositious
raanin atMOK ibc arcliivpi of tbe royal go-
Nnnunl." These two observations naturally
•eenr. In the Bret place, that tl>e governor
ImIi tke «Dty method he could, uuon the
••■litoiiit of this mia, to refer it to the only
tntwrnScrr of tbe island, upou whose report
MmfbCikpeiHl, with Ibe power of cjcamina-
(an its till* officer, of all praper persons upon
a<fc, tot Ibcir iDformatiou. That upon the re-
Mdt if Ott repnri of tbia oiGcer, it appears that
IkemapUinl uj' Pabrij^aa was groundless. It
9m gi«UDj|e«s both wilb ri^pecl to bis claim
ti (iif ht to wll out of the order, by ca^lin^ of
hm: ii trai ^rouodlea*, likewise, wllb regard
ti lia (MBiilaint a|;ain8l Allimundo, for having
■Uvw lumoelf. Fur ihey aay that the re-
pMas maile in 1753, had never applied to
•W tmxtx «f 8t, Phillip'*, that is, the arrstal
ti Ik. t'liilli|>'s. Tliey tay, secondly, that
Mk(B tlMi iliatrici lliey bud alwuyg aolil their
>ae by IvU. And ihry nay, thirdly, that ibe
^■Uataph, and llie other officers that do fix
thaaAvml'iun, liatealwavi! lold wine the way
tat AUliniioihi lis*. This was the answer
Ihal was given, and this the re|<ort that was
Itade !■ tbe {(ovcruor, io consequence of his
Inin^ rerrvred lo tbem the two petitions of
PsirifM. M well a* the aiiswrr of Allimuada
•* (far pHit»D. Of-ntlemrn, they alWrwards
aa^ a«atber rejMri ; for this, I lohl you, wu
» IIM 31*4 of August. They inaile amilber
>rf»ri luur ilayi slier Upon the 4th of Seplem'
fcn Ibi-y (five an account, for the governor
>i* tery 'tniniui lo know in what manner
^nt teatltnwn bail proceeded. (You see
to«* i* a ycneral alliitjoii al the fool of the
npavl, to ibfir haviut; examined proper per-
>«• aoAD oaih.) The gniernor was exceeil-
■;lj Jraimua to know in wbol order these
-iWiBFD b*d prorerdeil, to lee wbelher all
■■I* care had been taken to avoid ouuiplaiol,
A frum *n rarnett dmre he bud, that all
-i.-i*r% ut oumiilainl mij'ht subside, that there
M b« one ■luuerul riilo of good goveru-
■ prvaarvrd aiitun^ Ibe Alinoriiuiusi and
_*lBMe^i*mtiit ba answerable to lb* crown

A. D. 177S.

of Great Britain for any improper coniluct.
" We,upon tbesBOJeday.thc I6lh, that is iba
day of relerence, we wrote lo the said Allimun-
do and Fabrigaa, citing them by our coniinis*
sion, and orderini; lliem to appear upon lb*
aOlb ; and in ohMlieoce to which tbey having
appeared, we again ordered them to appear on
the 33d following with Ibeir proofs and docu-
menls. At their appearing on the 23d, we de-
manded of Ibem Ibeir proofs and justification ;
when Fabrigas answered, lie did uot intend
to enter into the same, till he had obtained the
decree nf the 3d memorial, that is, the answer
of the gorerour in writing. On the 26th, Fa-
brigas was convoked in your excellency's of-
fice, where it was asked, what action it was ha
inteuded by these memorials against Allimundo,
whether civ d or criminal P And having time
given him to answer, he replied, a civil one;
all which appears hy the acts to which we re-
fer. As the ssid Fabrigas hath not this day
represented before us any proof by way of jut -
lificBtion of his ssid two memorials, wu there-
fore, for (his reesuu, have the honour to submit
the same to the conaideration of yuur excel-
lency's wisdom, ibai you may not impute to
us the least omission of Ibe liTely desire we
have toexecule the orders of your excellency."
This is dated the 41b of Septemlier. Upon
this order, this report that was tben made
upon the 41b nf September, which gave a
clear satisfaction that every thing bad been
done with proper care and caution to pre-
vent any complaint, Ibis Fabrigas presented a
third petition or memorial. I call Ibem peti-
tions, remonstrances — I don't know what nam*
lo call them hy, but still they have Ibe title of
a petition — he called it Ibe humble pelilion —
and in this Ihird, as in the second, be had com-
plained of Allimundo. Now here is a reraon-
Btrance against the judges :

That " whereas tbe judges delegated bjr

yunr excellency"

- Court. Of what dlU is this?

^eri-Davi). I haveooprecisedatetolt. "Tba
judges have denied bim a communication oflba
answer t;iveo by Allimundo, who does the func-
tions of mustaslaph of St. Phillip's: prays you
will be pleased to order tbe judges to receive tba
witnesses which are produced lo juslily tba
ai tides." And then follows upon this, no
less than twelve articles of impeachment, a* '
it were ; arliclcB upon which the witnesses
were produced to prove some facts committed
by Allimundo against his majesty's orders,
and to prove some injustice done by Alli<
rnuodo against the Minorquins inhabiling ibe
town of St. Phillip's, and against bia majesty's
■ronps of that garrison. Then followit a siring
of twelve articles, which 1 don't mean to read
to you now : you will have them by-and-by
in due order. Then he siieaks of the prices of
meat, fish and several olher things, all which
he complained are not well dune ; and there i%
a general complaint throughout the govem-
ment of all tbe otficers, that all the ftlinorquina
are ill-uwd by the misconduct, mitruk and

Ill]

li GEORGE III.

Action fir Fake Imprisonment"

[lis

mnmaDBgnement, by the under offioen of the
garrtsoo. Noir, gentlemeD, you would have
•apposed, if governor Mostyii bad been, what
the world knows be is not, a rash man, be
might, perhaps, have very well justified some
ceosure at Itast, of what sort is another ques-
tion, upon the coodnct of Mr. Fabrigas, whose
oonduct points very strongly to sedition. For
consider where we are speaking of. We are
not talking of the city of London ; we are
not talking of a town in Etiflfland; but are
talking of the town of St. Phillip's, just at the
Ibot OT the glacis of the citadel : and this stir-
ring up sedition amon^ the Minorquins, who
were already too ill disposed to government.
But governor Mostyn did act in this business
with that candour and hamanity, that delibera-
tion and wisdom, for which his character is so
eminent. And therefore, after this third me-
morial and articles, the next step he took was
lo take farther advice of all the superior law
officers and magistrates of the island, that is,
on the 5th of September, 1771. And, gentle-
men, he ordered his secretary to write a letter
to doctor Markadal, (I shajl not pronounce
their names well) the solicitor general and
the other persons ; and, upon that, they gave
this answer. He sent the 5th for their opi-
nion ; on the 10th they gave their answer.

•*We received your excellency's letter of
the 5th instant, with twelve articles exhibited
by Anthonia Fabriflras annexed. In answer
to the contents of the said letter, it appears to
as, that in sundry of the said articles he men-
tions and represents injuries or iin|>oBition8
upon the troops quartered in St. Phillip's,
which, if divulged among them, might occa-
sion tumults and disonlers, and also raise mur-
murings against their proper superiors, of
whom they are suspicious, and hove not a due
regard to their own advantage : from which it
appears to us, pernicious consequences may
arise in military discipline. This our opinion
we submit to your excellency."

Upon the receipt of this letter, still the go-
vernor was determined there should be no
person unasked ; therefore he, upon the receipt
of this letter, sent it with Fabrigas^s answer to
the assesseur criminal, who sits as the assist-
ant to the governor in trying ofcivilor criminal
causes, the great judge of the island under the
governor: he sent to him for the sanction of
nif opinion upon it. The answer is wrote to
the secretary of the governor, and, ' having
examined all the said papers, it appears to me,
that the opinion of the siid gentlemen is very
learned and just.' So that you see he concurs
entirely in opinion with those other gentlemen
that had made the report that 1 read to you just
now. Gentle<nen, when this was done, then
and not till then, the governor, the defendant,

feneral Mostyn, sent an answer in form to
abrigas; and I flatter myself that you and
every one who hears this, must be of opinion,
that the governor acted with all possible cau-
tion in this business. He writes, therefore,
Ihis answer \ for you set the other had pressed

for an answer in writing, and would have it in
a great hurry ; bat, however, the ^vemor
would not give an answer till he had informed
his understanding upon the subject, by all that
could give him information and advice. ** Un-
derstanding that Antonio Alexander Alhmundo
bath acted in olie^lience to the directions of his
superiors, as in the manner practised by hit
predecessors in the said suburbs, by those that
held the office before him, as it appears to us
(mentioning their names) upon a charge set
forth in the representations made by Fabrigas,
and upon the other part by the said petition of
the people there to attend to the regulation made
by governor Johnston [I should have tokl yon,
that all the Minorquins there prayed it miffht
be continued] for which cause it is not regular
to receive witnesses to justify the difierent ar*
tides exhibited by Fabrigas, some of which
teem' to tend to disturb the public tranquillity,
in prejudice of his majesty's service : [now,
^ntlemen, remark this] notwithstanding which
if Antonio Fabrigas is sufficiently entitled to
pretend, that Antonio Allimundo hath commit-
ted any crime or misdemeanor, he is to apply to
the royal governor's court, aud there make hit
complaint in the usual form ; where he wiU
have justice done him according to law, that
is, ** according to the law of the island." Now,
any mortal would suppose that Fabrigas, if he
was not possessed of a most malignant and tui^
bulent spirit, woold hare acquiesced in thit»
and taken such measures as, accfirding to the
law and constitution of the island, were open
to him, and not have plagued and teazed the
governor with reiterated remonstrances and
complaints in matters which were out of hit
own principal power to relieve, if there wat
any cause of complaint ; though, by the way,
the governor had the strongest reason to sup-
l»ose he had no cause ofcomplaint. But it wat
the determination of this man to drive home
every thing possible to the governor, and to tel
up an opposition of the Minorquins subject to
his civil government, and the garrison subject
to his military guvernment. The unavoidable
consequence of this would have been ihe total
loss of this island, and infinite bloo«1shcd, which
must have ensued upon the revolt of this island.
However, the man still uses a great many
threats, which you will have a particular ac-
count of by-and-hy. The governor thought
proper on this, (since yon find all which had
been done, and which this Fabrigas complained
of, was the pursuing the regulations which had
been made l>y governor Joliuston — you will be
amazed, perha{>8, at my telling you — it is the
strongest proof of the lenity and moderation of
the governor that, perhaps, can ever be ima-
gined) in order to see whether that regulatioa
was a rii^ht one, and ou^-ltt still to be cuntinned,
the governor summoned a meeting of the inha-
bitants, even Minorquins, the inhabitants of thit
district, in order to take their sense of the so-
vemor's regulation, to sell by lots, or wlieiner
that regulation should be abolbhed, and that he,
or any person within the district, mty be at

Fabrigat v, Muili/n.
I wise H Tut u Otty cm anUer
in |iriw. Ill onter lo lisre their full
! nikltvr, he look the utmoKl ciu-
MK iloclor Markadal anil
tiled all ihe iohabiUDU;
e ibey nughx be at lull leisure from
>cvanl(, (fur it »■« about the time of
, ifnm) that xhey might le ut full leinure
k allnid Bad meet logcllicr, they apjioioted
■* -' - - ■ aSuiiday,

abatwaftill meeting. Mr. FabrigBs,iii
tteMEBp lune, aaei nil ^aioa, (as if an e^tion
■w gBtBg ftrwaril) be u»e>l all imaginary
f»^» V> Itcl together at many people u he
CmM niMl«r to think wiili him, and lo have
■kit infulalian of the f;overtiur aboliEhed, aod
Aaltbe nmm he cumplained of might he put
a tad V, AnJ the matter he required eoforced :
taiOMb wu Ihe tenieur Ihe inhabitants, that
lkar« «m* ■ laojoriiy, I am told, olmoat tneniy
load*, of all the lUinorquius ivho attended
•fan ilul 8«0riay ; all uleaxed with what bad
hiMiknc by gofernor Juhostnn, and desinmi
ti CMlia»« 'ibal rvgiilation. They liiund it
■Ml bmefieiaJ to them<el*eii ; iliey found it
MMsded inlh lewt trouhk; they fimad it most
hr tbcir |itofil: ihey hII Were acainat their
(^■(rynaMi Palirii;a*, and all prayed tint the
■ ■■MUhiiunt innde by noveraor JnhntlOD, and
kid MBtionnl to that tiiue. raii,'ht tlill be used
N^coDUaaed withnulsiiy ulteraliou. Fabrigai
•■•ow Trty much diualiefieil. Now I will
mI joa a it'w abjection. All this it iinlawrul.
hoBw ii ■*■!■ uo a (Sunday, anil the tense of
tm (nylr laiten upon • Sunday is no sense at
^; tititihrr inmanre oflhe turbnleiiceOf his
A^Mkm ! all vai nroni; ; nud, at the name
M, * threat thai hr would now prefer a peti
ba. aad ke wmjld luke care llwl there should
W !■■ tanodred men aimed at hia heels! oow
Itf ar nk any man (hot bears me, whut the
fBMHir wa* to do? The goTermir (whose
qMwMiwt Inferior to his other qualilieslhat
■ir Wf th* tliararler of a gi ntlemaii and a
aMm}»W»wl to beio ffightrned. He wai a
•■■((tM prrvonal tear ; and ■ AliaonjMin ap-
pviiiil «t llie head of t-to hunilred people
«■■!, Ih«u|t)i it i* irrious, and deserves consi-
taawa^bxwei'rr, ilie governor's spirit iths
■■b, Ue Jul Hut coiiToke Hoy force in order to
■^ fbii* : kul bo look a Tory wise step ; and
kn «■• (for the upki dny wa» the time of this
^■nvdiua h« had cauM lo apprehend,) he
|ti« ■• latitation l<i Ihe comuiiodiiig nlKcers
■r Ike 4dT«rrot >«Kiii>enli to meet him next
^mwtmg % mhI if ih' te Itud been any force at
llr herb af Mr. Fobritcax, the comuinnding
ittMfa beiW Ibni .ii the honse, it would not
Mvapaiiy liiuir, iiFrhapa, to summon iheir
tan M trprt it : but lio wnuld not sumtiion
fta hetr •> Ihr laland any farther than I tell
j-^. Ai ihi' liiii« llii* pctilioo irns lo be pre-
> -MrJ by t'«briu>u <*ith two hundred itieo at
w«ti — 1 inittake ; lb* |ii>litiaa vras then
-Tiaiil. aad hc WOUU COOM for Ul UUWtr

A. D. 1779.
(he next morning with a fore« of 300 men at
his heela — the govero'ir thought proper to ask
the advice of the officers who attended there,
nhal ought to be done with this man, and
what wan lit to be done ? Every on« of tha
officers who allended upon the occasion con-
curred in the opinion — and it was a matter
alwut wbich I think there iwuld not be two
npiiiioQs, — that nothing was safe lu he done,
b<it iuimediaiely laying hold of this man tha
first opportunity, and sending him out of the
island. And he did so. Theru is the cniu-
plainl. Now, gentlemen, I have let you into
tbe whole history why this was dooe that Fa-
brigas coiDplaios of ; why Fahrigas was kept
(ilose, OS he complains ol. A mau that threat-
ened an insurrection in the isbnd, it surely
would be imprudent io the governor la luiTer
any of his friends io the inlaDil lo have access to
him : general Moityn therr lore sent him off as
soon as possihle, which I believe was in li)ur or
live days, into Spain, with a prohibition to re-
turn to the island again within the cuune of a
year. Hut all this, say they, this is Ivranoica),
this is arbitrary ; this u w hut English ifotem-
Rient, anil English laws, and an Eiigli.'in court
of jiietice cannot bear, tiay Ihey, it is a very
improper behnvicmr io governor ftloslyn. aoil
onghl lo be Ihe aiilj|ect, the mailer of a civit
action : Mr, Pabrigas therefore does very right
to lake a voyage over to England, lo coma
here lo Guildhall, and take Ilie senne of an
English jury uprin governor Moilyii's beha-
viour. Lei me ubserve lo you, ihis is uol »
□uvel proceeding; for thougfi, very liirtunateljr
for governor Hostyn, it is the liriil lime that ha
lias had ati occasion lo behave in tliis way, and
to proceed in this particular manner ; yf I liir-
raer goveriiorti of Ihis istatid, upiin much lesa
occasions and emergencies ihan this, have dona
the very like thing. Do not be aHloniahcd.
geollemen, nor lei it fright you, when I tell
you, that the guvernor hai an obioliile right ti»
do it, and is accuuulable to nobudy but tlia
privy 'Council. The governmeot of that l^lauj
IS, io many respects, an arbiirary government,
and as desjiotic, io many instances, as any of
tbe governroeola in Aaia, |iarticnr<rty in the
part now in queition ; and |el governor Alos-
tjD would Iw »orry, for his own character'a
sake, if it was in his power, to take any legal
advLiniagei coDCcniing tbe impropriety of
bringing ihe action here in Englund. Hia
character calls upnn himf which is lo him the
Srst of all considerations, to explain his con-
duct in the fullest manner possilile. A general
acquittal of liiffl upon the idea that the law
won't punish him, would be but a poor s&lis-
faciioii IO governor Moslyn, ivbo is charged in
this action with having exercised a tyrannical
power, tietilleineu, the general tenor of the
trenerat's behaviour, from the time of hia being
first appointed lo this government live yeura
Dgo, to the moment belast left the ialarnl, has
been to preserve and to maintain onler and good
govecnnient, wiihont a wish, or rather with an
Bblioneute, to opprcissny one man Ibat is un^c

115]

U GEORGE III.

Action Jbr Fahe Imprisonment-^

Ciia

his gorernment there: least of all could he
€ver wish to oppress or injure this maD, too
incousiilerable iu bis own particular private
•tatinn of iii'e, too remote from a counexion or
acquaintauce with the governor, for him to
have made him the object of vindictive— 1
voii'tcall it justice, but of any vengeance or
resentment upon any occasion whatsoever.
When the man made a complaint, he wished
to enquire into the grounds of it ; aud when he
found it was groundless, aud the man reiterated
tlie complaint, however he might be teazed by
this reiterated complaint, (for it is grievous and
troublesome to a man to be teaz^ with new
remonstrances and petitions, when he sees the
impropriety aud impossibility of granting what
M requested) still takes all possible occasion to
enquire into the grounds of the complaint, to
answer the complaint. But when, after every
means had been tried, the man threatens the
dissolution and destruction of government in
the island, it became bis duty then to treat this
with some seriousness : and yet for the general
^^d of the island he did it, never complaining
of these two hundred men that were to be arm-
ed, only laying hold of the man himself, and,
as soon as a ship could be got, to send him out
of the island. And now governor Nostyn is
called upon in an action. The laws of a foreign
country, gentlemen, are matters of fart here;
and it is very well worthy consideration — it is
very well worthy of consideration indeed (I do
Dot mean to trooble you with a discussion of
that question ; but since his lordship has hinted
about it, it is very well worthy of consideration)
whether such conduct, upon such occasions, in
auch a place, can be the subject of litigation in
a court of justice in England; it is very well
deserving of consideration. I know very well,
upon a former occasion, when an action wua
brought against the governor of the island of
BarlKidoes, by a man who succeeded in his
absence to the government, without any parti-
cular aj^pointment so to do, and having been
guilty, in the governor's absence, of some mal-
practice, (he was ap|)oiuted by him, but had
not t(K>k the oath) there was an action iu that
case brought against the governor for some
proceedings against his deputy, as was the
subject of an action, and there was judgment
in that case given for the plaintifi' ; but a writ
of error being brought, and that beincf removed
afterwards to the House of Lords, that judg-
ment was reversed. As well as 1 recollect it,
one of the chief grounds iubistcd upon on the
part of the defendant was, that being a matter
abroad,— (for that it was upon de^Hurrer to a
plea)— that being upon a matter abroad, it was
not cognizable by the courts of justice in Eng-
land. In answer to that, it was insisted —

Court, Was it not the main question in that
trial, whether the council of state, or the go*
f eroor of Barbadocs, had a power to commit ?

8erj. Duvif, That was a question. I have
■ir Bartholomew Shower's parliamentary cases
Upon the table.

Ctmrt. I think the courts held they had no

power to commit : the House of Lords held
they had a power.

Serj. Davy. Your lordship will find the par*
ticular reason of the reversi(»n of the judgment
is not stated, but only that the judgment waa
reversed. But one of the particular reasons
was that the island might be governed by par-
ticular laws, and that he was not responsible
here for what he did there. To this it was an«
swered and insisted upon by the other side, that
they were governed by English laws; that
they were not a conquered country ; that thej
were inhabited by tlie subjects of the crown oif
Great Britain, who came of English or Briiau-
nic subjects, going from Great Britain to thai
country to reside and settle there, and were not
like the case of a conquered country. The
reason of it does not appear. Upon that re-
port, the House of Lords thought proper to
reverse the judgment. In the present case,
see how strong it is ! for every objection made
upon that case applies with double force here.
Suppose it comes to that question of law, will
not that question be of too great magnitude for
me to say a single sy lluble about it ? This that I
have now mentioned, and your lordship has
gone before me in what I was going tosav, is
a very important question of law indeed; a
very great question ; a question of the first
magnitude, and which will therefore deserve to
be discussed and determined by the highest
court of justice this kingdom is acquainted
with. It is a question of infinite difficulty and
great im|>ortance, with regard to the respon*
sibility of the governor in a conquered island,
with respect to their being amenable to foreign
sub^ts, with regard to being aooenable Tor
their conduct.

Serj. Glynn. They are the descendants oC
foreigners, all of them.

Sei]. Davy. 1 mean those that are bom in Ui*.
norca, that descend from the ancient inhabitants
of the island. They are subject to be governed
by whatever laws the king of Great Britain
shall think proper to impose upon them. The
king of Great Britain may, if he pleases, alter
his government of that island, and give what
laws he pleases under a general ratification ;
and they are all bound by it. I say, a discus*
sion of that question, as a question of law, is of
great magnitude. I do not mean to trouble
you with It. To be sure, it is too much for my
grasp ; it is too much perhaps lor the grasp of
any one man sitting in judgment, much more
for roc standing here as a counsel, who have no
judgment at all, only a duty i owe my client ;
and perhaps, and most probably, it n ill beaquea*
tion to be referred to the determination of the
court above. And you, at the same time, will
certainly, if you think nmper to find a special'
verdict in this cause, which I suppose you will,
you will do well to consider the subject with
regard to the damages, which we call contin*
gent damages ; it was therefore exceeding fit.-
to mention all those circumstances to you, not
only with regard to the matter of fact, but also .
tor your considivatioa with regard to th»,

libe

k. •»

117] Tabfigai v. Mosiyn.

^UMfCi. For iappo* (it is upon that ground
I mw aiMren you) rappoie the go? enior tnis-
fmktbe law apon this oocasion; suppose be
fns wrong, and ought not to ha?e proceeded
kiis way ; suppose that notwithstanding all
fbf spinloiis he had look, as well from the ciTii
in ttieir different departments, the law
•ad the aitcsieur judges, and so forth,
1 bT all the military officers, whom
bled together upon the threat of the
suppose, notwithstanding all
opinions, he ought, instead of doing
km did, rather to have kept this man a
, and brought him before some tribunal
tried : suppose that ought to be his con-
that therefore he did wrong, instead of
insprisoa the man immraiately, and
him, upon his own authority ; now to
W sore the assessment of damages b^ tou
■■St go upon that supposition. I think I
speak airiir upon the occasion : 1 mean in this
and aO other occasions to act with character :
I suppose that to be so : what mighty damages
s^fht, oo that occasion, to be giren against Uie
teteiuui ? He in that instance mistook the
fiae of his duty ; he acted as he thouffht for
dw best, lor the safety of the bland ; but he
acted sroctpitately. Why, let Mr. Fabrigas
er bis menos (for I do not know whether he is
in Ksgland himself or no), let them pnt one
•uesiisD to themselves to decide it. If (reneral
MsrtWB bad done the thin^, the not doing of
wlien they now complain of; if ffeueral
Hastyn bad brought this man to a trial, what
■ifbt liaTc been his fate? The least sorely
8Mld hare been that which he now complains
iC,laaishnient for a single year; for with re<
' W iho imprisonment, it is not an unusual
any country. Upon great and
occasions, it is not an unusual thing
fine a man for a few days, and debar him

0 of his friends : that is not an extra-
tbiog. But suppose in that he did

1 will suppose the whole to be wrong.
IVbeieiu is it wrong? It is wrong from a
Misapprehension of judgment, from a mistake:
m is wnmi^ merely in respect to mistake. It is
■St wroog from malice, from wilful wicked-
ness towards this man, from a tyrannical dis-
Miiioo, from a desire to oppress or hurt him.
If ibia bad been the case ; if the governor,
icspoctable as his character is, could for a mo-
be suspected to be capable of acting in

nanoer, from tyrannical, cruel, or wicked
vrs, be would hare done ill to call upon
to be bis advocate ; for though even in that
t 1 would discharge my duty towards htm,
I could not have spoke with cheerfulness for
But here 1 consider him, and the whole
of bis conduct bids me so to do, as a gen-
wiiling to discharge his duty to the
erawa ; to preserve this island, as it was his duty,
Is Um comoioawealth of England ; willing to
da ill that was good, right, and just, without
■lyvimkctive oaotave to this man, to whcm
be io a atrasiger. But upon this occasion the
r wUTpafdowttey if 1 take notice upon

A. D. 1778.

[118

this occasion, of what is too well known ewn
to be questioned, his general eood character.
And yet I have less need to ask his particular
pardon upon this occasion, because that gentle-
man from whom I received mv instructions,
the attorney in the cause, has nlled my brier
with, I think, not less than thirty of the first
names in this kingdom, who, I am told, are all
attending here, or within a moment's call from
this hall, some of the most respectable charac-
ters in this kingdom, some of the highest rank,
and gentlemen of the first character in this
kingdom, to tell vou that thev have at different
tiihes served under general fifostyn, and that
they do not know in all t^eir acquaintance, a
man of a more cool, dispassionate temper, a mail
of greater character, humanity, and justice,
then general Mostyn ; as celebrated for it tia
any man of any rank or of any degree of ho-
nour in the world ; and yet general Mostyn
must be supposed, in order to justify vindictive
or exemplary damages upou this occasion, must
be supposed to be actuated by motives which
his heart abhors, and which motives nevcfr
actuated his heart a moment in his life. I
leave it upon this idea, that if he has acted im-
properly m every step, yet, upon the idea of
Its being a mistake in general Mostyn, I appre-
hend tM plaintiff has no right to expect exem-
plary damages.

Serj. Burland, I suppose it is a fact ad-
mitted between us, that this is a conquered
island, ceded by the treaty of Utrecht?

Mr. Lee, Minorca was ceded to this crowft
by the 11th article of the treaty of UUrecht.

James Wright^ esq. sworn.
Examined by Serjeant Burland.

Q. You resided some years in Minorca f'-^
A, From about January 177 1, to the middle of
1772.

In what character? — As secretary to the
governor.

To Mr. Mostyn ?— Yes.

You know the division of the island, do you ?
—Yes.

What are the districts they are divided into?
—I believe originally five; but two are blended
together, that there now are but four.

Do you mean to include in one of these dis-
tricts the suburbs of the fort of St. Phillip's f
— ^They never do, when speaking of them ;
that is, extrajudicial of the common officer of
the island.

Under whose particular jurisdiction is that ? —
I always understood it to be under the direc-
tion of the governor.

What do you call that district ?— The arra-
val of St. Phillip's.

Are you sure you understood it to be distincfi
and separate from all the other districts ?—
Yes ; insomuch that I was always led to be-
lieve, and told, that no magistrate of Mahon,
which is the district next adjoining to it, ever
did go there, or could go there, to exercise any
sort of function, without leave had of the go^

i

119]

14 GEOROE Iir.

Ac^oHfir Falte Imprisonment—

[IfO

▼ernor ; and whenever there was oocasioii to
■end an V of them down there, the fort-major
received orders for their admission.

Are these laws varietl at any time, and by
what authority ? — ^The island is governed by
iBpanish laws,* subject to be raried by the go-
Ternor, with regard to all interior matters. A
proclamation of the governor is as binding
there to try a man upon a trespass, as any laws
whatsoever, subject to be varied by the order of
the governor ; not in respect to property, not
with ref^ard to mtum and tuum^ but with regard
to the internal police.

What do you mean by proclamation ?— That
if the governor issues a proclamation, and in-
flicts a penalty for the breach of it all over the
island, and if any person is guilty of the breach
of that proclamation, he is subject to the
penalty of it, and for want of payment is im-
prisoned.

1 suppose you mean they enforce an obedi-
ence to that proclamation by imprisonment ? —
There is there the chief justice criminal, and
Uie chief justice civil : both have their separate
courts. If the governor's proclamation is
broke with any penalty annexed to it of impri-
sonment or fine, the man is seized and brought
into that court : the proclamation it exhibited
a^nst hiia, and by that he if condemned to
cither fine or imprisonment, thougl) that prochi-
nation was made perhaps but the day before.

According as that proclamation afllects, whe-
ther a civil or criminal matter ?— I do not re-
collect any of a civil matter.

Court. W bat are the nature of the proclama-
tions yon are speaking of? — A. In all the me-
morials presented to toe governor, be issued an
order, that no memoriab or petitions, ^except
ibr mercy, should be presented to him without
l><^ng signed by an advocate admitted in the
tonrts.

Q. You mean governor Mostyn issued this ?
—4. yes.

Whether, though the Minorquins by the
treaty of Utrecht are governed by the Spanish
laws, yet whether our government here do in
ifact, or not, from time to time make alterations
mod regulations in those laws? — The king in
ooun'cil, upon all occasions of application to
them, issues out such orders as the case re-

auires, and they are recorded in the royal court
here, and are as binding as any laws what-
•oerer.

They are registered there, are they not ? —
Yes.

What do you call the royal court? — The
court of royal government is the criminal and
the civil court.

You know Mr. Fabrigas f — Perfectly well.

What is he in the islaod f — I was directed
by governor Mostyn, who was very much
tea2ed by his repeated applications, to enquire
what sort of a man he was.

* As to the laws which thoold prevail in a
fiOMuered country, see. the Cite M Ibe isliod
•fGrtMMla,a.p. 1774.

Firat, as to hia (joality in the island ; what
station is be?— His father holds some vioe-
yarda, very amall. He himself I believe ac-
tually, for his bread, labours and din and
prunes the vineyards, and talks and cbatteni
about politics perhaps five days out of six. It
has been repeatedly said, Mr. Fabrigas is a
man of property. I believe he had at that
time no property upon the earth. General
Mostyn ordered me to make enquiry, and that
was the result of it.

We know what the station of general Mostjfi
is ; that he was then and is now lieutenant-
governor of Minort'A ; that he is commander of
a regiment, and a man of family : what is hif
character as a man and as an officer ? Is he a
man of humanity ?— 1 believe as much so as it
is poHsible for a man to have ; that is, in my
opinion. I have seen much of him. I do not
believe there exists in the world a man of ten-
derer feelings, for any ill efiects that may be
produced from liim.

Is that his general character? — I believe
him to be much more so than common. I
think that is his comluct that will be found
upon every enquiry that can be made of him.

And it lias been so under your own know-
ledge ? — I am sure of it : 1 have had many
opportunities of seeing the working of it in a
very surprising manner.

Will you let us know as much as you do
know of this transaction between Mr. rabrigaa *
and the governor? — May I; refer to some
minutes I have here ?

Counsel. Yes.

Serj. Olynn. Did yon take them At the
time? — A. No; but all within three days.
1 hope I ahall be excused \\' I should make any
mistakes in respect to date. Mr. Fabrigae

S resented a memorial, 1 lielieve to myself, to be
elivered to governor Mostyn — that was the
dlst of July 1771— complaiuinir that Mr. Alli-
mundo, the mustastaph, the only officer in ibe
arravaW— 1 think that was the first petitioo,
complaining of some abuses in buyinif wine.
The governor said, What does the fellow want f
He bid me order Allimundo to answer ii, lor be
knew nothing about it. I sent for Allimundo
op to the heHd-quaners. The musiaNtapb ie
the only civil officer of 8t. Phillip's that is, in
the arraval : he is put in by the governor, and
turned out by him at pleasure.

Did you order Allimundo tf> give in an an-
awer to it ?— -I sent for him, and desired him
to come up to me. I gave him the memorial,
and told him it was the governor's order that
be answered it. Upon Allimundo's answer
coming op, it was read to the goiernor.

Coufuel. That answer is dsted the 8ib of
August 1771 ? — A. I read it to the governor*
The governor ordered me to tell Mr. Fabrigae
and Allimundo, bv an interpreter, that he wee
rerv well satisfied with the defence Allimundo
bad made to Fabrigas's charge. I told tbfa
both ao. Fabrigas came again, and desired Ie
see the defimce that AUimundo bad made. I
loM bun I was not aatboiiicd to tbew it binii

«w«HI AwkU«

Fabrigas v, Muttyn-
% m>lter for him to de-
iMfti* He cmhc again llir next day, or tba
fcf •Aer, ^(iog in annther mpmorit), cleiiriug
Itelkal mi|^t be shewn lo the gforemor.

CamiL That vm delivered Ibe 131h of
A^omT — A. Yei: in ihnrt, deaitinr to see
Kr jouificntinD of Allimuodo, and shimnE the
p^a4 of bis compUini, aad, I thiak, Rddiog
«Mfacr antcle.

tarn akeiveri theic two nemorialR to the ga-
•fiMrf— 1 did. GoT«rnor MoMjn ordered
Itu Dr. Mafkadat, «ho then acted as cliief
JMicB ci'i], ^ould rec^Te and Itear any cntn-
fbMa lluit Fabri^RB had to make agiiiusl Alli-
■mA* ; uid he addeil lo bim th« ail*oeaIe tis-
cri. Ike Mcmid officer in llie island Ihat acts
•ate Ike king'* cammission : the chief iuitice
(Kd is lite fint, the chief justice crimiDal is the
sBCMul. the Bdvocite fiscal is the third, next
rfb* thai pxemor ; he gave Ihem authority to
waA tor papers and penons, and whataoeTet
Mfkl Iw iueful in the enquiry in his name.
B* By (Dtmeranduin, I think it nag the SOth
«f AntfOBt, Ihal these tno law trentleioen, aa
rs, met, and ordered Fabrigas and
who were thpn present, to attend
ihtm Ike 93il fallowing. It may be nrcessory
I* akMrrr, iliat ihough these tiva gentlemen
■m IbTD aiilio^ in ihfir own viril cnurts,
■kay aoed as cuiumissioners of enijuiry, be-
owielkc mwi oaa one of ihe arravBl of Hi.
nilkf**. i won't charge my memory by
mtk, kol 1 am *ery sore they had a se|iarate
^■[■■Imiob nn purpose imder the governor's

Wm ibe iiHiuiry made? — On the 93d, Fa-
too* (tertsied h* would proceed nn I'urlher
iStewM allowed to see the defence Ihut Al-
k««ia had made, and given in lo the go-
■ II w.

Where «»■ ihni declaration maile? — In the
aswt batoie ihc cum tuiisi oners. Mr. Fabtigas
fmamiA a ibird incmoriBl lo truvernor Mosiyn,
Mfioc bu hinif more than what be had said
M*r Ik* eiiinroiMioners, ihni he cnuld not
■w.**! uU he had seen AJIiatundo's answer to

brtorr ihe ihiid memorial llial was present-
ai, haJ ihr ciKDinUtioiiers luade any report T

8rr) lUrlmd. Tiiat is the third memorial,
ciMUiauis the \i articles he exhibits against

Q (.'an Tooflilhedaieiolhat'— J. I think
a owfl hrhelween the 33d aad 36tb of August.
r>r«nal SliMlya refirrred him to the commis-

Wbat VM done afterwards 7— The commis-

lannpartad lo the i;overDor, that Mr. Pa-
-.•aa, ky Iba manner of his carrying on ihis
>' ■ ■■tioa apviul Allimundo

» hw waalbeif report r-The a4tbof August,
' >aiafina: here is their re)iort.

L^art. I dan <•; lhi> report he is ipeaking

un

Seij. Davy. I took a great deal of pains lo
collect dales, and I did it from Ihe cuoieots;
I believe they were rigbi, r« J opened it.

Wri/iht. There were two reports, one Ihe
3:slot August, the other ihe 4ih of September,
thai Fabrigss, by the manner of carrying on
ihis charge, intended to mt* dissentinn.

Serj. Duvy. Mr. nrighl. I find, confoan^
Iwo reports togellier: it is the third report
where Ihey report thst it is tn hi'eed sedilion.

Q. Then be presented this third memorial
oonlainioft the 13 articles f

Mr, Just. Gould. My brother Davy staleit,
that it WDS Ihe lOlh of September Ihak thej
took notice of the articles.

Q. Was there another report about the lOlh
of SepleroberF — A. Yes, there is. On Ibe
SGtb of August the governor ordered me to
desire the ctimioal chief justice, and the civil
chief justice, Ibe advocate fiscal, and the
aecretDry to the conrl of Ihe royal govern-
ment, to come to me next mnrniiig, ihal be-
ing the 96th. Fnbrigas came there, task-
ed him in the governor's name, by an inter-
preter, what he meantj whelhera civil prose-
cution to recover damages against Allimundo,
which be had sustained ? or whether he meant
In make an eiamide of him for any abuse be
bad commiltediu hisnfficef These gentlemen
were prearnt.

• What answer diil he make ? — None ; 1 eoutd
get noansivcr from him.

Serj. Davy. That is, upon the arlicles.

Court. Is that subsequent lo the delivery of
Ihe articles F

Serj. Dofy. Yes.

Q. This question arose upon bis presenting
the 13 articles lo ihe governor f — A. Upon ih*
whole uf his cuoduct.

But that was alter he presented the articles f

What did he say to Ihal?— He said nothing.
I desired him lo make some kind of answer,
Ihal 1 might tell Ihe govenior. Hisanswerat
last by eklnrtioD was, that if 1 would give him
a quarter of an hour, be would go and come
back with an answer.

Ileing cnnfuundeil at the question at first, and
giving no answer for some tinie, at length be
said that? — lie did nol know which he wanted
nor what he wanted. He gave no answer at
last, but Doty asked that he micht bate n qoar-
let of nn hour. I told bim that he was not
cniiiined loaquarier of nn hour ; bulil being
theu between lO and 1 1 o'cluck, I behered that
they would be so attentive to him, that he
might call again at t9 o'clock if he pleased.
He came back again wiibin the lime, and gaf*
noiicc that he meant a civil aclion-

Serj. G'ynn. I would not interrupt Ihis CTi-
dence, as it does not spprar to be ul great con-
sequence lo na; but I submit 10 your lurdship,
whether this is properly evidence, Ihe answec
being conieyeil lUrougn aa interiiretci f and

1S3]

U GEORGE IIL

Action Jar Fake Ifaprisonmeni'^

[1S4

whether the ioterpreler ihoold not be produced,
who knows what answers were mea ?

Mr. Lee. We are now to take the answer
from a man that does not know what the ques-
tions were, in a lang^oage the witness does not
understand, and consequently cannot report if
there were any, or what answers gfifen ; where-
as there is a man li? ing in the world who could
report the answers that were gi? en. I should
not object to it, if that ffenthteum could himself
understand the answers that were given.

Mr. Just. Gould, 1 think it is very clearly
tMifficient evidence.

Mr. Peckhom. The interpreter was appoint-
ed by the goyemor, or by bis order, tborefore
we caiuottell whe^er tliat interpreter gave
the fair and true constructions of the conver-
sation which pasted between Mr. Fabrigas and
Mr. Wright; but from the person appuiating
him, we have reason to apprehend ihe contrary.

CaurL First, it is very dear, from what Mr.
Wright says, and I sup|iose nobody will doubt
from the subsequent action, but that this in-
terpreter very fairly and rightly interpreted,
that this roan desired to have a quarter of an
hoar to consider of it : that is clear. He has
two hours given him. He comes back again,
and then the same interpreter officiates. TiMact
wrovea that lie had ezpUuned the first very clear-
ly, because he went away in consequence of it.

Wright, The assesseur criminal talks as good
English as aay gentleman in court, and he,
whenever there was the least mistake or.con-
liiBion of sound or words, set it right instant-
ly. He returned again and said he meant a
civil action.

How long time do you think he was absent f
•—Within two hours, probably an hour, Ihe
assesseurs both of them walked out and came
in agfain. The commissioners not finding Mr.
Fabrigas would attend them, were desired by
Ihe general to send him an answer in writing tu
■ix questions.

W hen was this? — Subsequent to his saying
1m would proceed by civil action.

I suppose then that meeting broke up? —
Yes. The governor consented that he might
have a civil action agamst hioi. 1 repotted
il to the governor.

Did you tell him of that ?— 1 neter saw him
afWrwards, but the judges present heard him
any he meant a civil action. They told him
they would admit it.

m.Feckkam. Did you bear that?— J. Yes,
I did. 1 was to signify to him that Ihe governor
mted lo his having a civil action, if he
■eit.

And was il signified to him ? — Yes, it was.

You say he did not proceed by a civil action,
fed therefore six questions were proposed lo
Mm r — ^The assesseur civil canse to the go-
^^^^^9 and informed him this mau did not pro-
eivil aotiou : then Ihe governor sent
»Mlahira.
iMf i^cr wan it thai they were sent
'~^I oaMOt ifceUeat.

It^L Htti digr r— N» ; it Blithe

three or four days. The ^neral sent for his
own information six questions, relative to Ihe
conduct complained of, of the mustastapb,
for the opinion of the chief justice civil, whe-
ther the mustastapb had or not exceeded his
commission. The questions are in court, and
the answers.

Is there any date to these six questions ? —
The mustastapb of St. Phillip's hearing this
great confusion, in which he was the great
person complained of, spontaneously sent np
an attestation, or rather a desire, of many of
the inbabitaolB of thearraval of St. Phillip's, to
request the continuance of the old regulations,
and that the alterations proposed by Mr. Fabri-
gas might not be made. That was signed hj
a great number of them, and was as mnch
the object of conversalioo there, as any thing
ever was.

Was any order made upon that, or what was
done ?— On Sunday the 8tb of September, Ihe
governor having first aiiked Dr. Oliver's leaver
a very considerable merchant in the town, a
doctor of laws, and the chief justice civil, he
gave them a commission to go the next morn-
ing, the Sunday, to the arraval of St. Phillip's,
to a country-house the governor has Ihere^
that is called Stanhope's Tower, telling them he
would give directions to all the people thatdeaK
in wine, that they should come before them se-
parately to be examined, and give their oni-
nions, and whether they chose the new resolu-
tions, or to adhere to the old rule.

What do you mean by asking Dr. Oliver's
permission? — He was no officer. For them
to say whether they chose the new institution
of general Johnston, or whether they chose ib#
general sale of wine as every body pleased. A
great many of them did appear the next room-
ing ; I suppose all : 1 understood at least all that
clK»se to come.

Whst was done ?— They re|iorted to the go^
vernor, that 93 were for the then practicn^
(that is, general Johnston's institutions) 41
were for the old regulations, sod 6 appeared
to be indifferent, and 4 wanted some alterations
of their own.

Which were the old ones?— They never
were in practice in the arraval of St. Phillip*a ;
but, upon all the enquir}-, they could find Ihat
tlie king's regulation subsisted about six
months, and made great confusion, but that
Ihe regulation of 1752 never obtained at all is
the arraval of St. Phillip's.

When was this reported, and dated P—
The 8th of September ; tbat was on a Sundaj.

What followed? Was this reported to the
governor f — Yes ; but the governor waa wdl
mfbrmed of what had passed, on the Sunday,
Mr. Fabrigas came on the Monday rooming
with a new memorial, complaioing'tliat it was
Sunday; and he protested against what waa
done, and Ihat Dr. Oliver, and the chief
justice civil, had used threats and menacen l»
thnpeoplt.

Then the next memorial I have in my hand
te Dr. Blvhidal, and Dr. OKm^ r— Tb g^

M5J

I^brigoi V. MoHyn.

was to cxecediogly cautioat in erevy
lliior» whether of consequence or not, upon this
BOMeoMca] meoiorial, that be submilled every
Inaftinn to the people of the island. He sent
this report to Dr. Markadal and to Dr. Oliver,
fbr them to answer. They answered it on
tklOth.

What ibUowed the next day after that?—
IiMl it was the same day Fabrigas came for
as soswer, the lOtb, which was Tuesday. He
CHW Ui me to desire an answer to his memo-
lisl about the Sunday aflair. I was not at
haiae. He em|uired then for the grovemor's
ai4*de-camp, and gave him the memorial.

Hare is another of the 10th of September, of
Dr. Piaiicisco Segui, and Dr. Markadal's. —
FiaaeisoD Scgui is the advocate.

That was an opinion of their's, as the law-
j»s ofthe island ? — I fancy that accompanied
tha answer to the articles ; I cannot be positive
tadslci. Retnminff home, 1 met Mr. Antonio
Fahrufas immediately after he had l>een with
the governor's aid-de-camp ; I think the 10th.
1 ralbcr avoiiled having any thing to say to
him: I bad had so much, I was quite satisfied.
Bs ramr to nse. I called Segui, a priest, and
gst John Vedall, who served for an interpreter,

~ who happened to be in the street, almost
the governor's wall. I desired Mr. Pa-
in the most civil manner I couki, hav-
MOaae no fifty times before, to say what he
«iihed or wanted. If he would only point out
iihat be wtabed, it ahould be done : I would
viotake to answer, the governor meant to do
iij thin^ that he wanted ; but that he had
in such a manner hitherhi, that nobody
how to please him. Mr. Vedall, who
natter, as every body in the island
with me in desiring him to go home
his family affairs. All his answer to
■e was, ooflsplaining of the enquiry being on a
fiasdrf . I told him that it could not be altered.
JidM vedall joined with me in desiring him to
gs heoae, and not bring mischief upon himself.
Ma Vedall lold me, ne said he would come
the next day with one hundred and fifty
1 think it was under bis interpreta-
thengh I had the priest there some part
afthetiaaa.

Q. Jrvm <Ad Jury. Was it armed men.^—
i. Bio, DO.

What did he say ?-- -He would come with
mt hoodred and fifty men to back the petition,
w whatever the word was, with a petition and
•ae hondred and fif\y men, or with a petition
kaeked hy one hundred and fifty men.

Q. yVoei the Jury, What do yon apprehend
he aaeant by that expression ? — A, Upon my
aavd I catehed at the expression, and desired
John Vedall to desire him to desist from such
aa idea ; which John Vedall did, and treated it
as Isaghiog : but if I understood any thing by
ii« it waa not to como with guas, for they had
aa such thing, but to come as a mob.

Q. from the Jury. Did .he speak Spanish or
Eaghsh at the time?— J. Miaorquin.

What was tht •Char iotarpretar's nama?—

A. D. 1775. [188

Segni, a priest, one of the Spanish priests : bw
was there the first part of the time, and Jobs
Vedall the hitter part.

Court, And then in consequence of that, yon
thought he meant a mob ? — A. Yes ; or I should
not have got John Vedall to enter into a k>ng
conversation to desire him to desist

Q. What did he say upon that?— il. H«
went on, J believe, repeating the same again.
1 believe the conversation was closed upon that.

Q. from the Jury, Has Allimuado, by virtua-
of his office of mustastaph, any particular li-
mited quantity of wine to sell P

Serjeant Dairy. When the papers are read,
that will be particularly spoken to.

Q. You informed the governor of what wav
said about 150 men?-»il. Yes.

Whatpaased after that?— I think on Wed»>
nesday, the governor sent his compliments t^
most ofthe officers of tlie corpa^ desiring thi^
would come to him the next morning, to ae*^
the honour that was to be done to him.

Did they meet there?— There were most of
them there. Every one, 1 believe, expected
a full meeting of the inhabitanta of St. PhiU
lip's.

What meeting was that that waa expected T
--Those people Fabrigaa had spoke of. They
waited aome time, and at last four people came,
(I think all four were shoe- makers) and they
brought a memorial. I believe a gentleman ia
in court that received it from their hands. He
took the memorial of them, read it, and I thinle
colonel Mackellar, afler reading it, told them
that they were to go about their business, to
go home peaceably, and liebave themselves aa
good subjects to his majesty ought to do. I
think there waa a conversation preceding, to
shew they did not know the contents of that
memorial they were delivering, which I be-
lieve will, by-and-by, come out. The general
asked the opinion of the general officers, as
well as I recollect, whether they all knew that
this waa founded by Fabrigas's proceeding?
and the next day he asked them wha:t they un-
derstood by it? They said they understood that
the man was to be ranished the islamii

You were not there when they ^pire their
opinions, I believe ?•*-! cannot tell.

And so, in consequence of it, he was ba-
nished the island ?-^The general ordcsred him,
in consequence of that, to be taken up that
night. He could not be found. The general-
sent to the chief justice civil, and tlie chief
justice criminal, and the advocate fiscal, to
Icnow what he should do in that case ; tliat he
thought him not safe to be left at larg^ in tha^
island. They told him— -

Q. from mt, Serjeant Glynn, Were ycai pre-*
sent, or do you speak from information ?•— il. I
am speaking of what they told me: il waa'
sent by the governor to ask their opinion. This
is their answer.

Q. What were you to ask of themf— i(. Tha
governor's power upon this oocasion* l?lirf'
said, the govemor'a power extended over th^*
man, and ha might do* with him whal*lM«

127]

14 GEORGE IIL

AMcmJot FaUe Impruonment-^

[128.

pleased ; and if he chose to banish him, thej
would answer for it with their ears.

These f^tlemen are themselves Minor-
quins?— Yes; and hoth talk very good Eng-
lish.

Cowt. This answer you carried back tothp ge-
neral f'—A. Yes ; and they told it him viva voce.
The chief justice ciril, upon my having many
doubts about it myself, and saying that it was
not quite the idea of Englishmen, and that we
had not any such law in England, said it over
and over again. He gave me a piece of paper
with his own hand, which he called a quota-
tion from the law of that land, a royal order in
the year 1500 and something else ; a positive
order from the then kin^ of Spain, wherein the
king says, that the opinion uf the assesseur
criminal is consultative only ; that the governor
may be guided or not by it, as he pleased ; but
not so in civil cases. Although the governor
tt absolute in regard to the politics and oecono-
tnical government of the island, it is not im-
proper, but very prudent to take the advice of
the assesseur criminal, as has been recom-
mended by the kin? of Spain to the governor ;
although it must be observed, that in these
cases uie assesseur only git^es his advice, and
consequently it is in the governor whether he
will follow it or not, and is not decisive, as in
civil cases. This man being a Minorquin, the
governor wanted to know bow he ahould ap-
prehend him, no officer of his knowing him.
The assesseur criminal said, that the officer
that attended- him as tipstaff was an old fellow.
Says the other, ** You shall have.mine, who ia
A young able man :" and he was apprehended
by the tipstaff who walks before the assesMur
civil every day of his life when he goes in or
out of court.

How lon^ was he kept in prison?-— 1 do not
know ; the books will shew it.

Was he put in the common and usual prison ?
-—There is no other prison in the arraval of St.
Phillip's, but where ne was put, I believe.

Why do they call it N"" 1 ?— I do not know.

Court* It has been particularly described to
me and to the jury as the prison where capital
offenders are confined, and is called N^ 1 : why
is it called N** 1, if there is not some other pri-
son ? — A, There are gentlemen better informed
of the castle of St. Phillip's than T am. I be-
Here there is no other prison. That may be
M^ 1 room in the prison.

Cross-examined by Seij. Glifnn.

I think you told us your residence in Mi-
norca was about a year and a half: who was
ffovernor during the time of your residence ?—
Upon our arrival there, the lieutenant-governor
commanded ; and upon our arrival the com-
mand devolved upon general Mostyn.

Then the command immediately devolved
upon him ? — Within two days, or so.

And the other two days Mr. Johnston, as his
liealBpant, commanded ? — 1 believe the general
cune there on Monday, and took the command
Ml Thiuiday. Beporti iind« general John«

aton*s siirnsture that the governor was arrived -
made it necessary.

Tlien your experience of the laws of Mi-
norca has been cullectHl in that residence?—
That is all 1 know uf them in the world.

Which lias been during the government of
governor Mostyn or his lieutenant. Now you
told us, that the proclamation of the governor,
with regard to tbe criminal court, was the'
same as a law ; and you distioifuish the court
of property, which regards meum and tuuMf '
from it? — Quite.

Do you mean that, without any limitation
whatsoever? Suppose the governor intended to
inflict a capital punishment upon any offender,
most that law be obeyed by the judges ?— I
should imagine it would, it is only my ima-
gination, observe.

I think you were so kind before as to tiill ns,
that thougn that proclamation came out but the
morning before, it would be equally obligatory
upon the courts of justice?— I understand ao.

Now this roustastaph, Allimnndo, sells wine,
does be not? — He makes wine of his own
vineyards, and buvs grapes of other people t»
make wine, and aells it in the arraval. He doeg
not sell it retaiL

That was a regulatM>n of goremor John*
ston's?— I believe so.

I would ask you, whether AUimundo bad
not a lot himself to sell his wine, and exdode
every other person ? — I think, aa the papera
are upon the table, they will sp^ for them*
selves. I think Allimnndo for bis own vindi-
cation urges

But I aak you, of yonr own knowledge,
whether the lot did not fall upon him .'—I be*
lieve he did not draw any lot at all ; it is not
the cuatom for the mustastaph to draw lots.

You think he did not draw lots ?— No.

You did not understand the Minorquin Inn*
gnage?— No.

It is a mixture of Italian and Spanish ?— Yes,
I believe so, and a kind of bad Spanish.

You have told us of the two interpreters : I
think you don't recollect exactly the worda the
laat interpreter said? You thinly father Segni
was gone before Fabrigas said, «« I will oome
with a petition with 150 men, or badced bj
150 men ?*' — I cannot be sure ; I think it waa
Vedall ; and the more so, from his joining with
me in endeavouring to persuade bun from hie
intention.

1 think you communicated this matter to th«
governor ? — Yes.

Did you carry Vedall with you ? — No.

Did you make any enquiry afWr the 150
people?— No.

You yourself were the person that reported
the conversation to theffovernor? — Yea.

What time did you write this paper?— 1
fancy the memorandums of that paper wera
wrote, I ahonki think, 1 could not swear to it
ao particulariy, I should think, within an hour
of every one of these transactions happening*

Then I take it for grantml, that this ia a
Mtkfol espy of a fiuthfiu coUcGlioD, Mceniinc

W]

Fabrigas v. Mostyn.

A. D. 177S.

[ISO

li your iMDMiry, within an hoar aod half after
neh tnwMction f — It waa not pat dowQ for
theMblae eye, but to refresh my own mind.

Tiio yoa did nol put down any thin^f which
^4id not believe to be true?— No, I tfaoold
Mt4cam of inch a tbing^.

Jiaw long after did yoo communicate to the
pMOi what Fabrif^ had aaid? — I never
wi laager between communicating to Fabrigas
wkat the nfovernor said, aod to the governor
vbat Fabrigas aaid, than going from this wall
li that ; uokaa the governor was not arrived
kibe morning, and I waited bis return.

Tkn you coold make no mistake of what
Fabrigas bad said. You communicated to the
pi u sot what yon put down : vou are sure
jm are wider no mistake on tbalheadf— I
bsw 1 iniKht mistake.

Bat I ilo not ask you about any mis-spelling
m ■Msdat^s, but the effect of the conversation ?
•-Ufoo my soul, I believe so.

Snj. Giynn. Then, Sir, I will read it.—
" The same day Mr. Fabrigas came for an an-
iwv to bis petition, and told the governor's
■Mtlsiy bo aboold come the nest day with a
palilioa of people concerned m grapes and
«Ma. whicb they wiU sign and come with
AssbmIvco, to the number of 150."

Hog. Gfyun. I desire it may be read ; but I
Wii*t aafc Mr. Wright any more qdestions.—
(kia mad bv the Ameiate.)

Mr. Petikmm. Pray read the nest pava*

<«On Wednesday the 11th the
r, having the field offioera in and near
with him, received a memorial from
^gmtd' by persons of St

^'s, deMriugthe old praetice might be
i: lo which he answered, that tM four
ikould return home, and behave them-
es lenod and peaosable subjects to his
ttupsly ought to do."

Mr. Lee. Your lordship will give me leave
liash npoB this paragraph a question of Mr.
Wi^gbt. You say tl^re were four men came
oib a Biemorial signed by persons of

ftillip'a, desiring the oki praetice might be
]: did you see that memorial ? — A. 1

OsB yoa take upon yoo to affirm by what
~ er it was signed?—! shall apeak merely
■aaaory, for ihey were all scratches : 1
iiaot believe there were ten names legible to it.

What number of signatures were there upon
te poper ?— I have already said 1 really and
ipoo my word do not know.

Were there nearer 150 or 100 ? — It is mere-
ly a matter of memory ; there were from 41
li 4r, I believe.

Now can you take upon you to affirm, that
Ikffie were not more peopje signed this me-
■Bfial than had signed the memorial for the
aev ioslitoiion P

Csarl. 1 understand it is in the report.
Then h a report of the assesseur civil and
Or. Otivcr, that 99 were for governor John-
Ma'a institolisD, and 41 for the okl reguht-

%ouxx.

tuHi ; 6 appeared to be indifferent, and 4 want-
ed some alterations of their own.

Q> There were 90 odd for the new institU'*
tion?— il. My memorandum says so.

Can you tell me whether there were or wera
not imon this memorial which was brought by
the four men, the signatures or requests of
more or less than that number for the oM in*
stitution?— I have already said ten times, that
I cannot take upon me to ascertain ihe nnmbof
of signatures upon this last memorial ; but I
do know Allimundo proved many of them to
be false.

You know that is not an answer to my ques*
tion. I did not ask yau what were the number
of men that signed this rDemorial : I don't meaa
you abould answer with that precision, whether
46, 50, or 1 JM) : but my question is, whether
you can take upon you to affirm atthia distanoa
of time, that the memorial whiah waa brought
by four men was signed b;^ more or less thaa
90 ? — I can aay no more : if I knew, I would
tell you. I looked at the memorial, it was foU
of crosses; and what makes me think it waa
between forty and fifty was, beoaiise I connt*
ed it.

Then you did count itP— -I did begin im
count it.

Did you proceed to count them through ?•*-■
What signifies answering that ?

Because I expect an answer. What signi^
fies counting numbers, and not going through
it?— I wish your head was capaUe of retaining
every little circumstance of no conaequencew

Court. The gentleman meana, whether yoa
have now snob a certain recollection of the
number of signatures upon that paper aa to say,
whether there were more or less than 90 P-^
A. I don't recollect any thing but one ; that is^
that I began counting; any other circum*
stances that shall lead me to the number, who*
ther I left off at 40 or what.

We understand that a considerable majoritj
signed this very memorial — we want to Know
that fact? — Every attention was employed,
every argument UMd, and every posnible meana
was taken, for finding out the true sense of tha
inhabitants; and amidst the various methtNia
taken, there did not appear, wlien enquired
into fairly and honestly, to be one in ten of all
the names that were presented to the general
in support of Fabrigas's complaint. Mr. Alli-
mundo was supposed to be a man that would
produce the truth. The fort-mi\|or was seat to
examine with him.

Mr. Lte. The seijeant will tell yon, that ia
no evidence at all. Let me ask you, when this
particular paper was copied that 1 have in my
band ? — A, As soon as 1 was at leisure to A
it myself.

\V hen was this particular paper copied ? — I
have said balf*a-dozeu times, as soon as I had
time to put all the bits of paper together; in«
stantly.

Was this paper copied from a memorial in
which this number is stated blank as it is here,
or have yoa that original nemorial by youT

K

131]

14 GEORGE m.

Action/or Fake Imprutmment^^

[ISS

In whose powession was that memorial f— Not
in mine.

To whom was it gi? en P— I think to colonel
Mackellar.

He was an officer of the g^remor's? — Com-
mander in chief o£ the corps of engineers.

So he had the possession of that memorial,
the contents of which you have stated by blank
persons ? — All I can recollect of that particular
memorial that yoa ipeak to is this, that four
people brought it; it is a hard thing to be
pinned down to such a thing as that. The
mustastaph himself was present. I think col.
Mackellar was talking of this memorial: I
think I had it out of his hand, and was going
to read it, and connt it. I beliere he or Alli-
mundo took it ; and I beliere Ailimundo took it
home to confute many of the names, which he
did afterwards.

And that you conceif e to be the reason whj
you did not get through them, why you did
not proceed to tell the number ? — I should be-
lieve so, upon my word and honour.

You do still take upou you to affirm that
there was nothing like the number in this, that
there were for the other regulation? — I did not
Attempt to sa^ such a thing.

Upon the inspection you then had, you can-
not take upon you to affirm that f— I have told
ou all 1 know of it: I fancy there was much

you
Jess

Serj. Burland, You were asked about the
lieut. guf emor being general Mostyn's lieut.
governor ; I believe Uie governor does not ap-
point his own lieut. governor? — A» No.

I believe those regulations made by general
Johnston were some years before general Mos-
tyu was governor? — ^The date willshew it.

I suppose about 1759 ? — O no ; since that.

f meant 1768 ? — I believe prior to the exe-
cotioo of the office of mustastaph by Mr. Aili-
mundo.

Prior to the time Mr. Mostyn was made go-
vernor ? — ^Yes.

You were asked a good deal about that me-
morial that bad these crosses upon it : you said
Ailimundo took it away with him in order to
confute- I know he had it ; 1 don't know

whether he took it away.

Had the governor any reason to apprehend
that those names at the bottom of that memo-
rial were not put there by the persons ?-» Yes,
he had reason to believe it.

Did he enquire into it ? — Yes.

What was the result of his enquiry ? — The
report made to him was, that a certain number
of their names were absolutely forged ; that
the hands of others were obtained under a sup-
position that the memorial related to oil.

Court, You said just now, that upon a strict
enquiry there did not appear above one in ten ;
did you yourself make enquiry of what was the
general sense of the inhabitants?— il. To every
body, and with every body that could possibly
give me information; and from the general
conversatioD I had, it did not appear to me thai
there waa^ I might say one in twaoly that erer

wished it ; and it wonid be worth your lord-'
ship's attentkin to see what these regulationf
are.

Court. Then by the generars direction yon
made the strictest enquiry you possibly could;
to see what the sense of the people might be.
and did not find above one in ten that wished
for this alteration that Fabrigas desired? — A. I^
according to my own opinion, give a great al-
lowance when I say that.

Did you inform the governor of this ? — ^When
I use the word report, I don't mean an idl«
story picked up from one or other, but a mili-
tary term, an answer to the enquiries made by
the governor.

Then the intelligence you conveyed to th«
general was, that the opinion of by far th*
greater majority was against this Fabrigaa's
desire? — All almost: I save my oath by lay-
ing almost, but there was almost all.

John Fleydel sworn.
Examined by Seij. Walker.

Q. Yoo were aid-de-camp to general Mottyq,
I believe ?— il. Yes.

Upon the 9th of September 177 1« give Ui
account of what you know of this afiair when^
Fabrigas came to the governor's? — He asked
me to see the governor in the morning. I
told him he could not then see the go-
vernor, but I was aid-decamp to the go-
vernor, and any ftvour or any thing he bad
for the governor I was ready to receive.
Afler a litde hesitation be gave me a paper, a
memorial : he desired at the same time I woidd
inform the governor that he should come the
next day for an answer; he said he ahouki
come accompanied by 300 or S50 of the inha^
bitantsofStPhiUip's.

Two hundred or 250?— 1 don't ezactlj ro-
member the words.

Was that all the conrersation you had with
him? — Yes. I immediately acquainted the
governor with this message: 1 read the me-
morial to the governor immediately, and in-
formed the gotemor of what he had said te
me. I think it was that day the governor seel
to the field-officers of the garrison and to the
commanding officers of the corps, to meet at
his house the next day, in order that they
might be witnesses of the manner in which he
should receive this Fabrigas and the |ieople be
mentioned to come along with him. Onlj
four men came the next day, and brought e
memorial.

Were any of the commanding officers there f
—Yes $ I think all the commanding offioere
were there when these men came.

What were the sense of the commanding
officers? — I think the sense of the commanC
ing officers was, that, in abort, this man should
be taken up.

Why would they take him up ? — As a troa«
blesome, seditious, and dangerous person in the
island. The governor mentioned to me, that
he had eonanlted the chief Mioorquin judges off

159)

Fahrigat «• MoHjfn*

A. D. 177S.

[184

Ike idiBd. I know he bad coDsolted them,
wfcieb eorroborated the opinion of the field-
ifiofln tbttt were there attending.

Who 18 this Mr. Fabrigas ? — An inhabitant
if %m am?al of 8t. Phillip's.

Of that district that does not belong to the
far where there are jurats f— Yes, and is close
Iftht glacis of the fort

What, has he there anj property P— Hw
Hhcr is alire ; he takes care of his father's
fiaeyards, I belieTe. That is all the property

That is, the liberty of working in his father's
lismnl ? — 1 believe so.

What sort of a character does he bear there?
—He is generally supposed to be a seditious,
IvkdeBt man ; that is the general character
•f the nan. General Mostyn is very far from
bng a tyrannical, overhearing man. I had
Mre opportunity of knowing him ; I served
■wnwKately under him the greatest part of the
hit war.

A man of temper and humanity P— Tes,
toy much so.

Cross-examined by Mr. Lee*

0- Yoo were aid-de-camp to general Mos*
^f— X Yes.

Do 3roa remember Fabrigas declaring that
Kit ay he would come accompanied with
fiOscn?— Yes.

Do yoa know whether there had not been a
itfof^ anaongst the inhabitants, and upon
ihdi aide there was a majority, whether for
is new or old regulationsP-^l cannot tell.

What were these S50 men to come for P — I
lagined it was to give weight to the petition.

Ut yoo eonceif e that the object of Mr. Fa-
knswas to bring 200 or 250 men that were
if Mspinion to give weight to his request?—

fly learned friend tboupfbt he meant to at-
tek the gmrnsoo of St. Pbinip's. You did not
iwiibeud he meant to take the garrison of St.
Kffip'e, that stood out against the whole force
tf France for a considerable time, and, by the
|m might bare stood out a great while longer ?
Tie Aa not understand that be was to come
Hike bead of these armed peasants P— Not of

C0mrt. You apprehend he was to bring these
aaaale lo shew there were so many |)eople to
bcK kia petition? — A, No; I apprehend he
a nioh that would breed confusion in the

Whether you understood that he meant to
ig tbese 200 people to occasion and raise a
iialt, or whether he meant to bring so many

rple Co shew they fa? oured his petition P —
oaany people together in a garrison would
hned eoofusion.

Cmtri. What did you understand? — A, I
imOy thought be meant to g^f e weight to his

HmI yen heard at the time that Fabrigas
ipske m bringioj; 200 or 250 of his friends —
M joo board Of aj»y dispute, whether there

were more of one opinion, or more of the other ;
or had it been asserted that the people in ge-
neral of the arraral of St. Phillip's were con-
senting to the new regulations ? — I think the
people in general wish«l to bare the old regu-
lation contmued ; I took it in that light.

What do vou mean by the old custom ? the
custom Fabrigas contended for, under the
order of council in 1752 P — Yes.

I dare say the Serjeant will not acknowledge
that you mean that

Serj. Davy. No more he does.

Court. Do you mean by the oM custom,
that which was aettled by governor Johnston f
-—A. I do ; it was some years before general
Mostyn came to the island.

Court, Or do you mean a custom that was
before the order of 1752 ? — A. 1 do not.

Mr. Lee, Then am I to understand you, that
you think the majority of people were a^nst
the opinion of Mr. Fabrigas P — A, That is my
opinion.

Do you recollect that having been alledged
to governor Mostyn as the general opinion P—
Yes.

Do vou recollect that having been alledged
to Fabrigas, that the popular opinion was
against him ? — I don't exactly reeolWot.

Don't you recollect that the very end he
had in view, and professed to have in view, in
bringing a number of his friends and a num-
ber of people concerned in vineyards to present
this memorial, was for the purpose of convinc-
ing the general that a majority of people were
with him, and not against himP — I suppose he
must mean so.

Did not you understand him so at that time,
when he talked of bringing a memorial, and
coming accompanied by 200 or 250 men ? Did
not you understand him to mean that such a
number of people that were concerned in the
wine trade ana in the produce of vineyards
would come and signify that to be their inten-
tion P— Certainly he meant so.

Were you present when the four men, not
the 200 or 250, came with the memorial sigu-
ed by others P— I was.

Was that memorial ever in your hands P — I
don't remember ever having it in my hands. I
saw it in colonel Mackellar's hand, the chief
engineer, when he questioned them about it ;
and these very people seemed shocked when
he explained to them the tenor of the memorial.
It was wrote in English, and they seemed not
to understand the import of it.

Tliey were Minorquins?*-- Yes.

Can you tell me what number of signatures
were in that memorial? — 1 cannot guess at it:
I should think much about 50 or 60, but can-
not guess.

You did not count them at all ? — No.

Robert Hudson swnrn.
Examined by Mr. Buller.

You were, 1 belisvs, fort- adjutant at this
time?— Yes.

1S5J

14 GEORGE m.

Action Jbr Fake Jmpritonment'—

[138

Was any applicttioD made to yoa by the
ciril maKittratet ? — Yea; the mustaataph of
Sc. Phillip'v came to me oo the lOib or lltb of
8epteml)ir, aad told me, upon readiaj; aome
oniera of general Mogtyn, ibat Fabrigaa aaid
he would come with a mob, and aaid tbey were
Bull and Yoidy and tbey would aee better days
to* morrow.

Air. Peckham, You need not mention what
the mustaataph told you ; that is not regular.

Cimn)>eifor Defendant. That ia the regular
metbo<l there.

Mr. Peckham, It may be regular there, but
it is f ery irregular here, and cannot be admitted
aa e? idence*

Mr. Just. Gould. I ahould be glad to know
bow the go? ernor can he apprised of any dan-
^r, unless it is by ane or other of his officers
wfbrmiiig him there is likely to be such and
auch a thing happen ? I suppose he gires the
go? ernor an account of what he has heard, then
thegoTeruor makea an enquiry into the matter.

Mr. Peckham, Hearsay is no eridence.
Besides, the mustutaph ia an interested and a
prejudiced person ; at least he appeara ao
throuifbout the different parte of this cause.
Now can what he baa said in Minorca to this
witness be admitted as evidence here? The
nustaataph is liring; why don't they produce
him ? If they had brought him here, we should
have his e? idence on oath, and could croaa-eza-
mine him to the facta.

Cauri. We do not take it for granted that it
ia really ao ; only that this gentleman, bearing
of this, tell« the gofernor.

Mr. Lee, It is no OTidence of the fact: if
you mean it only aa a report, we do not object
to it. — A. The mustaataph toM me, that upon
ffif ing out some orders to the inbabitanta of 8t.
Phillip's, some orders relative to the aelling
wine in St. Phillip's, he came with a mob, and
aaid, >« It is nuH and void, and we will see
better things to-morrow." He further said,
Ibat if there were not some immediate measures
taken with this Fabrigas, he was afraid of the
€onsf>quenoe, the rising of the people.

This was enough, f should think, to give an
alarm. Did you acquaint the governor of it ?—
Yes, 1 did.

What was done after that ? Did the gover-
nor call you together?— I was not pnvy to
what the giif ernor did in cooaequence of this;
iny pott was two miles off.

Omrl. Gentlemen of the jury, then all this
comes to nothing ; be pruves no Vact^-

8*0 .-^^"vy. No: this is to introiioce the
Bcxt e« idence, of the goTemor summoning tlie
•fficera together.

You knew this Fabrigas ; what wu his be>
havioiir iu the island .*— fikiremely troublesome,
wmya repreainted to me : there never was anv
•Igecliuu m governor Johnaton'a regulation tdl
hy thia nan. Governor Jobnstoa did this, be-
Ihe wint ttaed loiaraaoar, by every body
•■•wadtoacU wiMataiinM: theydi^

in order that no more might be opened at %
time than could be aold before it waa sour.

Cotir^ I chose to bear the reaaon and ftnui-
dation of the reguktion.

Q. What is the consequence of that aoaouf
the soldiers P—il. Diaovdera of diifer«nt kintK
fluxes and tbe like.

Court. There bdng no celbura, I anppon
they could only buy from hand to mouth.-*il.
In general they are open aheda; tbey nra
hardly better than abeda.

a Did that produce any disagreemenii
among the aellera tbemaelvea, that tl^ under*
aold ^ich other ? — A. Some poor people, that
bad but little wine, were almoat atarved: the
aeveral yeara after governor Johnaloo made this
regulation, there never was known to be neaali
aour.

Court. I waa rather apprehenaive that thin
might enhance the price. — A. Tbe price was
never raiaed upon that account.

Mr. BuUer. There waa an afforationjpric*.

Mr. Lee. Yea ; but thia waa a libarty of
aellin^ b«low it— il. The town of fit. Philiip*a
was divided into four diviaiona, and four peopin
uacd to sell at a time.

Colonel Patrick Mackellar swon.
Examined by Seijeant Daigf.

Were you at the garriaon in
1771?— Yes.

Did ywi know Mr. Fabrigaa belbre the tune
of his being apprehended P—-1 have known him
by character a great white ; they called him
RedToney.

Yoa happened to aay yon knew him by chn*
racter ; what wu the cnaracler be bore P— A
very bad one ever since I have been in lh«
iatand, and for aome time before.

Of what sort? — He was sedituNis, troohin-
aome; a drinking, gambling fellow; aat upoC
nigbta with low-life people ; and lie kapl
women.

In short, he is a man of an ordinary chnrao-
ter ? — Yes.

But the character that I wanted <^iiAy In
be informed about waa, concerning hia obedi-
ence to government, whether he is a turbulent
man ? — I hai-e had many coniplainta of him
from two musta^taphs, when I have been com-
manding officer of tlie garrison.

How long have you been there? — I waa onn
of tbe first that went there when the lalaad
was restored after the la«t war, and had beaa
there a good many \ears before. I went Arat
in 1736, and left it in 1750. I ment in May
1763, and remained then: till May laat.

Tlien you must be prHi> well acquaintoi
with tbe laws, and gotemmeot, and constiiutimi
nf ibis country ?— I have a good dealof knofP«
ledge of it, as much as a uiiliury asan eaa
have : we cannot aiudy these things aa lawy en
do.

Pray is there not a district tbey call by Uw
name of the arraval of Sl PhilMp^i f— Yea.

Mowfiff bthatr^tii mdmd bj ~

yahrigas v. Mottyn.

4BB ridi, and mrToimdcd bj water oa

tbe fort 7— WitliiD a musket-

!t withio tbislbeUcalleil Ihear-

Hftal ilo YOD meBD by (tie wati, rnyalty?—
hi wImtc Hie ^vernor bas ■ greater power
tmrnuj where Vise; nliere lleJud|resot'lbe
tteloMHWIinterpow their aulhurily or power,
kHby lii« ifCrmiwioD ; ami people ol*ihe arra-
•ri h«*B pcrticular pn>il^ge« da that account.
IWMfei nnoot conTflie any person W ap-

CWVK (bem, but by ihe j,'nTernur'B appro-
B, wUbuttliearraval,
li « MM tw in the other parts of the iiland 7

Yon bare, I beliete, in the other parts of the
Und, officer* called jurati ?— Ye«.

I> Ibere aoy aiwh in the arravat 7— Ko ; tbe
■Mluupli iithe ddIj ma^iatrate there.

IVn tliere tt an officer irithio thia royally,
vilbin tbia ftrraval, calieil a iDugiuiuph, who
k tbe ovly nauHlraie there?— Yea.

In KAhit parta nl' the islaad there ere other
^QsiiBtea of iliffercnl namea, jurala aod so
fcnb?— Y*i.

WbMD ia tbe miiataslnph oflhe arraval ofSt.
niilIifi'*appoiote<lby?--Thef;aTerDar; orcom-
MaaritT it) chief, when there is no goTeruor.

DaM tir dnplaeehim at his pleasure? — Yes,

Wbu la lite office of muilBBlaph ? — He lakes
WB of liie Heights and meaeurea of loarheta ;
M» ■•■ ai-counl of all (be wine that is made,
—Alt ilierNpMidilureot'lhe wiae-, andielllea
laj IHib itianutea among the inhabitants, in
*Mib«y oil the flrst instance,

WW, ia that wirii rrgaril to tbe alforalion,
*W»mtt o( the prii-e of tbe wine N--Thal is
4Mljr idr tnaKistrates at Mahou. The ma-
fiHMsa 'if Mahoo, as they ilo every where
•b, «i a price upon tbe "ioe, wtiich they call
■ iCvalioii or marbet price, aixl the artaral nf
k Pt.Uh|t*a t« always ruleil hy rhe a(fi>ration at
Mil— ; the niiipalrates at Halion do nnt put
ie iipoo ii, but it is always adopted.

'■•Toffifvrihat in point 111 fiirmsellte*
n |irice(--There are different prices

'Jhrrpi iwttnitKM, biil ibal in t£'i>erned tiy

- imcFUuiialiseilaiMahnn. Mu boo is the

-iff^ikMHctlotit, Phlllifi's.

tk lio ■■ the prfsMi ibsl in point of form does
iiofK ttr_Tbp niuMaaUph is the nffiier

'1 dora, aoJbcnuly wgnifipawhgilthepriteis.

!t* ts tb* iranipet, the niouib by which they
.'.dnaaDtl ■hu IB the afToratioo price, he
bria( rr«blrd ami i[nvenied by the aOura-
M> al MabdD F— Yea ; the price that is paid at
>*0B b always paid st 8t. Phillip's.

What ia Ibe micral law f Are ibe WmOT'
y^ Hosenie'l bt tbr English or tilpaniah law,
arabal aiirt 7 — Yhry always plead the Hjianish
ll*«,Mil wataelllilhy Ihe irraty of Utrecht;
ht vb^n ibn Kiigli<h liwR are conrenient fur
(^•v, iWy pUad Uiem.

^ thai wfakli ia ctmtenient they will picail,
-■^ * -tar— Yet.

iW-iwiip
iVbi-iaUi

A.D. 1773. [158

Bnt which is the law that moal preTBJUF_
TheHttauisb law. When the island tvae given
op, I btiliete DOthioK hi all was seitleil with r«.
lution to them, and Iherefure we were sup-
poseil to receire thrni upon the same Inuting
that Ihe French bad them ; but siace that tune
they made interest at home in restore lu ibem
Ihe same lawa and privileges lliat Imik placa
helbre Ibe island whs taken, that ia, Ihe Spa-
nish laws.

Were you there when Ibe place was lakeo br-
ibe French f—No; I was in America.

Piay what is the temper of the MinorquinabB
general f Areihey welleiTected to the Eaghah
govtrnmenl ? — Same aie very well, t believe;
others are not ao.

Pray do yon remember the occasion F wera
you one of those that were invited lu meet ^a-
vemar Itlotilyo, wiib the other gentlemen, DpOB
Ibe occasion of being coiisuitinl about Mr. Fa-
brigas ? — I was, once or twice.

Had yon been arqnainled thai it was a mat-
ter of public uot'iriely of what had bappeneil
with regard to Pobrigai f — 1 have been at the
presenting several memnriaU to Ibe governor.

Did you hear of tbe report ol' what had pre-
vailed, the general talk of ihe place? — Yea.

What was tbe universal opinion, if there wu
but one ? or if there were vBrions opioiDiia,
ivbal was the opininu ol you and Ihe rest of the
genilemen thai were called in? — The opioion
of the other gentlemen as well us my «wii
was, that he was a tery dangerous and trou-
blesome man. fly his li>rii>er history, au^
Irom antne anecdutes of those times, it waa
IhuUElht a very uii<iBle thing to let him be at
liberty ; that ii would he a righl thing to lake
him Up, and bring him l<i puniHbuienl, lest be,
wbii was a man very likely to be prarlised
upon, would luke other measures productive of
mitchief.

What was agreed npnn ? — It was in loose
converKatJon thought bisl that be should be
banish 1^,

According to the practice of former timet, do
you rememher a pruciice of Ibiit kind having
been done ?— I have tirnnl of several ; whea
Ihe Eniflish were in p-mi-ssinn <•( Ibe island, aa
well ar when theSpinisrda were.

Mr. Lit. Thix M uniting a prescriplioD.—
A I tell ynu wbal 1 lisie hrmd

Srrj. Glyna li io impossible that it can be
adniiltrd: if be had kuuwn an iustaace, ba
miff hi hate men tinned ii.

C'i'urf. 1 1 ia nnt question, whether, according
Io tlie eiigcucc nl ilie cose, the general might
ioHict Ihii hamslimcni ? and another thiag,
whether it la Ihe urdaioed law eslalilishrd id
t Itch a case to be applied to such brhntiuur?
Now, if you go inlu a usage ul' that kind, yan
must prove particular facti, uoi produce ihit

nieman to say he has heard such things : it
not Ibllow from hence that this luigbt ba
Ibe proper puniabment.

8erj. Dam/. You have known general Mot-
tyn, i believe,a great while? — A, Oolyslnce
he becuiM goternor of Ihe ialaad.

1S9]

U GEORGE III. Actum for False Imprisonment^

[140

T wigb to know of yoa, what is hit character
and beha? iour ? — I aUrays beard a character of
him aa a ffood officer, a polite, well-bred mao,
that earned bis commaud in the genteelest
manner.

Is be a man of bumanitjr, or rather ferocity ?
—I always understood bim to be a man of
great humanity.

Cross-examined by Mr. Txe,

Q. You say the general opinion of the field-
officers was asked, of which you are one? —
iL I do not. beliefe the geoeral opinion was
asked ; I believe it was private conversation.

Did general Mostyn then call for your opi-
nion, or the opinion of any other general officer,
touching what he should do to FabrigasP —
jifterwards we thought upon the subject.

After the man was gone to Garthagena P —
The same day, perhaps an hour.

The same day you were assembled there P —

Yes.

The day that Fabrigas had spoken of as-
aembling a number of bis friends together, the
general sent to convene a body of you P — Yes.

Court. You were a field-officer P—il. Yes.

Did you and the other field-officers meet to-
gether at the gjovemor's P — ^We came there by
Eit order, by bis desire.

Q, He proposed to you then for your opi-
nion, what should be done with this man ; and
V0U9 partly firom the former history, and partly
from modem auecdotes, thought he should t>e
banished P—il. Yes, 1 did so.

That was the ground of the accusation;
former history, and late anecdotes P — Yes.

Court. I shall certainly hear his evidence, if
you ask him the motives and grounds.

Mr. Lee, I only ask wheuier 1 bad taken it
right

Court. Did not you object to enquiring into
former instances of banishment P

Mr. Lee. No ; he has spoken of former in-
atanoes of bad conduct in Fabrigas.

CL Did any of jrou propose to the general,
or did be propose himself, to have any trial of
this genUeman before his banishment P— jI. I
believe he never did propose that ; for the judges
there gave it as their opinion, that that was
lodged entirely in the governor's own breast ;
two of them particularly, that it was entirely
in his own breast

And needs no trial at all P — 1 do not know
that there was any form of trial there.

You heard of no trial P — I heard no trial
mentioned.

You tell me the opinion of the field-officers
was this P — Yes.

As I don't know exactly who all the field-
officers were, and as I wish to deliver as many
of them aa I could from the imputation of that
opinion, pray did major Norton concur in that
opinion P— I do not remember particularly
yrhether be did or not.

Serj. Davy. That is, whether he was there
ornotP— il. He was there, but 1 do not remem-
bar what hif opinioD wai open the occaikip.

Then you cannot take upon you to sty whe-
ther it was a majority of opinion, pr unani-
mity of opbionP — A majority of opinion. I
believe there might be a Uifference or opinion.

Do you know a colonel or a major Rigby ;
I do not know what rankP — Major.

Was he there P— Yes.

Did he concur in that advice to the gover-
nor P— Both the gentlemen are here, and can
tell. We were telking among one another;
our opinion was in general.

Those that chose to give an opinion in fa-
vour of banishment gave it, and those of ano-
ther opinion either might give it or were silent P
— It vras not talking of giving an opinion, but
talking of the man's case, and what ought to
be done.

Then you cannot tell what number dissented P
—No.

Court. Were there any of the field-officers
present that did dissent to itP — A. 1 do not re-
member that any did indeed.

Edward Blakeney sworn.
Emmined by Serj. Burland.

Q. I believe you officiated as secretary to
general BlakeneyP — A. Yes; I was there
about seven years.

What sort of power does the governor exer-
cise in the arraval of St. Phillip's P— There is
no writ ; nothing can be executed there with-
out his commission.

What authority does he execute there P—
An absolute authority ; it is a royalty.

Have you known any instance of people
being sent out of the arraval P-7A few montha
af\er general Blakene^'s arrival, he banished
two Franciscan friars immediately by his own
authority.

Where did be send them to P — ^To the con-
tinent.

Court. Into Spain P — A. 1 cannot tell whe-
ther to Spain or Italy.

Q. from Jury, Was it in peace or war this
happened? — A, In peacetime. They found the
way to Rome, and complained to the general of
the Franciscan order, who corresponded with
the general upon the subject. Several letters
passed ; and general Blakeney wrote in one
of his letters, if they did not behave better for
the future, he said be would banish all the
Franciscans out of the island, and make bar-
racks of their convent. I ntercession was made
for them : they asked pardon for the offeooe
they bad committed, and upon a promise of
behaving well they were ailowea to come
back.

Did you ever hear that the power of the
governor upon that or a like occasion waa erer
called in question in the island P — No ; I took
it for granted it was banded down by the Spa-
nish governor, and they were governed bj
Spanisn laws.

Are they governed by Spanish lawsP— Yce,

We are told the arraval is a distinct juris*
diction fimn thereat of the istettdi and torn m

MI]

Fahri^ v. Mostgn.

MM aolbOTitv MM'diwI b^ the gortmort—
\m; it WwitbiD KUn-ahot of the foH. The

lln't know wbctber jon ra
•iar iaMuicea of baniihDMnt I

MUbi*. Foot reffimeDti were aeol oat by
At te kiny, to ratine four t^idcqu lb«t had
fan « longr time then in (he ganifoo. The
fifcnor KOeired orden to send home erery
oMwe MoiwiDg to the four regiment* then
tea : thej bad Men many ^ean in the iiland.
inpart bad been msdetohim, Ibatadnugbter
(foaeof the miiitwrjr people wu miMinff. An
tafBwj waa made: ahe wh proved to be lait
I priest The prieil '
Hting any tfa
a brought bHbra
Atgerenior; he gare bail nf lira people ; (tbia
*a( a military affair eotirel}) and next day he
■Mdcaned to produce her. He did not. The
pTwqi' embarked bioi directly, and sent bim
« baaid, I beh'eie, in the very tranapert that
WMteearry thia young' nomao away. The
iMtailcd to Gibraltar; and application w»a
^rfe iaDBediBtcly to the a;oTen>or by the ma-
airtraleaaf Hahao, and by the religious order,
■miaftbe gotemorto forgive him, and slay
Ihaifcip, Bad, if (be gotremor would gire leave,
tapm ('**JP'^ ■>" l>oanl, and brin^ back the
jArnm- Tbey begged, and pelilioned, and
■ncd tbe governor. Upon that the girl was
MRBeal up, brought Trom the ricar-general,
•bind at a remote end of the island. She
•M baoghl to me. The alory the told me
•^Aat tbe vicar -general had, out of charity
■Jwpaaaion, lalteo care other. She wai a
njfKtty giri. She caa put on board the
tMMrt, and sent after the Btet, and the priest
«M Weugbl back, and there were great
^■(■fa apOD hia arrival.

Mr. £e(. Vou know how little material that
k

Q, Id what office were you in ibis pli
A. ScCTCtary to the governor and commander
Bckicf by ui* king's commission.

Wben Jid you go flrat ?— In the year IT*9.

Tea were in Minorca, Ifancy, whenapoaitive
from England, that if any I'riar of
!an order, not a native ol'ihe island,
Atald CMMf ibto that islanil, he should nut be
■rimd lo remain upon it? Do you koon of
lay aucfa order in the first pUc« ? — Be so good
M IB rppeat llw order.

■* That in caie any friar of Ihe Franciscan
Oder, opt being a native of Minorca, but an
Jdarram friar, ahall come into the island, be
iktU Bot be permitlvd to take his reaidence
Ane, Ace." Vuu don't recollect any thing of
Ms, or (hat it was in obedience tu (he onler
if eoGDcil ibat this Franciscan was sent away f
bsjoa tbrget this, though it happens unfur-
laately when the g^emor obeys the order of
banperior, Ihatianowlobeauoted, aiapre-
Mdmi offaja CWD r^al uitbonty f

A. D. 177S. [149

WbM wa* tbe prirnt f — A native of Minorca.
And Ibe friar t— I understood them to be Hi>
norqoin*.

Can you lie positive about that F>~I do be-
lieve that aa a certainty and a fact: I am mo-
rally certain of it; I ivai not preMol at their'

lt»

tn* that yon have forgot even that nicb
r existed, till 1 reminded you i—I am
not deKT Uiat I remembered anch an order ex-
isted; 1 hare been orer agreat dealofgrotmd

Was It IheDBlnreofyoor office to acquaint
von with ail the orders of Ibe council of Eng- ^
land? — It came through my bands, yet very
likely and probably I lurgotit.

But yon might not have forgot it at the tim«
the friara were ordered away f

Mr. Lte. This was b 1753.— J. That k
langsnbaeqnoit: the affiurof tbe fiiar wa* ui
1743 or 1T49.

Serj. Bur/and. Then yon admit that the
king basa right to make such orderap

Serj. G/ynn. No; the conocil may maka
such orders, but we do not admit tbem to Im
legal.

Court. The case of the prieit was eome
yeara al^er tbe case ofthetwo friars?— J. Not
a great while ; about a year 1 believe, sooM
such lime: it is a great many yeara ago; I
cannot be powtiveto a few months.

Captain Jatuci Solaire aworn.
Examined by Mr. Seijeant Walker.

Q. I think you are a natitt

You know Mr. Fabrigas? — Not very parti- '

I thoD

Phillip's f—

You hare teen him there P — Several times.

What sort of a temper and disposition baa
he? — 1 cannot answer very particularly.

Do you know any thing of his ^tneral cha-
racter?—No j I do not

Serjeant Burland. I hare a very long anil
reapectable lilt of persons here to speak to tha
cbs ranter of general Mostyn, and hiag'tneral
behaviour : f suppose ibe gentlemen on lh«
other ude don't dispute Ihe general character
which haa been given of him.

Seijeanl Glynn. I shall out make the least

Btirropt to asperse general Moslyo'a characters

I shall found mysdrupon tbe facts.

Raphael Prato sworn.

Examined by Mr. BuUer.

(He not ipcabiog English, an interpreter wai

Q. Do you know Mr. Fabrigas the plaintiflT
—A. Yes.

What character has he home for some yean,
past in the island of Minorca ? Is be a peaea-
able man, or what? — A troublesome man, that
meddles too much with aiain.

US]

14 GEORGE m.

Actimtfir Fake Impi'UommetU^^

(144

WhataflMiBdo you umnf-^WA tbe go-

Court, The quMtion i«, whether opoB the
Iheli and cireomitaiiecf of the traiiHictioo it-
gtlft the ({iraarsi wet joftified is what he did ;
•Iberwiee they may enpty the iilaod.

Mr. Lee. Yet, this ishnd of all the people.

Q. to Mr. Wright, Yoa deliTered in theae
difereat memoriala aod papera : all that yoit
debt crcd io, are they genoioe Pf para or oapiea
of papera that were prciented io MiaorcaP^-
A, All, except the last, which' waa deUvered to
the geoeral'a aid-de-cmp, were deUrerad to
BM ; thai ia eadoiaad oo the '

Reads:

^ To hia exoelleiicy general Moa^o, co-
vemor and commander io chief of theislaod of
Minorea, ke. The hamUe Petitioo of Antonio
Fabriga8,a aatireand inhabitant of hk. Phillip'a
IB the aaid ishmd, abewetb, that your petitioner
baa now by him twehre eaakt of wine, the pro-
duoe of bis own rineyard, without baring par-
ohaacd ao much aa a grape of any other per-
son, of which he baa not aold a drop, when ae-
?eral other inhabitants of the said town hare
told all theirB» aa well of the produce of their
own Yueyarda, as that proceeding from what
they bought to make a profit by ; and this with
the permit of Mr. AUimondo, who docs the
function of mostaatapb. That the petitioner,
nnthe35tb of July, applied to the aaid Alii-
mundo for meuures to sell wine by the rate of
two douUera less than the current price, which
would bare raised a benefit to the troopa and
poor inhabitants of St. Phillip's ; bat notwitb-
itanding this demand was ve^ reasonable, and
confbrmable to the express condition of the first
of his mijesty's regulation of the 17th of May
175S, regarding tnis island, where it is ex-
pressly mentioned that the inhabitants of this
island shall always be permitted to sell at the
price of the afforatioo or under it, Mr. Alllmundo
reftised your petitioner, telling him he should
not sell his said wine. And aa this is not only
•gainst the reaaon and justice of the public,
and the garrison of St. Phillip, but also contrary
to his mi^esty's order in the said reguhition,
where it is mentioned that the inhabitants may
■ell their wines whenever thejr please without
any permit, under the afforatioo- price in the
island ; therefore he prays your excellency will
be pleased to order Mr. Allimundo to be more
reguhu* in this ffor he baa made above 50 casks
or wine himself, of grapes he bought to make
a profit bjT, of which he sold more than the
half, in prejudice of those persons who have old
and new wine by them), and to give your peti-
tioner the correct and just measures at the albre-
WM rale of two doublers.*'

Conrl. There is no date to this petition, I
observer— il. No.

Mr. Uo^d. It is marked on the back, '* deli-
Tared the Slat July, 1771."

• The next ia iDclaaad m the answer of tho
■mstastaph's feplj to Fabngaa the 7th of

Aagnst,ini. *«TobiaexoelleBeyrii

gOMral Mostyn, governor and oooasanderui
chief of the isfand of Minora, The hnmble P^
tition of the nnder-writlen iohabitanta of iha
aoburbs of St. Phillip's, shews. That daring Ifan
government of hia excellency heulenantpyo*
vemor JohnBton, onaecount of some oeasplaiBin
that were made oooceroing the direciioo, aaA
selling wine, a regulation waa made in the fiiil«
lowiiiir manner : that the sobtirbs of St. Phll*^
lip'a iihsil be divided into four wards ; _that iha
people ahall draw lota; that tfaey who ahnll
eooie out shall have the liberty to aell their
own wine, the aooidenta of the casks, and. the
prelereooe of the poor helplefa people being
eotirdy under the direction of the mustaalanh.
That regulation was accepted by tbeinlmbi-
tants of the auburba, and they are glad of iia
continuance aa it is observed to this diay. They
have heard that some of the inhabitanta are in«
tending to destroy the aforesaid regulation^ io
order that every one might sell tbeir wine at
the place they please, without dividing tli»
wards. This will be not only the total roin of
the inhabitanta, but it will also make them cam-
less in the culture of their lands, and leaa can-
ful in making their winea, and consequently
there will be very little wine of a good quality ;
therefore your petitionera humbly crave yoor
excellency to be ao good aa to cast an eye of
pity upon them, in not permitting thatauch a
good regulation ahould be ever altered : and
as in duty bound shall ever pray." SigaaA
by 58.

Serj. Glywu Are they maika or DaiDea?««*
A. Most of them marks.

Directed to lieutenant-general Mostyn.

** The humble petition of Antonki AUimondo,
mustastaph of St. Phillip's, sheweth, that your
excellency desiring to be informed about aneli<*
tion made by Anthony Fabrigas of St. Philiip'a^
relating to the selling of wine, says, that for-
merly the aelling of the wine of the iohabitanta
of »L Phillip's waa under the direction of the '
mustastaph of that suburb ; but as aeveral dia*

fmtes and difficulties arose from this, his exoel-
ency lieutenant-governor Johnston found it
proper to make a regulation for the sdiiog of
the wine, which was accepted with an entira
satisfaction by all the inhabitants of St. Phil«
lip's, and bv them practised to this day. At
the time 1 bad the honour to be made mustaa-
tapb of that suburb, the aforesaid regulation
was in ils full force and execution, and the aaid
lieutenant-governor charged me particularly ta
have it carefully observed. In consequenoa
of this, the said Anthony Fabrigas having ap-
plied to me a few days ago fur tlie measures la
sell his own wine two douhlers cheaper thaa
the common price, I thought it was impiissibia
to grant it to him wiihout forfeiting the dn^
of my employ, because his demand uuoo**
trar^ to the aaid reifulaiioo, by wbioh the ia* ^
habitants of that auburb are permitted to soil ,
their wiao only by tuna^ after Ihay haw

145J

fiMga$ 9. MottjfH.

A. D. 1T7S.

im

fawn loll ; for wbich letiOD your petitioner
laU the aid Fobrigu, that he oould not tell
hb wine; inlendiDH^ to say, by this, that he
not kU it in the manner he had proposed,
lit to tmjt without drawing lots, it being in-
■stent with the rtaid regulation ; thinking it
m hlo dutj to liave it omerved till such time
« joar ezcelleiicy or«lered him to the contrary.
li the former petiti<in he had the honour to
fUKnt your excellency, he thinks to haire the
CHW privileges with other inhabitants of St.
nOKp's, that is, to buy grapes, to make wine,
aid sell it ; and le^des, seeing that his prede-
Mwnii sold this wine when they pleased, not-
vilhUaiidiiig the said regulations, he thought
Ihtt tlie mintastaph of 8t. Phillip's was not in-
chded in it ; in which case your |»etitioner did
Ml think it was proper to prejudice his rights,
•r iboie of his successors, unless your ezceU
kncy ordered him to the contrary ; but to com-
ply with the inhabitants of that suburb, that
Acj nit^t be satisfied, your pelilioner always
inosed n role upon himself to sell his wine at
iltient times, and sometimes b^ the gross,
■mnoch that most of the inhabitants of that
Mbwb have sold the half of their wine, whilst

rpeiitiooer has not yet sold a third part of
It Anthony Fabrigas, or his father, says,
Aat he will not sell his wine under the com-
MB price, and that he has sold none of it as
nl, tke former having none to sell, the reason
■ aaly becauoe his turn did not come at the
when the lots were drawn, to which all
of the inhabitants of St. Phillip's are
but his wine will be sold when his

shall come."

1W PETiTioir of Anthony Fabrigas, Aug.
Idth, 177 1, directed as before.

*11ie humble petition of Anthony Fabrigas.
Ob the Slat of July 1771, the petitioner had
At honour to present a memorial to your ex-
edkncy, shewing the tran^igressiim and non-
aiaerTaiioe in the said town of tno regulations
given on the 8ih of May 1752, by his Britan-
nic majesty, 6ic. Sec, viz. thnt any native or
jihahitant of this island shall be permitted to
aril bis fruits at the fixed price of the afforation,
without any person's authority : secondly, that
no eoirmander, judge, nor officer, directly or
indircGlly, for himsflf nor through any other

noos, nhall he allowed to have any concern

any traffic, bargain, or connurcc wbatso-
: your petitioner having likewise repre-
.«.^^ U> your excellency that Antonio Alli-
Moodo, who does the function of mustastaph
in Ht. Phillip's, haa Itoui/ht grapes to make,
as lie rvally maifeafterwardo, 50 casks of wine,
af which he s«>ld more than one hall', in prrju-
ol the inhabitants of ii»t. Phillip's, who
the old wine by them; and that your pe-

_er waotetl to enjoy the liberties granted to
bin in the said regulations, offering to sell to
Ihe inhahitauts and garrison of St. Pbilhp's,
12 ra«fcs of wine he has by him of his own
induce, at two doublers less than the ordinary
iiurataoo or fixed price, dsc. yesterday, the

VOL. XX.

19th of Aujpist, your excellency's leeretary*
told your petitioner verbally, &c. at which year
petitioner was greatly surprised ; as he is ready
to prove judicially, before any one of his ma*
jesty'sjudges of this island that yourexoelleticy
may think proper to appoint, all that he hng
said in his last snd this present proposal ; in
which caae, &c. beiog sure from the instice ho
has in his favour, and from your excellency'o
good administration to administer it, prayo
your excellency will be pleased to give his de-
cree at the foot of this memorial to your peti*
tioner. He hoiies thereby to be at liberty to'
sell his wines at two doublers less than tha
afforation set by the mustastaph of St. Phil-
lip's, &c. and that the mustastaph hss acted
unbecomini'' the office he exercises of musta-
staph of St. Phillip's ; which being evidently
proved, will undoubtedly oblige your excel-
iency to give the necessary orders for the relief
and better advantage of the inhabitants and
garrison of St. Phillip's."

Serj. Gfynn. May it please your lordship,
and you gentlemen of the jury, to favour me in
this cause by way of reply. Considering the
length of time that has been spent already in
this cause, I should ask your pardon and in-
dulgence for adding more than 1 could wish to
the time that you have already spent, in an-
swer to those arguments that have been used
in behalf of the defendant, and in submit-
ting to you such observations as occur to me.
For, gentlemen, the cause, as 1 conceive, hav-
ing already \«andered very far from its true
merits, and being perplexed with matters very
foreign to the question, it is incuinbent upon
me to make such an attempt as my powers will
enable me to do, to recal your attentk>n to the
real and true question in tliis cause.

The question, gentlemen, is shortly stated ;
the discussion of it, however, requires some
time.— The question is merely what satisfac-
tion and reparation Mr. Fabrigas, a subject of
Great Britain, as much as any man even bom
in the city of London, has a right to demand
for the treatment he ha^ received. He is a
native of the island of Minorcii, born in the
Britannic dominions ; and his lordship will tell
you that every person that is so born is a free-
born citizen of Great Britain, intitled to all its
liberties and privileges.

The question therefore is, how a man thus
circumstanced is intitled to have his case con-
sidered by an English jury, and what satisfac-
tion you shall think due to* him for such kind of
treatment as he has undergone ; such tortures
of the most studied, and the most perplexing
and excruciating kind, (if you take into consi-
deration the feelings of h man's mind, as well
as his corporal sufferings) as have by the wan-
tonness of power been inflicted u(Km him.

Gentlemen, in the discussion of this question,
1 shall now barely mention to you one topic
upon which a great deal of your time has been
taken, and which 1 mention merely for the
pnrpota of clearing the cause of it, and die-

147]

H GEORGE IIL

Actimjbr False ImprUonment^^

[148

nliMng it totally from yoar considenUion ;
and that ia» what respects tbe character of Mr.
Mostyn the defeudaot. You are told of tbe
high and respectable names of great men that
bare given their attendance here to coonte-
nance that character which you are told Mr.
Alostyn indisputably possesses. My answer to
it is, that if be bad brought the pnYy-4souncil,
if be had come with testimonials in his hands
ftom the two houses of parliament, it would not
hare fsried the consiueration of this cause.
Tbe question here is wide of all consideration
of character : vou must decide it upon the facts
which appear before you in evidence, and from
them you must judge of the merits of lliis
cause. The motives of Mr. Mostyn's conduct,
and every circumstance that is material or re-
lative to that question, you are to decide upon ;
and beyond that, gentfemen, it is neither my
desire nor my duty, it is far from my province,
and far from my inclination, to attempt throw-
ing any kind of calumny or aspersion. Let
Mr. Mostyn, with all my neart, ir he can, re-
concile that conduct that has appeared before
yon to such a character, to that verdict which
1 am confident you must pronounce upon this
cause. Let Mr. Mostyn eiyoy tbe eaieem of
his great and noble Iriends ; I have no desire
to deprive him of it : I have however a zeal fur
the justice of this coimtry, that goes something
beyond the mere line and duty of an advocate,
—1 owe it to humanity,*— I think it is a ques-
tion of humanity, not depending upon tbe par-
ticular laws of any country : but it is a ques-
tion highly aflectmg the honour of the British
nation, and a question that will throw disgrace
upon our laws, oiur constitution, and the hu-
manity of our judicature, if this man should bo
sent Iwck into the island of Minorca with his
wrongs unredressed, and an accumulation of
ezpences upon him.

I own therefore, gentlemen, upon these
grounds and these considerations 1 fed a
warmth and a zeal in this cause, which I hope
will justify me for the pains that I mean to
take, if my strength will support me in it, in
laying before you what I conceive necessary
for your consideration. I have said, that I
mean to deprive general Mostyn of nothing
that is not necessary to tbe reparation of the
wrongs of this much-mjured plaintiff; that be
•ball enjoy his good name and his character
as far as my doty will permit him to enjoy
them ; 1 shall maze no observations upon him
but what arise from the cause now bmre you.
1 have some reason to wbh, and to cximplain
Ibat the like conduct has not been observed on
the other side. General Mostyn is to be graced
with the countenance of great men; and a
plain En^ish jury is to hear the titular testi-
monies ot the character of a man invested with
a high office, in high power, and possessed of

Kt riches ; yet ih% cbsracter of a poor, un-
ly, helpless individual, an inhabitant of^an
islaod, part of tbe territories belonging to tbe
crown of Great Britain (confident too that be
lifed under the pielectioo of tbe ooBStiliitM» of

Great Britain,) is to be treated as a subject of
ridicule, because he is not a man of high rank,
though you are told he is a man of charader
and of fortune, such as has intitled and recom-
mended him to the company of men of rank-sa
that island. Have we not some reason to
complain, that such matters are now introduced
to reoutt his just and well-tbnnded expectatione
to receive aatisfaction from an English jury
for tbe wrongs he has already sustained ? — u
it not eneogh that this man has endured «■
imprisonment of six day a, under the must UDf
|>aralleled hardships of rigour and cruelty tba|
can be inflicted upon a human being ? is it not
enough that he has endured a banishment from
his native country ? but, to heap calumny and
obloquy upon the head (»f a man that he baa
iiiiuied, shall be with impunity be permitted te
digress wide from the tacts in this cause, to tell
you that he is a profligate idle map ; that with
a family be neglects aJl the duties of a husband
and the master of a family ; that he is devoid
of moral character ? Is a poor helpless straamr
In this kingdom thus te ne represented, after
having ben driven out of his own by cruelty
unparalleled in tbe British history? Nor can
any history be produced, even of any other
country, tliat did not receive a most signal die-
countenance from tbe power of that country,
A man thus driven out, seeking refuge fram
tbe English laws, firiendlesB in this oountryp
ignorant of its language, is treated in tba
manner ! A gentleman comes forth, and eu-
tertains you with tbe oonnezions, chareder,
and acquaintance of the powerful defendant s
he then enters into the private conoerns eod
private character of the plaintiff, and dwdlg
upon the ignominy of it, and endeavours te
impress you with a prepossession that it will
not be in "his power to remove it. I trust thy
conduct has not escaped you. Not a word bee
fallen from us of tne character of ffeueral
Mostyn ; 1 mean on that head to be simt for
ever ; and if I had it in my power to eeperae
his character, unless it was something relative
to the cause, that made it my duty to produce
it before you, l«should be very silent about it.

Having dismissed, I hope, from the caoee
these considerations, let us now recur to the
defence that is set up by general Mostyn.
And, gentlemen, the defence set up by the ge-
neral is, that Mr. Fabrigas is a man dangerous,
aeditious, and turbulent; that he was in the
act of perpetrating sedition in the garrison of
Minorca ; that there was danger even of the
loss of Minorca itself; that it afl'ected the com-
mercial interests of this country ; and, as well-
wishers to this country and the commerce of.
it, you are called upon to give a verdict for the
derandant, or to reduce the consideration of
damages so as to pronounce something worse
for the pbuntiff, if possible, than even a verdict
for the defendant. — Gentlemen, their state of
it is, that this man, Mr. Fabrigas, being a fac-
tious, turbulent, and nnouiet man, was pursu-
ing general Mostyn witn an improper impor-
tnoity } that he was eudeavounng to apctud

I49J FoMgoi «. Modj^

lidiiMt to raise dinooteals in the girriMm it-

•dr Ibat aflcdcd the very wahnj of the ffo-

•ad the iibuid was in danger; thel

a threat that wenM hate made ge-

if ostjB reepoaaible with hie bead, if be

Waol preveotca tneb a fobemefironi being

aniad ioto eieeiition ; that be said, if bb pe-

iha waa agata refected, that be wonld eonae

tf Ibe head of 150 flaen, a menaee represented

a if it Bpported a threat that be would come

m Iha bead of an armed force : such was the

SMBtroetioB bis eounsrl put apoo it, that be

aeald appear ia such a way, as to make it ne-

mtmry far the gencial to comply with his de*

■sada ; that there was bo end of all gorern-

■sat aad all order in the iiland of Minorca,

«d a valuable part of the British dominions

by Ihca at the merc^ of our enemies. Gen-

Ibssea, thie is a well-drswn picture, and was

my powerfully urged to you. It was some-

over>paiBled, as I conoeire jrou will

And the necessity of doing it is an ob-

ioa that will aot escape you ; for less

this, 1 do conceire (I rest myself satisfied

'btha general humanity tbtt prevails in the

bassts of Baglisbmen, and iohahitants of the

oiy ef London) less than this could never have

BvVed aa any colourable justification for such

swdnet aa has been proved upon general

Msstyn: this therefore was necessary to he

UMsd to yon, that it was extorted, (contrary

li Iha feelings of bumsnity which are said to

nmy and influence that gentlemtn in all his

emdnei) tliat this was extorted from necessity ;

Ihsl there was no time for cousideration ; that

itnaa aa eroerpfency he was required to decide

i; it snpeneded therefore all forms ; it was

ly necessary, for bis i^rovernment would

exiKted if be had been at all induced

one it ; and that possesnion of which

kt wMM tlie guardian, and for which he is said

Is be tesponsible with his head, vi as in danger

if being for ever lost to Great Britain. 1 can

if e a ease like that, adding more circum-

than even the ingenuity of the couniel

ubich would not justify, though it

It extenuate indeed, the conduct of the

naader. But waa there any thing like it

this case ? This, 1 submit to yoa, gentle-

le tbst the counsel thought neces-

lo o|ien ; and less than this furnishes no

or colour of justification for general

Inalyn. Gentlemen, when this cause was

opened to yuu, and when the general's de«'

fcnec waa stated to you, that the general was

ohiigod to act in an emergency ; bonnd by the

wmn religious of ail duties, to look with cir-

cnmspection to the care of the garrison in in-

naal danger, it was necessary to act as he did ;

h was an act therefore not of inclination nor of

dshheration, it was an act of absolute cogent

irrceikuMe neces^ty, and which he had been

najoaiifijbte if be bad either omitted or de-

irrrcd for a dar. That is the nature, and that

is ibe colour of the general's justification : but

did the general know how different the case

thu would appcv upon evideooa wouU be

A. D. 1773.

[150

firom that which be had instructed his coaasel
to represent to vouP it was necessary that
the defeace should be guarded ; and then thera
is a prefiitory defence made, which in my opi-
nion very mucli deserves your consideration.
Gbneral Moatyn, with the prodeooe that from
this hour 1 smII think makes psrt of hb cha-
racter, chose to decline the jurisdiotion of an
Englbh jury. I don't wonder that be did ;
and 1 am not smased that you are told that
th|a M a noatter extraneous to the jurisdiction
of the courts of judicature in this countrr }
that you, as a jurv, are incompetent for its de«
dsion : it b of all cases in the world that case
which, as a defendant, general Mostyn must
be inclined to w»h might never appear before
an English jury, it is a tribunal that he must
dread; it b a tribunal that he must shrink
from ; and be acts upon the soundest motives
of policy and prudence when he endeavours to
evade it.— If that should prove insufficient to
him, the next resort is in the general law and
doctrine resfiecting the power of the governor
in the island of Minorca; and you are re-
peatedly cautioned not to consider yourselves
as administering justice by the laws of Bog-
land. You are told, that you are deciding a
3uestion of the laws of another country, far
ifferent indeed and materially opposite to
those of the laws of England : you are called
upon therefore to judge thb cause by another
rule, and by another standard, than that which
you are in the habit of. Considering and try-
ing causes by something more than this mitft
be desired of you, before the ends of the de-
feodant can be completely answered. Yoa
are desired to divest yourselves too of the feel*
ings of humanity ; and they are endeavoured
to be suppressed by representing to you circum-
stances of horror and danger to the general
trade of this country, in case you should sufier
even principles of law, of justice and iiumaoity,
to prevail in this cause. Gentlemen, it waa
stated to you, that in this island of Minorca
there is no law whatsoever; that the form of
government is despotism; that what may be
called the law, is the will and pleasure of the
person that governs; that the king b abso-
Fntely despotic ; that he may change and alter
the hws of this island as he pleases ; and not
only he himself can do it, but that he has de-
legated that power to his substitute ; that he ia
sent over to govern, not by any fixed invariable
pbn of laws, but such as he thinks proper to
make, such as he thinks |>r<»per to prescril>e to
the inhabitants, at any time that in his wb-
dnm it shall appear just and expedient that it
should be so. This U the state at' an English
government, and this is the construction put
upon an Enf>liiili patent that passes the great
seal of Great liritain. 1 will be bold to say, that
if that construnion is ever attempted to be put, it
must be put lepugnant to the words of thai pa-
tent. I will be bold to say, that if a patent
passes the great seal contaiuing such wonb,
there b not so feeble a judicature in this king-
dom tbit wonld not dare to pronounce it void.

151]

14 GEOBGE lU.

Action Jor Fake Imfriiotmaxt—

[158

tnd every act done ooder it illegal. Aud I will
venture to say too, it it imponible that the
ffreat man that ihonid dare to put the frreat sea],
and proititute public authority to a patent of
tbatkind, but he muat anawer to pulilic justice
with his head.— And yet thia haa been con-
tended to be the true genuine oonatniction of an
English patent, the authority under which thia
same general M oaty n, thia governor ofthe island
of Minorca, has presumed to act. Gentlemen,
having stated bow repugnant it is to every idea
aud principle of law and justice, it gives me
concern to hear in what habits, possessed with
what ideas, men raom from the island of
Miuorca.' It has been contended to be right,
because it has been done before. If it has lieen
done before, I say it ia alarming, and it ia time
to put an end to it. You have had gentlemen
with military commiaaions appearing here in red
coata, to give you legislative constructiona ; to
tell you, aa lawyers, what ia the law of the
ialand of Minorca. You have had a gentleman
who aerved aa a aecretary to governor Mostyn,
who comes home and tella you, that the go-
vernor with respect to the administration of
laws that regard only questions of civil pro-

Krty, is limited by the laws of the country ;
t with regard to criminal jurisdiction, hia
power is uncircnmscribed, and totally unli-
mited ; that by his proclamation he can change
lawa whenever he pleaaes, and the law of to-
night is not the law of to-morrow, if that man
tbinka proper to issue his proclamation to re-
peal it ; that the courta of juatice are under a
tyeto respect these proclamations as laws ; that
the individuals of the island are all to be bound
by it, and if these laws are issued but an hour
before, they are as Ending as if of long standing
in the island.

These are the ideas of law that theae gentle-
men bring from the island of Minorca, under
the government either of this general Mostyn,
or hia lieutenant-general ; and upon the autho-
rity of theae gentlemen that have furnished
thennselves with snch ideas of law and justice,
yon are at once to be prevailed upon to deter-
mine that the lawa, liberties, and privilegea of
this kingdom in no respect extend there. It is
something shocking to English ears ; a des-
potic, an arbitrary, an unlimited power ! (for
even the words nave not been spared) and
yon are here, aa an English jury, to pro-
nounce that the king of Great Britain, and
peraons acting under bim, are to exerciae
thia unlimited power within a part under the
jurisdiction of the jndges of England. If this
i» offered in extenuation of the conduct of ge-
neral Mostyn, added to the strong irresistii>le
calls of justice and humanity that must press
your minds more than words can, there must
be added to it the most powerful political consi-
derations ; for you have been told in the course
of thia argument, that the ialand of Minorca ia
an insecure poasession to the crown of Great
i'nuin ; that iu inluONtanta are in a great
neaiuro disaffected. If they are, has not the
«ftUM of the disaffectaoo beeo very esplkiUy

set forth to yon? Is not the care as evident F
Correct these gentlemeji, who think that their
hands are not bound by law and justice, that go
over to exercise power over these helplesa
men. Teach the poor Minorquins that tho
English Uw will protect them ; that their
governors are bound by law and justice to
teach them the blessings of an English govern-
ment ; you'll remove disaffection ; yoo'U
get a stronger guard than all the caution and
wisdom of governor Mostyn, his secretary and
friends, powerful and titked as they are, and
Uiis fatal system of military despotiHm ; yoa
will have the island to serve you, you will have
the affections of the inbabiunts to assist yon,
von may command them whenever you will.
Vet, gentlemen, it has been dwelt upon as m
topic, that this island is disaffected ; that their
inclinationa are against the English govern-
ment. And who can wonder at it, if what Mr.
Blakeney says he is clear in his recollection of?
I hope he is not ; I don't mean to deroeate from
his veracity ; — that a power like this has been
used of arbitrarily aending a man, a native, an
inhabitant, from the island, his friends living
there, his possessiim there, for no offence com-
mitted, but at the absolute will and pleasure of
the governor. You have heard a great deal of
Turkey, you have heard aomethin^ ofthe laws
of Ja|)an, you have heard of other despotic
powera, whose names I trust are sufficiently
odious in the eara of all English hesrera ; and
yet you are told that the governor of this island
IS equally despotic with any of these fmwera;
tliat he has no limits but his will, no bonnda
but his pleasure, no law but his inclinationa ;
that the lives and persons, if not the properties,
of all the inhabitanta of this isianti lie prootrato
before him, and they must depend upon bio
natural good inclination and humaniijp in whal
degree they are permitted to eujuy them.

This is the state of thia island ; and 1 will bo
bold to aay, it would be apeaking injirioiialy of
the government of Japan, — it would be upeak-
ing injuriously of the government of Turkey,—
it would be s|ieaking injuriously ofthe emperor
of Morocco's government, to def^cribe that as
the general state of these subjects ; it never
waa in the idea of even despotism itself till thio
very hour : it is violence aud outruge, it ia tho
law of robbery ; it never obtained in any placo
where the idea and form of a civil go«ernmenft
ever was allowed ; because, if the legislative
power and the executive meet in one person,
that distinguishes a despotic government from
the happy state that we enj(»y in this kingdom.
Our king can't prescribe us laws, but he most
administer us justice by those lawa that our re-
presentatives make for us. That ia the state
of this country, happily distinguished from the
state of despotic countries, fiut in no despotic
country whatever did this idea ever obtain, that
the prince, the despotic Sovereign, call him by
what name you will, was to adminiater justice
by bis incident pleasure, will and power. If
he made laws, he made them, proclaimed and
divolged thomi and the ralgeeli were govomed

Fahrigtu v. Mailyn.

iff Hbcn, lud iheir k'mgv were raled by tho«e
kuc But lierp thia gentl email, Mr. Blftkeney.
fra Hide licyunil iii!i cotiiuel, (hi« counsel
««U Mt tuu an; thittg like this) but bc-
oriyiiC to ihi« |^ntl*:'in*u, the inlittiitaniH or
itB«t«Dd, trithoul llie leut imputation of ile-
tutacy. oilluiiit any mode or Ibrm of trinl,
•tre WDHnced, instantly iraniparled,aDd re-
Hrad from itieit frieiidi «nd rvlatiiiu* for crer,
Mtoa il M the i^od will Da<l plmsure of ilie
fncTBor ever to pfnnlithem tortfiuni. I say,
all lk« most *liiinie>ul auecdote I list ever was
fcMd •I' a>>y governnirnt wbalever; aad a
ImImw sf Egypt would merit l lie bow-Blrinfr
fo brtaf lii« m so illpgnl siid so indecent a
www. The ttmo, llie ajificarsTice, the
II ■Mail rr of joltice, are all nt importance tn
btWarteil, anil nbich ibe policy even of Ihe
h*<aM prescribe ; jiet have our ears been tor-
Mrcd, and oar palieoce and lime been spent
viAdaetritm of this sort, lij gentlemen who
W> (»jay«il IfUttxin that inland, and nhich
hii« eoMMMMly been exercised by tliem. This
■ ■feal geaeral Hoslya has bet up in bU de-

lUa wiajMy, it is Raid, makes laws whenever

kc fWasM i it il iq bis sole will and power to

wpH vbat laws be pleases upon a conquered

DHtry. It is mnre than«Ter I beard. Tim

fm^Mne |;q«s I'unber than any book, ihal

I'f I rv*d, can justify me in allowioo' ; be-

'•, as I bare understooJ ii, if true, the

. ui^rst aulhoritin support thpse prerojpi-

rt One Cliritlian pnuce conquer* a Cliris-

kiflgilotn, thai is ijntemeil by ii« own laws,

■•• H i* ll>e will of the dnqueror to aliro-

. 'd»M> laws. The t'unqurst of Ihe island

' Hmorva «■« not msile liy qiieeo Anne per-

' '■Hj. btil it was made by ibe aiih|ecls of

m Briinin, and belonfci to ibe supreme xinie

''irat Britain. Dili if yoii ifive the jiower

ilie aofrreiiiii It mnlie Ihoie Iuhb, allow

umlaW rivbtly exercised. Can you sup'

|a>*U tt Ixrlonirs to the ^vemor 8p|H)iuIed,

tlrfbyai

I arbitrarily and iDcontmlnhly, accord'
■f m Ihair own wdl and {deasurer For in
w«» W funnab the defemfnnt Willi any colour-
lM»4»l«BCv whaUter, be ia in lie juslilied by
tin*, which you mutt candemn a* pre-
1 «f nildier^ and burelary, equal in point
la either nf Ihaselerm*-, or jon

I ibe constituijiin uf

IW apffit, tbr rraina,

InM Bnlain. Gut wilh the idva of any law

seiner ihai ««cr obtained in any stale ur

•■HH: both tbene you muit lubacnbe In l>e-

cutnply wilh ihereciuMi thai ia

lprauonnceaterdictfurcen.MDB-

kn^— TIm (rBtlemrn then baring lakeo Ibis

JhHi aa4 rcmai'c line of delence, whirh Ibey

^'"oslrt ••nlil ooQlaiu and embrace any de-

- ■ ikal (bay IbotiKbl proper to ulfer to you,

f aaJU proceed witli ihcii: ilefeiice. And,

A. D. 1775. [154

gentlemen, you are laid, that ma il was Ihe au-
thority, 10 It wan the duly of Ihe jj^neral to
proceed ai be did ; that be could have nu {ler*
aonal inalei utr'nce to a man so remote from bia
silualion, go unlikely to fall in wilb Ilk connec-
tions ; that the man was mulioous io the wbula
of his conduct ; aud that al last he commiiied
that duDfferouB act of muliny thai made it an
indispenEible act of justice in llie ^fuveroor to
commit him, and to tend him out of the isk'nd ;
that if be bad not done il, and a consequence
had happened fatal (o the inland, Ihe gurernor
would hare been responsible for il. Why,
l^llemeu, llie slate uf il so mui'b exceeded
Ihe fncts, it cetlainly was expected by the
learned counsel wbu offered il to you tbat ba
should prove somelhing less, and therefore

EroTcil this, (lioLig-h I should conceiie il would
y no means bate inlitled Ibe general to a verdict,
yet Buch conaideraliani, — an act of absolute
uecessily, Ibe aliernaiive of seeing such a Irnst
as Ibe island of Minorca lost lhrou([li his re-
missness, or Ibe rvmnring of this man out of
the island — I should bare conceived might
very well have furnished an excuse for him in
bis conduct : 1 am sure il would hare taken ofT
from any edge, any waimth, or keeaness in
which an action would bare been supported
Ihal iTould have been brought against him.
Bui, large as Ibe ground was laid, il was to
lake in certainly aimibrr case than this. No-
ibing, as I conceive, and as ] submit to vou, of
Ibis kind has been proved. Petitions, lellers,
mesBsges hare been giren in evidence before
you, and commeols are made upon the very
petitions themselves, as carrying wilh them
slroiig proofs of a mutinous inclination ; and at
last there is a broad fad asserted, that there
Has a downrieht threat of Bp|iearing in arma
al Ihe head of laO men.

Now, genilemen, ^ve your allcnlinn lo llwse
lellers, lo ihese petition] that bare been read.
They are expressed, as i conceire, in decant
and in reipeclful terms ; and if il is an act of
muliny, I do conceive that il is impossible fer
any one man In complain tbut he has received
wrong from anoiber, either hy word or letler,
but be muKi be i^andemned as a mutineer in Iha
island of Minorca; and the public faith, the
ualional faiib Ibal is pledged lor the proleclion
aud enjoyment uf their property, is reduced to
thai slate — * You shall enjoy il, but if another
presumes to wrong you, you musi not dare,
upon Ihe pain of transportation and long im-
prisonmenl, to iiliiT a word of complaint ; fur
It it jii'lged dangeroiu, ilis nut coiisiiteDl with
ihe wisilum of i;o«ernmeni lo permit it. and
we are called upon lo puiiisb you inosl severe-
ly.'— Gentlemen, the transaction appeara lo ba
ibi>: that anotbcer in Ibe island of Minorca,
called a muslaslaph, was ibe man frum whoin
ibe isUnders were to receive what ibey call tlia
alToraliDn or the asviie price: Ibis was iba
couceplion of Mr. Fubngas the pntiiioner.
Another notion preraileil, thai tbe order «(

155J

14 GEORGE III.

Ad6iimfar Ftdae Imprisonment—

[IM

CAUDcil reeeired from the erown, which iM cod-
sisteDt wilb their oapitultdoo and the rights
stipulated to them, ought to be obeerred ; hj
wbieb order tbey were at liberty to lell their
wines after a certain price bad by a public
officer beoi once asHzed, which is called the
afibratioo. But the mostastaph of the island
thought proper to say that the order of council
was superseded by another order, which com-
ing from the active person in the go? emment,
though not the principal at the time, muit ne-
cessarily supersede thai order of eouocil ; and
it was insisted upon that goremor Johnston's
order, judging of the inexpedience and impro-
priety of the former, must take place ; and
that Mr. Fabrigas was wrong in his concep-
tion of what ahonid be underBtood to be the law
of Minorca. Upon lus presenting his com-
plaint to Mr. Mostyn, be recei? ed for answer,
that Mr. Mostvo would immediaiely call upon
the mustasta|iD for bis answer. The snswer is
fi?en } and u consequence of it Mr. Fabrigas
m told that his petition was groundless, for that
the mostastaph had most perfectly satisfied the
governor. Mr. Fabrigas then desires to see,
lor confident as ho was that he was well
grounded in his complaint, yet he desires to see
file reasons that the mustastaph has assigned.
The sight of these reasons is denied him. In
consequence of that, he presents another peti-
tion; which is, 1 think, reforred to some of the
law officers of the island for their considera-
tioB. They run it over, and tbey report them-
•rires satisfied ; and tbey insert the answer of
the mustastaph, wbiob answer the plaintiff Mr.
Fabrigas is very desirous of seeing and answer-
ing. The business then proceeds, as it is said,
in repeated petitions; Mr. Fabrigas conceiving
that the governor is misled, not that be wilfully
denies him justice, but is misled through the
influence and misrepresentation of this musta-
staph ; and that produces at last a convention
of some of the island, in order to take their
of the matter. Here it is not clear what
the sense of the majority ; but here the
mustastaph had weight and interest enough to
get that represented by the miyority, which he
wished to have received. This being on a Sun-
day, when many of the inhabitants were in the
eountry following their diversions, and Mr.
Fabrigas thinking that the sense of the people
had not been properly taken, comes again to
the governor with another petition, not censur-
ing the governor, not upbraiding the governor,
not intimatinff the least uisapprobation of the go-
▼emor's conduct, or jealousy of his inclination,
couched in terms of the utmost decency. The
consequence of it was an answer, which pro-
duced from Mr. Fabrigas that very answer upon
which the defence of Mr. Mostyn has been in
■0 great a measure built ; to which the gentle-
men have applied that evidence which was pro-
duced by Mr. Wright, Mr. Mostyn's secretary.
Mr. Wright says, that first of all the conver-
sation was interpreted by a priest, and then by
another interpreter ; but he does not know who
iaierpretcd tnosa expresskms whidr fell from

Mr. Fabrigas, which he apprehended to be of
a dangerous kind, and therefore discouraged^
and advised him never to repeat again. He
does not know, he says, whetner the expres-
sion was to this purpose, that he would come
again if permitted, and that there ahould he
another petition backed with 150 men, or
that he would come with 150 men to back hia
petition. 1 am sorry for it. But here 1 can't
tbrbear a comment ; it would be betrayingmy
cause and my own judgment if I did. This
gentleman is very sure that one or the other of
these were the expressions. He professed ie
refresh his memory by a paper he had written
down within an hour and a half of the trans-
action ; and he thought proper to add, that it
gave him au alarm, as if something dangerous
might follow.

Mow, gentlemen, what are the words which
he has written, from which he said he made
his communication to the governor, and which
certainly contains the truth, as he recenllj
wrote it down P Why, that Mr. Fabrigas said
he would come next day with a petitwn of the
people concerned in grapes and wines, which
they would sign and come with to the number
of 150! These are the words wrote down bj
Mr. Wright himself. Why, gentlemen, I
submit it to you, whether in common sense and
plain honest interpretation there can be any
mistake about these words.

You hear, gentlemen, this was a oootest be-
tween the mustastaph and Mr. Fabrigas. The
governor is appealed to as a judge eipected !•
be, and who ought to be, impartial between
them : be was appeale<l to with decency on
one side, hut leaned rather with friendship on
the other ; for the interest of the governor ie
not unconnected with the emoluments of the
mustastaph. On one side it is insisted that
this was not the sense of the majority of the
inhabitants; on the other side, uotwiihstaading
what had appeared from the advantage taken
upon a Sunday, when many could not appear,
yet still that the real sense of the majority of
the inhabitants was on the side of Fabrigas.
Gentlemen, is not that the most natural key ?
does not that furnish the most obvious inter-
pretation to this.^ lie would come with 150»
in answer to what he had been told ; for his
petition bad been rejected upon the ground
that it was not consonant to the wishes of the
inhabitants, for tbey bad been summoned, had
declared and signed against it. He answers,
that 1 will come the next day with a petition
signed by 150 men. And who are these men
to be F Why, he says, persons concerned in
grapes and wine. Can you conceive tlien thai
he threatened to bring an armed force, that be
threatened danger to the garrison ? Was it not
a natural answer in that dispute that then sub-
sisted between him and the mustastaph ? la it
not clearly explained by the words, *^ the per*
sons concerned in grapes and wines/' that ha
meant the mistake should be rectified the next
day, and that it might appear from the number
attending that petilioDy upon which side the

Fabtigas V. Maslifti.

kUnden ireK ? There wai no
toniiuokeil, ihttcnul'I
U impuMlUe. TliitI
Ui»l an luau lliit wrote lliis
afv»«ald h«*c given llie eridencelbU Mr.
pnfhl lias givea, tutil mv lie waa ia ilauU
•il|Hlk» tec<4l«elkia of ific particular wordu
■«*«Tc a«d, whtMlier he irould cnmi; with a
puiivo Inefced with 150 men, ortbat he nould
eve oilb liO men taback his petition, lam
piindil ibat 110 tnae who had wrote ihJE, am)
•iKk be trtta vou is the Irutli, could «(ei' eii-
IHua (hat kioiinf doubt that Mr. Wri|;ht au^'-
fMi4 In yo». I am as conKdeDt that nn man
mM hate aiiirtaken lliii. that had not some
MMea W UMw«r bv alfectinc to mtiflake it.
W what waa Mr. W iiglit'i, what was ihe t.»i-
IKWr'a cooditct upon tbia accuioof Uid
tMarur llirni enijuire bIW iheae MO men?
V lUi waa a matter that would gire Kueli uo
imm to a (pTcmnr of a ffarrison, wsh it jiro-

Eta acq«i«*cc in (be remmsl of one only t
• thtra any enquiry made alter the others ?
If it Mrack Hr. \VTi|>hl a« danKerouf. would
fetal bare orcurrrd to him, lo tlOfi Mr. Fab.
npaapaa ibeiDManli' Would he not have de-
mmM iba aMnei nf tbene 150 men? Bat
■r. Haalya at ancc abnndoM all his irbaracter,
kiba furiHMe of Ilie cauie; he is noir do
haier iha« raithtnl officer, that good and trusty
MM', (tiairidiffeiitHiid circiimsueel governor,
te jm, ware Wore lold he was. Is it not
^•hUo hoi it ihould hnfe ocourred to both,
teAre pnrpn- coodiiL-t naa. if iliis was sjuat
^MfretaUoa ordie word! that oere u tiered, lo
1' that man U|i P not to atop there, but lo
>>ttoB4TaKBt»l him. I" discover his nbetlora
■1' «Kam|>T>ce«, to nurtue the eoquirT, aud
;'^« the aatirty oIlhcifarriBan. wbicti (hey
■rm^^ 10 tie ao iniicb in danger ? It is mac(
•*M fta* all the rjrcamataiices, thai neither
■' dm appfebended any danger whitioerer
■ Atfimaon; Ihey «li^[it in quiet as before,
flaa aaaM he tome other reason I'or their pro-
ta the uiauner iliey hare done against
beaides ibat which arises from
and emcrgancy which naa re-
ynu, or the isterposllion that the
i'lraai waa called il|>nn by iiidispensible doty
aaha, br the nice of {ircsening; the i;ar-
tliniwB into coDfuBJon, from
nnny's bands. There must
k, I aaj', BOBia oilier rraiioii lor acting in (hit
Mr. Cabrii^a. Mr. Fabrigas
tJiny would hnre it, of a dan-
^ . that a dangeroiia design was
ataMl J** t>* <* tlie nnlv man dial I'or aix
fcj» rwlai in the istatid in close imnrison-
■M, attd thcR ia not any inquiry made after
k pnvMaa pteanmed ID be ooncemed with
ha m the liuaiora*. Ifilic governor had coo-
■BM4 that ii»pn>aiiion, and withnl lo beset
^Ib M kia Hiiiniiin, ibe ammranee of the pe-
(^ iha i>c«i day wmild hate anawerrd it.
*k« (aor poor Minur(|aia<, (wbirb liir some

"' Mber are drucrilied to be of the

JttPf and which yuu will

A. D. 177S. [I5»

therefore presume to be the moil inoflensire)
wbeo Ihese four men iilooe came with the |ie-
tilion, did governor Moslyo then eontiooe in
the o|Hniua that this man waa the frainer and
cnnlriTcr of dangerous desigiw, to he backed
»nd RUpiwrled by multitudes f Must not he
change iiis ofiininn (ben i* Did the imprison-
ment end thenf Were the sufferini(s of ibis
man then put an end loF — No, gentlemen;
ihe man conlioues in prison for aiic day*, and
is arterwardi by sn order exira-judicial, by an
order of (his goTeroor Mostyn, 8eD( iolo exile ;
which if it it law, any thing he thinks proper
to do will be law } and 1 must then agree with
Mr. Wright's juridical opinion, thai ibe power
of the goTemor can have no bounds in enmioa)
mailers. If be can justify this, be might as
well justify capital nunishmenla ; nnd if ne had
thought projier to hn«e ordered hiui lo imme-
diate exeeufiun, he wmild bare done an act lull
as justifiable, in my opinion aometbing mora
agreeable to bumanily; for he sends (bis man
to rot in a dungeon, Ibe place ordained for tba
vilest and mosl desperate malef actors, for ca-
piral oflrndera only, whether under ground or
not is immaterial, but it was gluomy, damp,
and uncomfortable ; it has all the horrors of
a duni^eon belonging to i( ; and there (his man
ia kept under n special eilrnordinary order,
irhich our witneBses, who were soldiers of Ihe
garrison, who were attendants at tbe place, tell
vou, were unprecedented } no food lulTered to
be admlnislered to him, his friends debarred
from seeing him, his wife and children denied
aCL'Mtias often as they apfitoscbed, and thia
ID consequence of ordeis which (heir bnmanily
shuddered a(, but which (hey dared not pre-
sume lo contradict. Singular and unexampled
as was this cruelly even in the government of
Minorca, which nas the peculiar characier of
having a despotism brloiigiiig to it unknown in
any other place upon the face of Ibis globe;
yet even itiere, though (hey may quote in-
stances to justify some part of their beha-
viour, they never can pretend that a man
ever was treated with the studied cireuiu-
slances of rigour and crnehy cnnlaioed in
these orders: I mean, tbai no such orders
ever issued out before. This, gentleme
Ihe lrea(men( Mr. Pabri^asbas undergone
this Mr, Mofityn must justify. He mtiat not
only justify (be removing this genlteman on
of ibe way of doing mischief, but he mm
say, that without hearing, without any iir«
ceeding, withaD( (he form of sentence, with
nut even so much as an inlimslioo of the
oSence with which he is charged, he has (
right (0 inllic( tbe greatest of all punlsbmenta
upon him. Tbis Mr. Mostyn must say : and
you are to conclude, from the eiceediiig good
character of Mr. Mostyn, that all ibis pro-
ceeded from tbe pure benevolence of bis heart,
from (he mas( upright and commendable of
all motives. Yuuarcinyiurjndgmentto pasa
nn approbation of denying a man, untried and
unconvicted, all food for six day* but biead and
water, of atrrppinij him of all comfort, nod of

159]

14 GEOBGE III.

Actimjbt False Imprttonment—

[160

^Kofvag bim eren the accommodatioo of « bed.
Yoa must pronounce ibAt there was nothing
improper, nothing unlawful, nothing inlvuman
ID leparatiug a man from bia wife during this
imprisonment, stripping htm of the comfort
of bis infant children, and then transporting
bim into a foreign country, without ipving bim
Ihe opportunity of providing for his voyage,
or receiving that small assistance which jrou
have been told bis wife and son were ready on
the spot to deliver to him. This you must
pronounce to be legal and justifiable, and to be
agreeable to humanity, to be necessarily inci-
dent to the office and duty of a governor of a
garrison. You are desired, admitting for a
moment that you can't justify the general in
this conduct; admitting that some form of
triftl, that calling a man to answer and signify -
iog what he was charged with were neces-
lutry forms to precede the infliction of any
punishment whatever ; (which admission will
be an affront to the judgment of the worthy
gentleman his secretary, who insists upou the
general's will being the law) but laying that
aside for a moment, it is said the governor's
conduct stands so circumstanced, that it is so
mitigated, that you can never find it consistent
with your duty to give any considerable da-
mages against him, at the complaint of this
man. And to brand him with the most danger-
ous of all names, you are told that he is a pa-
triot : that patriotism, however it may be in-
troduced here, and may be serviceable in a
commercial country, is of no use and benefit,
but of the highest danger, in the island of
Minorca ; and the love of a man's country,
which is called the first of virtues in other
countries, becomes a mark, a dangerous offence
in that country. At the instance therefore of
such a man as that, and against such a man
as Mr. Mostyn, you are told, you can give no
damages, for the great and the long imprison-
ment, for the cruel and afflicting injury done
him, in sending him into a foreign country
from his wife and family. You cannot do it,
because it is said Mr. Mostyn has been in an
error, and that the utmost extent of Mr. Mos-
tyn's crimes amounts only to that of error.
To support this, the opinion of the military
was asked, and the opinion of those wretched
men called lawyers, who have studied law in a
country where law is not permitted to reside, and
where the will of the governor is the only law.
Upon such authorities it is said Mr. Mostyn
could not hesitate. Clear as his judgment is,
be is mistaken ; he is misled by the first of
authorities: he certainly meant well. Gentle-
men, if 5Ir. Mostyn had offended against any
C'cular positive law of this country or even
irca, though clear to common understand-
ings, ]^et that defence mi^ht be open to him ;
but it is not open to him m this case : for he
has offended against the law of humanity,
impresaed upon every good mind (no man
that feels it can ever te mistaken), and he has
offended against the first principles of justice.
But it is said, he only erred in sending a man

to a dungeon, that probably might kill htos ;
out of error too, ^e issues out orders to restrict
him to bread and water for bis sustenance ; out
of error too, he prohibited the access of hia
wife and children ; out of error, he banishad
him into a foreign country, stript of his pro-
perty, and all the comfort ne could besupposed
to have in his banishment, not suffered to take
that small provision wliieh his family had
made for him; all these errors are incident
— To whom r To the governor of Minorca. I
trust by your verdict that you will never sufiar
a man who has acted this part, to call it bo**
manity, and go back to Minorca justified bj
your verdict, in saying, ' I committed theaa
mistakes, but they were all mistakes of tbo
heart' I am sure you will not give him the
sanction and autbonty of your verdict. But
if these argimients prevail, you must do it ;
you must give the plaintiff small damaffetp
merely because the defendant is mistafcca*
Governor Mostyn, bred too in England, lately
gone over to that coimtry, does not reeoUeci
that it is necessary that a man, before be la
punished, must be tried: you are to call that
an error too. I do conceive, the lowest wretoii
that walks the streets of London, is incapable
of falling into that error : it most be an error
produced by the place ; it must be that veiY
intoxication and ornnkennesa of power whica
you ought, by your verdict, to correct. 1 1 is in- •
possible that any Englishman, or any dmui biei
in a civilized country, could fall into such an
error. And give me leave here to remark on
one part of the case. Gentlemen are brooght to
tell you of reports conveyed to the goyemor.
If Mr. Wright reported faithfully what be was
authorized to report, the governor had little'la
build upon. Another gentleman adds, that
there was a report of somebody ; and it is aaid
it may justifjr the governor as a report. Near
did they consider now the governor is to hn
justified by a report? Does a report justify a
man in proceeding to the very extremity of
punbhment instantly, without trial or exami-
nation F Does not every observation that can
possibly be made turn against general Mostya ^
If you pronounce a verdict for him, roust net
you give a sanction to tbst horrible and danger-
ous doctrine here advanced in his support f
Are not you called upon then by every consi-'
deration that is dear to you, to give great and
exemplary damages in tliis cause ? If ever ez-
aniple required it, it does in this. If ever the
suffering of a roan required it, it does in tbia ;
for never was any man more clearly and on-
justifiably wronged and injured. II yon send •
Mr. Fabrigas, if he has courage to return tft
the island, with a verdict of a few hundred
pounds, to give triumph to a man whose re-
venue is seven or eight thousand pounds a-year»
who does not regard what such a man as tbia
recovers ; then the despicable doctrine of ar«
bitrary power that the governor was ko fond of,'
and thought so well established in this ialand|*
will never again be disturbed. Is it not ea^-
sential to the ycry safety of the islandy thai .

mi

Fabrtgas xh Mostytu

A. D. 177S.

[162

the inbaliitaiits may be asiured that tbey are
pntecied from aocb a power, that tbey shall
■ever be told that io a court of justice such a
|e*er was ever insisted upon, and that the
ivy^ve only a few hundred |K>andsdaniaf2^,
MI mark that they did uot bear in their minds
my great disapprobation of it ?

bo the other hand, it is of no great coiise-
fMQce whether Mr. Mostyn ever returns to
llat country again. It is my, and I am sure
it is \ our wiah» that be may never be permitted
Is rtiuni. 1 wish he may never see the face
sf Mr. Fabri^as af^ain. 1 wish he may never
Me the face of Mr. Fabrigas a^ain m that
iiUnd. But it is of the greatest concern to the
peace and happiness of that island, that they
aic nfely protected from such outrages, from
faeh raropaat violence and capricious exercise
■f tyranny and despotism ; that they shall
■crer be disturbed again by such exertion of
■Qtborilv, much less that it shall ever be ac-
faswlcfujied as the claim of the governor of the
Uand ; but that they may quietly enjo^ those
rights that as natural-born subjects ot Great
Britun they are entitled to, and which the na-
lisaal fi^th is pledged to make good to them.
This will be the advantage that will follow the
giving ample, considerable, and exemplary
bmgCB to the plaintiff; damages that 1 must
laj in this cause are called for from the very
astare of the cause itself: for if there was not
any weightier consideration in it than for the
nferinn of the man, the damages most swell
high indeed ; but, added to that, you will pro-
dsee this faappy effect, that Minorca, which is
■iilo be a precarious possession, will for ever
he a permanent and secure possession to the
~ of Great Britain. I much fear, if this
receives countenance, it will be inse-
isdeed ; and much as I love the trade and
of this kingdom, I protest as a man
tf ftding, great and valuable as they are, 1
vsnld not consent that they should be pur-
chased, I cannot consent that they should be
puKTved, at the expence of the most solemn
i%hls of societv.

Mr. Jdlit. dfould. Gentlemen of the jury,
Anthony Fabrigas is plaintiff, and John Mos-
lem, esq. is the defendant. This, gentlemen,
is an action of trespass and false imprisonment,
en which the plaintiff declares in two counts.

The first is, that the defendant upon such a
day made an assault upon ami imprisoned the
plaintiff, without any reasonable or probable
eaase, against the laws of this kingdom, and
csmpelled him to depart from Minorca, where
ht was theredwellingand resident ; and carried
•r caused him to be carried from thence to Car-
Ika^ena, in the dominions of the kine of 8|min,
aga-Dst the plaintiff ^s will, whereby ne was put
to great expence and trouble, his goods were
Vtoled and lost, his family brouj^nt to {;reat
vaaiand distress, and he was depnved of their
vmiort. That is the first count. The second
a, the general cbarffe of false imprisonment,
»uhout alledging tnese circumstances. To
dn the defendant has pleaded two pleas.

VtiL. XX.

In the first place, the general issue, that he
is not {Jfuilty.

la the second place, he says, he is governor
of the island of Minorca, afii) that he was in-
trusted with ali the powers, privileges, and au-
thorises, civil and military, bflonginaf and re-
latint; to the government of the baiH island in
parts lieyond the seas. Then he states, that ilie
plaintiff was ffuilty of a riot and disturbance of
the peace, order, and government of the islnud,
and was endeavouring to create and mifn a
mutiny and sedition amongst the inhubitants of
the said islaml, in breach of tlieueare, in viola-
tion of the laws, and ia subversion of all order
and government ; whereupon tlie dc-fendant, in
order to preserve the pence and government of
the island, was obliged, and did then ajid there
order the plaintiff to be banished the said island,
and to leave and quit the island. And in order
to carry (his into execution, and to send him
from and out of the island, he did (then come
the words of form) gently lay hands upon him
for that purpose; and accordingly did cause
him to be kept in prison for a reasonable siiace
of time, until he could send him out of the
island ; and then at length he did send him on
board a vessel from the said island to Cartha-
gena in Spain, as it was lawful for him to do.

The plaintiff has said in answer to this, that
he did it of his own wrontr, and without any such
cause as he has alledged in' his justification.
Now whether this justification is good in lunnt
of law or not, is a matter, gentlemen, that £
shall not enter into upon this occasion. For it
seems to me, that if what has been laid down
by the gentlemen upon the part of the defen-
dant is well founded m law, tbey ought to have
pleaded that matter to the justification of the
court. But they have not so done, but have
pleaded a justification, which is denied by the
plaintiff; and that issue coming here by the
king's commission of Nisi Prius to be tried by
you and Itefore me, we must therefore ^ee
whether he has made out that justification or
not. And you will please to recollect he says
in it, that the plaintiff was guilty of a riot and
disorder, and did endeavour to excite and stir
up mutiny and so forth in the island. Thus
much I think one may say, that where a con-
quest is made of a Christian country (there ia
some strange doctrine relative to infidel coun-
tries, as if mfidels had no laws to be governed
by, that I meddle not with; but as far as re-
lates to the conquest of a Christian couuiry,)
certainly it is said, that until the crown does
promulge laws among them, they are to be
governed by their ancient laws. ludeeil, com-
mon sense speaks it, because otherwise they
would have no laws nor government among
them. However, thus far may be said, to be
sure, under such a constitution in which we
live, that at least natural equity must lie the
rule, if there is a |M)wer that is not circum-
scribed by clear, positive, and precise rules.
Yet both natural justice and equity are the

frinciples that ought to Gfnvern sucli a trust,
f any one was to write or speak upon it, it is
31

163]

U GEORGE HI.

Action for False Impruonment-^

[164

impossible bat they must lay down that propo-
sition. Then that will be a consideration for
you to try upon this occasion ; consideriofi^ this
distiDction, that we are not trying a cause now
that does happen within the compass of this
island, but we are trying a fact and a proceed-
ing that happened in a garrison beyond the
•eas, a place possessed by the crown of
Great BriUin for the general benefit of this
country and of its commerce.

In order to make out the plaintiff's case, in
the first place they hate called Basil Cunning-
bam, who was Serjeant- major in the soyal
artillery at Minorca in 1771. He says, that
the plamtiff was there at that time (it is aj^reed
upon all hands that he is a natire of the island
ef Minoroa.) When the plaintiff was brought
into prison, an order was giren out to put three
additional men upon the £[uard to do duty o? er
the prisoner Fabrigas : this was S4 hours afler
be had been in custody. The prison was called
N* 1, and is a prison where those charged
with or guilty of capital crimes or desertion are
general^ put. fle was brought there by a
part^ of soldiers, and the witness thinks hand-
cufied. It was afterwards admitted that he
was. He was confined there four or fi?e days.
The centioels informed the witness, that they
had orders that be should bare no conversation
with any but the prevost-marshal, and that was
put into the general orders : in fact, that no one
did Tisit him, as he knew of. The provost-
marshal has the custody of persons accused of
capital crimes, and keeps the key of the prison.
He says, that the plaintiff lived like a gentle-
man in the island. He says that he the wit-
ness was at SL Phillip's, and that the plaintiff
was not tried for any crime. This witness is
cross-examined, and says he has seen the
plaintiff at different times for eight or nine
years : he never heard but that be was a quiet
inoffensive subject: the plaintiff lived in St.
Phillip's, and was imprisoned in St. Phillip's
castle. This witness was there before Mr.
Mostyn became the goTernor: Mr. Johnston
was the governor when the witness came first
to that island.

James Tweedy.— He was a corporal in the
toyal artillery in 1771, and was seijeant of the
guard ; and in the middle of September the
plaintiff was delivereil a prisoner by the soldiers
of the 61st regiment. He says he was in prison
in N* 1 ; that there were orders from the ad-
jutant-lieutenant not to let any one converse
with him; he heard the adjutant read it : the
adjutant's duty is to deliver the orders of the
commander iji^chief. To relieve us from any
farther examination relative to that, it was ad-
mitted by my brother Davv that it was done
by the defendant's order, 'fhen a book is pro-
duced to you, and the title of it is, <* Orders
delivered to the troop\i in Minorca for the year
t771." '• Sept. 15, 1771. In order to relieve
the main guanl at St. Phillip's, which now
mounts a centinel extraordinary upon Anthony
fubrigas, confined in prison N** 1, general •
Mostyn orders, that three men be added to the I

artillery-guard in the Castle -souare, as they
are most contiguous, and that duty taken by
them. The centinel must he post^ night and
day, and is to suffer no person whatever to ap«
proach the grate in the door of the said prison^
either to look in or have any communication
with the prisoner, the provost-marshal ex-
cepted, who is constantly to keep the key in
hb possession." Then the witness goe% on,
and says the plaintiff's wife and two children
applied to see the plaintiff; that they were not
permitted to come nearer than 30 yards of the

C risen ; that the plaintiff lay upon boards ; he
ad no bed : his wife brought bedding, but was
not permitted to carry it to him. He says the

Sard was sure to be troubled if they bad suf-
ed any one to come to him, if they had been
guilty of a breach of the order. lie subsisted
upon bread and water : that when persons are
confined for capital offences, they have the
provisions of the island, bread and lieef, bron^bt
them. He savs that no oue attempted Co bnng
any to the plaintiff, because the onler was so
strict There was an air- hole at the top of the
prison ; a centinel was placed to keep any per-
son from approaching it ; and says that was
not done in any instance before, even of de-
serters. He says the plaintiff bad a wife and
five children. He never heard him speak dis-
respectfully of the governor, only he complained
whilst in prison of his sufferings.

William Johns was garrison-gunner at Mi*
norca in 177 1. He had been there nine vean.
He knew the plaintiff, who lived genteelly, ai
much so as any one in St. Phillip's. He says
the plaiutiff was brought to prison by a file of
men. Then he was flying on about hand*
cuffing, and so on, which the defendant's comi*
sel admitted, as described by the last witness ;
but he was not kept hand-cuffed in prison. Rft
says the prison is a ground -floor, and is ael
apart for capital offenders. The first day he
was in prison, his son, a lad of fifteen, came to
see him, and had provisions in a basket. He
desired the men upon duty to let him carry
them to his father, and they refused htm.
You see, gentlemen, it is owing to those strict
orders, that no man was to have access to
him.

John Craig is a matross. He says he wtt
at Minorca in 1771. He had lieeo there nino
years. He knew the plaintiff to be in very
good circumstances ; that is, he was so reck*
oned by people in the island. This witness
says, that he did duty upon him when he wac
in prison, and none were admitted to see him :
that his wife and child were refused. Ho
says, that after five or six days coiifinement,
the witness was at the quay, and saw him piil
on hoard a vessel that was under sail. Ho
says, this was done between three and four id
the morning. He says his wife and child
came down then to speak to him, but the ceo-
tioel would not let them come near him, nor
let the witness speak to him, though he wanted
bu to do. Then it is admitted that he was ba-
liibhed, hy Mr. Mostyn'a order, to ft^paia foe

Vahigm v. Mosiyn.

^mSySTh* Odlerml him to be taodeil ol Car-
&•(■»«, knil it w«<: SI) duDp.

Cflloncl James Bi<lu]|ili «ay», lie has licrn al
MiMrokt that he knew (lie plaintiff in ,lune
lltt. He ■laid there, I llimk, lill the year
ini. He Myi the iiUitiliS' appetnil tu him
IS mK of the nhal he call) the aecoml tori of
fafle: be was reputed to hare some houses
W lincyutls; he had ■ falher Uring. He

Xlh«t Ite nas oot receired as one iif the
Be, htu u s trenlleinan. lie aays, " 1
■kaoM call him a kiiid ul' a Keolleinao farmer."
]| na kaid \ty ihe couDBel, that the Dohleate
rfjirthemU all the h'enlry ; but ujjod my
■donf tka witnew, he lells you, " No : Ihey
■ike • very ooniidcrable iliatiactioo or the
lagbtr MBil niferiar oobtesse ;" lo that he it
•Cat ji«iu taty call in Bn^^tgiiid \a ibe litfht uf
tW tiu4diing class of men. Ue says, that as
br as be nfatcrred, he hehnved very well : atid
nai K* Ihia i;Milleinan speaks frum 1763 lo
Uf 1, lltAI be liehareil tery well, and had a
•By (mhI characler. lie says, that he oOeo
tmthyt^ him to gei wine and uther things,
■aJ be dispsli-'hed his commiiision very well.
Be Mys be |irinuiutlly kept company at Cita-
4i^ with • iloa Vigo and don Saochio, who
»*n l>o of (he 6rsl rank there (lliat is I lliink,
thicapiul of ihe Uland ;) that he always be-

Liimil. K<H era or of ihe itland of Minorca, and
Im a rc|[unetil of draguuns. This is tbe evi-
teat IB (upporl orihiKaclLOD by tbe iilainliiT.

ffhy Ibni, on behalf of the JefeDdaot, they
«di you thai tbry shall make out Ibis jusliG-
i«as ; tbat they shall Hhew lo you iba[ ihi«
•■Whated in a very lorbuleut and disorderly
-«< iHtty i that he behaied wiib auch ear-
tsi^M, bikI id such a mauaei', under such
:-..^>l«tice<, as leaded tu incite and tu rai«e
' idUatu And certainly, gentlemPQ, if that
' ikt ama, it is ■ mailer of rery serious and
~-- ■untmia oonoerii indeed. For the go'erDor
■■• s fnrtaon, wtllioal a poiBibihty nT callinif
< BMber armeil lorce to auppreni it, '
itrs, it a» iiHurreciion should be
ui bvfi* siDDngsl thrm, it is In
my fpr*^ muineot aDil irapurtaiice. For a
fmw inlrastnl in no high aud important a
MMMB. u»d of auch a delicate sod lichlisb «uri,
« lb* (rnicrnnienl of ihe island, the governor
^amli be extremely vigilant tu auppiess the
l« Nmla «r mutiny and acdilion. This they

A. D. 1773.

[166

« Mcila «C mutiny and acdilio
* Ibn aliall be Blile to atieiv y.
A^, a we shall nol be able Id

Bui, I

strictly and duly, accurdiiig to the
- >T it> whkb it ii pleaded ; vet, say they, we
' <ii< by ancb dfcnmaiances before you, ahew-
at thM the itmcral behaviour of the plaintifl
■V ni Ibai bind, aad of that coinptexion, thai
1 wifl weigb witliyou by no means In give
b|c JsttUfn. Tnis is what I think was
)nny noeb tbe anbatanee of what the gen<
4m» ba* D imalad npou by way of opening

Wb/ ibM, in tbe KM place, though ii

read at Ihe concltiilon of ihe parole ei
may remind you ol the several matters in writ'
ing Ibat have been read ; and I Ihiak it would
be but mis-spending your time tor me to read
(hem ai large over again to you. For when I
have so dine, 1 am sure 1 shall not be able lo
do it with more ditlinclness thnn the iu|>eniaua
officer under me has done ; and when I have
finished, Ihey would just as mnch be out of
your memory as Ihey are now. But you will
remember perfeclly the nature of the pro-
ceedings. I purpoK to collect them ds well
as I can intu a fncmi ; to bring the pith of ibem
as well ss I can to you. The true ground uf
the dispute was this : This Fabrigas the plain-
litf wanted, as you understand, the advantage
of an order of hia late majasly in council, in
the year IT.'i'i. by which, keeping urdtr the
afforntian, nut exceeding it, but keeping under
il, every one was to have ■ right of selling
wines ; so as he did not exceed the affbratiou.
Really, genileinen, an exceeding good plan
this is ; and that is, a tegulatiou of prices ta
keep people from impuiinK In the musi iinmo-
derate manner on Ibe inhabitants. Very likely,
a system of something of tbe like sort would
not be improper, but be of very considerable
uae even in this metropolis, for what 1 know.
But then it seems that this order lasted ooly
from theyear 1752, during the government of
general Blakeney. When general Johnston
succeeded general Blakeney as governor of
this island, he thought proper to make an al-
teralion in that order ; and tbe substance of
the alleralioD which he made was, Ibat for
the future it should not be in Ihe suburbs of

departments— lour besides ihia ariaval, as it
is called, of St. Phillip's) ; and that lur llie
future it shall not be sold promiscuously by
every une when Ihe atforalion was made,
but that for the future Ihe lour wards of ths
arravsl of St. Phithp's should draw lots, and so
take it in auccesiion ; I suppose, sell one aller
anollier till ibe wine is disposed of. And it dues
seem lo me by the evidence which has been
given by one of the wiinessei, which you will

ler than when sold belter skelter and promis-
cuously. Aud this regulation was pursued with
anme advantage. Then you see the plaiutiff
wanted to go back to ihe first order of 1753,
wbicbistheorder of ibekiiig incouucd. From
ibence vou see all ihia bustness sprung, and
from Allimundo's selling wine. That is one
grievance that was complained of, and which
seemed to be pretty material, 1 contest, as it
strikes me; because I recoiled, thai by one of
the orders It ii expressly forbid that ihe oScen
or judges, or any of them, should have any in-
termeddling with trade or tratBc. Now the
complaint nf the plainiiffngainsiibis Allimundn
is, that he who had tbe check npon alt tha
rest, this mustastaph, buys ureal i^iianliiies of
grapes, and makra a vast quantity of wine him-
self. So while be kept the othen under check,

MT] M GEORGE III.

be tells his own wine. Therefore that is ano-
tiier tliinji to lie considered of. Therefore you
aeo there are ivjieaied |»etilion8 upon this o<*ca-
aioii. And I will only say this : that to be sure
it inma out at ^enj^tti to hate been a mistake in
Mr. Wright'a evidencf-, that that numhfr of
160 |*era(Mis that were nienlionc<l by the defen-
dant's counsel as people by him to be produced
to back bis petition, or people with which hta
petition should lie backed, that be considered
as a mob, because he takes it down in writing"
himself: and when it comes to be* read, it docs
Appear that the ex|>re88i(in of the plaintiff was,
that he would bring 150 people with him,
dealers in wine and grapes, in order to »ihew
that his petition was exceedingly reasonable,
and would be agreeable to tiiem. Now that
you see is the substance of this writing, toge-
ther with the several |>articulars, orders, and
proceedings, which 1 dare say you have in
ymir memory. 1 must obsenre this, to be sure,
these gentlemen are not bred in the train of the
law, and in a course of legal proceedings; but
general Mosty n seems to me to be as inquisitive
as he possibly can to find out the bottom (»f this
thing. It does not appear from the witnesses
that the general had the least sdf- interest to
serve in this business of his own, no profit or
advantage to himself; there is no evidence
whatever, not a spark of that sort that appears.
He sends to Dr. Oliver and Dr. Markadal to
nake enquiry into this matter. He sends to
them, and desires to know their opinion. He
convokes together a council of the field-officers :
and then they are of opinion upon the whole of
this business, (whether right or wrong is not to
the present question, but it strikes me upon
this evidence, that this general Mosty n noes
seem to me to be extremely solicitous and de-
sirous to inform himself as well as he can, what
is to be done upon the occasion ;) and at length
it ends in a general answer, sucli as it was, that
it would be very right to banish this man. Now
they proceed to call several witnesses.

James Wright says, he resided in Minorca
from January 1771 to the middle of the year
1773, as secretary to the defendant Mr. Mosty n
the governor. He tells you that this island is
divided into four districts, exclusive of the ar-
raval of St. Phillip's, which the witness alwaya
understood to be separate and distinct from the
others, and under the immediate order of the
governor (you will observe, that it is in that
district that the fortification stands) : so, says
he, that no magistrate of Mali on could go there

Action Jor False Imprisonment^^

[1«8

the court of the chief justice criminal.— I would
ask a question of Mr. Wright. Has this justice
criminal a commission to try offences P

Wright. He has the hing*s ' commission
to try and to hear all causes when they cimie
before him. He bnngs them to the governor,
who signs them ; and till the governor has
signed them, they are not valid.

Q. But when the covernor has once signed
them, ban this gentleman thejuriFdictiontotry
offenders?— /I. The assesseur criminal, and the
officer fiscal, who sits as judge with him, bring
their opinion to the governor, who hears and
api^rovea of their opinion, and signa it. .

Do3«ou make any distinction beiween one part
of the island and another P— The arraval oi Bt.
Phillip's is so exempt from all kind of jnris-
diction (at least was, when I was there), that it
is a rule in the island, that if any biidy dies,
comes by their death by any accident, drowned
and fished up, that the criminal assessenr,
with I believe the fiscal and his officers, goes
to the dead body. They take the thumb, and
ssy , Who killed yon f This is a form they go
through by way of bringing about a kind ef
inquisition taken by a coroner. Whenever they
bare occasion to go there, they ask the go*
vemor leave, if i^ithin the arraval ; and there
is a particular instance of a soldier's wife beinff
killed by her hnsband.

Suppose a person is guilty of a murder within
the arraval, whom is he tried by ?— -The lasea*
seur criminal goes and takes inqnisition. That
be does not do, till he,has the governor's leave.

Suppose a person is murdered, and the mur-
derer IS found out, to be sure you don't lei
the murderer escape with impunity ?— Ne.

Now let me ask you, wiihin the arraval hy
whom is he tried? — ^The governor appoints,
but he generally appoints the assesseur.

Then the governor does not try him him**
self? — He never tries any thing of the sort*

Then be deputes somebody to try himP—
Yes.

Suppose in lesser offences, of thef\ oiir riot,
does he not appoint other people?— In smaft
offences, the mustastaph.

Mr. Just. Gould. Gentlemen, there was
in consequence of this affair, a proclamation,
that no memorial, unless tor mercy, could ho
presented, unless it was first signed by an ad*
vocate. adroiited in their courts. He saj^s that
the king in council issues u|K>n application,
alterations, which are registered in the court of
royal government ; which inclmies, as 1 under-

aSi* • B I **i ^^1 ** a*

to exercise any function, withnut leave first ob- stand him, both the civil and the criminal jn-

tained from the governor. The whole is)»nd, risdiction. He says that the defendant hein|f

be says, is goemed by the Sp.uiish laws, sub- much teozed by the plaiiitifl', by repeated ap-

2 ^ A.'L I :^.i t.. *u„— . -. u..* -...* -.1. _i: .:. i: Tl^.i %mL «v.:.^i.. «1 : uL*

iect to be varied by the t;overiior ; hut not s*. ob-
ject to that variation in re spert to meum and
ftttfffi of property, but as fo the internal police
of the island. And he teJIs yon, that his pro-
clamation, with a iiennliy annexed, is of such
force, that where the penalty is annexed, if
it is broken, the party is subject to it, and u
iSaUe to be imprisoned for non-payment He

9«y9 tbil 1b9 putjT if fcised aod brought into

plications, directed Mr. Wright to enquire what
aort of a man he was. He tells vou, that the
plaintiff 'k father h^s some nmafl vineyards;
that the plniiitiflf is a lover of politics ; that he
spends five days in seven in talking of |iolitics ;
that at that time he believes the plaintiff had no
property at all. Then he speaks as to the cha«
racter of Mr. Mosiyn. It seems net to be dia-/
puted at kaat but lie is an officeri and a H&an of

^ahrigas v. Motlt/«.

A. D. 17T3.

[ITO

J U fiDssible: no one ex-
r Feeliiigt, antl liis conilucl in
inaniier. Ttit-n tliis ffCH (le-
ws CDCs ihrougli llie whole detiit of thcue
^«tl wrilittgB wbkH liaTif liven read to jimi,
•Wi,H I nM Wtiire, I •.liall not tske i>|.
jMrUcne, f«r llie rfasuoB I hute ■Ireaily ^rea

am rrpMiltni; oier ajraio, tor you tiive
thrni kII read. He tells you, otnongat
^dun^, tb«l tlie bliabitaaU of (lie urrnvil
■H • vetiliaft to Mr. Hoatyn (ha( Ihe r'^uiila-
a«miic1tt continue, and dot be alKted, as Hie
jtitdfrdraiml. He iHlu you. that tl.e plain-
•ffbinBi{be«a willi iWceDernl's aiiMu-camp,
M Miirss inrt him. and civilly desired him to
IMdOdt irb«l h« trished; that il should be
<ar. lie says there nas one Mr. Vedall that
antnmnml^rpreitr. and spriest, ooaSe^uy,
IMjoinrd witb Mr. Wcigh( to press the pFaiD'
(f la (a bame >Dd niind his affairs, and no(
tihiae trimaetf >tito (ruiible. Then (his gen-
Ibwa cirears, that Mr. Vedall raid rrom the
ftaixHT •■ iol*rjireter, thnt he would come
tilii 110 Htm tn back his petition, or with a
pMM backed viih Hi} m«n. This ^nlle-
mniaia, be tiii'terstuod by thatamob. 1 i^hall
pvany stale t» you, us I hare already hinted
(•pa, the niivtaVe in ibal respect. He saya
tM* wtm a IvDiT <i<>n*ergBlioD by Vedall wilb
iw ^utiff, aa bis interiirpter, to desire him to
- .1: he Mill n;t<eBt<-d the tame. Then be
.11 iliat he inlbrined ihe piiFrn'ir, ihal there
■ |«i[ile ibut he undvratood were tn ac-
-iiiif tbis man as a mob the next day.
>' ilie x^neral seat Tor the officer* to nirel
. llie neit tnoraiiiif. They Bccordln<;ly
V. A large Dumber of people were ex-
."id, but only four people nt' the inferior
'-r W«wgbt a petiliun. They were dis-
^'^ to go bome peaceably. Thai Ihe result
-M nbole «aa, that the plainlitT was ba-
.^ fnM) tlie island. Ue says, Ilial Ihe de-
-tMl aent him the iritnrsi lo the chief jus-
tiMd*il and criminal, who are both Mioor-
•W, to aak what wai the Kovenior's power
■ Ms (!•»? They ae lit word back, ibat his
pal J rxiOHli'd nier the man in any shape he
jlrii ; and if he chose to banish him, he
tufbt i tbvy would aniner It with their ean.
Be carried ilur answer to llie defetidanl; tint
Wnrr, doubting: Ititnself of the law, the as-
ivanr eiail deUnred him an onler In wriliog;,
vfcwh wai dated in I.'>90; aod that imparled,
Ihll thoolfh il was tery Gt Ibr llie goffrnifr to
■k (b* adne« of Ihe asseaaeura ciiil, yet that
iS DDt by any meana bound lo
Dt deci^ite, as in mat-
lys, that die assesseur
. leni his officer, which
bia lipstalf, to the ^orernor, lo ap-
Ihe plaiatilf, who accordingly was
r« k««t in priuin about Arc days, and

teiafpnipOTty. ili

Tben ha idb you, upon
Ata. tbal AUtmiiiidn uiakcs wine and sells it in
|l«a, bnl ox, a* be hclievea, in retail. He
>p thai (be Hhtofiutu laofiiage ia very bad

Spanish. Then he is desired lo look al the
pH|ier; (ar he had a paper, wiih which, in
Kiting; bis e*id<9nce, be rH'reslied his memory :
biit upon hrokini; lo (he words iu ihst p»ier
relative to Ibe 160 men, the words that Iw baa

" I1ie Earns day Mr. Fubi igas came liir an
■nsiver lo hie |>el<tiOD, be told the governor's
cpcretary, iliat he should Come the next day
with a pi-lition nf people concerned in grapra
and wine, which they would eign and vnoie
witb ihemselies, to the noraber^ 150."

Sotlint you see this gentleman aayK, as I
ajiprehend him, { I dou'l know whether this
pBpei' that be has now producnl ia llie original
paper that he set down the minutes on Ibr re-
cnjleclioii and fur remembrance al the lime ; I
dnu'i know whe'hvr lhai is so or not — how.
erer, it may be a cojiy of it) he said he set il
down upon loose piecea of paper at first. If
thai be the case, tbc strong probability ia, that
thia entry that I bare read (ii you must hsie
been set down rei'eully alter the convenalJon.
You see the worls arc, that it was to be 150
people concerned in graiies and winn. Then
he tells vou, that upon the lllh the governor
and the neld-olBccTs met, and, as you heard
upon his original examination- receited a me-
niorlal by four men signed by blank person*
— you see the nnmber it letl blank. Thia
gentleman say« he cannot recollect ihe numltr.
He says be was couiilintc them, but be believes
there were more than 40, between 41 and 47,
he can't be exact ; but Ihe number of persons
liy whom it la siijned is in thia copy blank.
The purport uf llii> memorial is la desire that
ihe old practice may be pursued. To which
he answered by the officers, ihsl Ihcy should
return home, and behave as good and j>eacea-
ble subjects Iu bis majealy ought lo do. I
have anticipated il. I see he says, according
to hia memory, there were from 41 lo 47 aig-
natnres. There were a greut many marks,
yoii understand, lo this petition delirered by
the four men. He can't say be counted it
through, and can't affirm what Ihe number
was. He nat further examined ; and he aava,
that upon strict enquiry it did nnt appear ifiat
abore one in ten supported ibe plaintilTs de-
sire ; he ia sure he allows a greater pro|<ortioit
than the truth was : and he says he informed
Ihe defend ant Mr. Mostvn of ihat. Re made
the enquiry at ibe defendant's request, in order
to discover the sense uf the inhabitants-
John Pleydfll, ard-du-camp to the govenim',
says, that on the 9th of September ITTl.tbe
plaintiff asked btm to »ee the goremor. He
told him if he had any tbint^ fur the governor,
he would deliver it. AIit a liiile hetitaiion
the plainlifrdehvered a niemi.iial, and desired
bim to tell the governor he should come die
next day accompanied by 300 or iiO Inhabi-
tants of SI. Phillip's, lie aaya he carried the
memmial lo the gnrernor, and told tiiin wbal
the plaintiff bad said ; ujHin nhich he says,
that the governor that day tent to the com*
maniling ofiicert «f tba corps to toeet at tfaa

171J

U GEORGE III.

Action Jir False ImprisonmerU'^

im

ffoveraor'fi the next mdrning, to see bow he
thoalil receive the |)latntiff, and the fieople that
were to come with him. Now here you see in
the efidence giren by this Mr. Pleydell, there
is not that ezplaoatioo of the nature of the end
and desijp of these 200 or 250 people being to
come with him, as there is m tnat memo-
randum that Mr. Wright produced : for this is
in general said 300 or 250 people. And I can't
help remarking to you, that it seemed to make
an impression on the governor, and to alarm
him : for it was upon his delivering this mes-
sage to him that Pleydell says he did desire
the 6eld and commanding officers of the corps
to assemble the next morning, to see how be
should receive the plaintiff and the people that
were to accompany him. But he says, in-
stead of the plaintiff and such a number of
people, four men came the nexk day and
Drought a memorial. He believes all the
commanding officers were there. He was told
by the governor that the sense of all the offi-
cers was, that the plaintiff should be taken up
as a daogen>us and seditious person : he says
be had consulted the Minorquin judges, and
their opinion was the same with the military
officers. He says this gentleman is an inha-
bitant of the arraval, just by the glacis of the
fort : and says that he kept his father's vine-
yard : and that the defendant, far from being
a tyrannical over- bearing man, is one of much
temper and humanity, and the witness served
under him the last war.

Upon his cross-examination, he understood
by the plaintiff's saying he should bring 200
or 250 men, that it was to enforce or give
weight to bis petition, to certify that that was
their opinion ; that is, that they concurred in
the plamtiff 's opinion : but, says he, so many
people coming together is au act in itself of a
tumultuous kmd. He says the people in ge-
-neral wished to have Mr. Johnston's regulation
continued. As to the memorial that was
brought by the four men, he did not read it,
and bad it not in his hand ; but by just the
superficial glance he had of it, be thinks there
might be 50 or 60 names to it.

Robert Hudson, fort* adjutant, says, that
upon the lOtb or 1 1th of September, tlie mns-
tastaph of St, Phillip's told him, that upon de-
livenng out a proclamation (though I ought
not to sum that up, for what this Allimundo
■aid is no sort of evidence) — but he says that
having received this intelligence (so far it is
material) he did give the governor an informa-
tion of it: the governor was then in Mahon.
He says, that iK'fore the plaintiff made this ob-
jection, he nerer heard any objections to Mr.
Johnston's regulation ; that it was to prevent
the wine from turning sour, by being sold in
that hurrying sort of way ; that great quanti-
ties of it produce fluxes and oUier diseases
among the garrison, for there are few cellars it
seems in the garrison. He says after this re-
gulation, in ser oral years experience, none of
the wine dkl tarn sour. Tmd Ihera was a-
f ucstMB that oocuicd to me to Hkf wj

^

the serving it out in this sparing manner did
not influence the price. They said, no, be-
cause the afforation fixed the pnoe that it could
not exceed it.

Colonel Patrick Mackellar says he knows
the plaintiff; he was called Red Toney: 1
suppose he has red hair. He says he bprs a
very bad character ; that he was a seditious,
troublesome, drunken, shuflUng fellow; that
he had many complaints against him from two
mustastaphs. He was in the island from 1736
to 1750, and again from May 1760 to last May.
He tells) you the arraval of St. Phillip's is sur-
rounded by a lime-wall on one side, and the
other side a ditch ; that the arraral is a royalty,
where the governor has a jg^ater power than
any where else ; that the judges can't inter-
fere but by the governor's consent. — That cor-
responds exactly with the explanation that Mr.
Wright gites. — He says, in other parts of the
island there are jurats, but in the royalty there
is only this mustastaph, who is appointed by
the governor or commander in chief, and is aft
pleasure displaced by him. He takes care of
weights, measures, and markets, and of all
wine and the expenditure of it, and settles
little disputes between the inhabitants in the
first instance. That the magistrates at Mahon
ut the afforation within tneir jurisdictions.

his mustastaph does not make any afforatkn
himself, but acquiesces under that of Mahon :
he only signifies the afforation that has been
made at Mahon. The Minorquinsare in ge-
neral governed by the Spanish laws. When
it serves their purpose, they plead the English
laws. Some are well affected to our country ;
some are not. He attended the governor once
or twice on account of the plaintiff; and he
says that the general opinion of all the offi-
cers was, that the plaintiff was a dangerous
person, and that it was proper to take him up
and bring him to punishment ; and were of
opinion to banish him. He says the defen-
dant is a good officer, a polite well-bred
man, that he carried liis command in the
genteelest manner, and is a person of great
humanity.

On his cross* examination he says, that b«
and the other field-officerb met by the deten-
ant's desure, to know what was their opinion
upon this business. Two of the judges of the
island thought it entirely in the governor's
breast to do as he pleased ; but there was no
trial. He does not recollect whether major
Norton was of that opinion : it was the opinion
of the majority. He was asked whether major
Rigby was of that opinion or not ? He says
he can't say how that was, but does not re-
member that any one officer dissented from
that opinion.

Then Edward Blakeney, secretary to the

Swernor of that name, is examined. He says
at nothing can be executed in the arraval of
St. Phillip's but by the goremor's permisskM-t
it is a loyahj ; be has the absolute gofcn^
He sava that gen. Blatai^ a^
' '1 the jm XTMba^

Fnbrigai V. Mostipu

3U tfiars into Suain or
1 time uf peace. He sayi
■u nfterwRrila liy a gr*al deal of inter-
n Ipflte tnrPD li> ihoae people 10 relurn.
y<t iliBt llie |iuwer ilsell trss oeier ills-
porJ, ■ml he look ii lo be baniletl down from
Ik Spaiiiarile, bj wliose laws, as jou obsene,
Ih IliiiurquiDi are goierned, nnd at their owd
n^ue«t. He «ii]rB the juilges have applied lo
Hw ■itnera for ibe goveruor's leare to execute
pBce—w ill llie arnTal. lie says llie lale
imt wnl four re^meols to relieve tbe irad|i«
nuaned liicre, (bq order of humanily, like liia
a^jnly)aiHl (olia*eall llie vri*eB[in<l chilitren
tnofltt Itoine: Lowever, a priest took a liking
1» vo* of the ^a\mg nomen, and wnulil not
Mrerherup. The Driest wns baiiiaheil ; Ibe
! of wbicl) waa, ibe girl vm de-
Bod tlie priest was brought back
(oin. lie gives lbe«e as three loaiances
ntrc pewtle were bHuiabed from tbe iiland.
H* M]r« tl»l iheee I'riart, two PraociECdug,
w«r*, •* he belieres, antireii, MinorijuiaH. This

* tbie parole etidence that i« siren on the
jKlaS tb« ilefendanl. I bave already slated
-'}oo Ibe cabsiance of all that written evi-
nce : joo baie heard ji, and jou are fully
•>ten of all the circamstances Bltcnding this

Kaw, geollemeD, ii is for your consideralinn,
ifcillirr tbe defendant, general Mostyn, has
afc (wt bi« juiliGcation ; whelher he has
ymt6 that tbe derendant was guilty ofa riul,
^itd * d»turbaoL-e, and that be emleaioured
"= 'wiU! and lo ilir up a tnutiuy and a sedition
- llie ;[arr>*OD. If that is the case, I should
-■^ae, gr'odflineu, tbe plainlilF will appear to
;«u a ncrwin of a vety dangerous disposi-
tM( •»■( I bat tome very strict methods must
hmiwijf to be taken in Buch a silualion, In
Mkllt pre*erTe the (farrison, and to preTent
MaMrrcction. If it is insinuated to the aol-
tm% tlwt they are abused by the officers under
Ik cnrcToor, by the gurernnr'a connivance,

* ky hit rcmimneiB; we will say, Ihougli he
Ui»o kind of iatereit in It, but by his gross
MBHKMgemonl, ibey nre oppressed and im-
*Bais|nHi;--»uppo*e«uoh a persuasion abould
WiafMeil into ihe people composing the gar-
nna, 1 think it i« lery clear, and I neeil not
•f ue M yan, lo abew wbal dnngertiui conie-
ytti-M may rMall from (hat. Then you
*fl eoMiler tiow this case stands in thai re-
dact. You (re thiit this pervon, afier several
f^n (» D«rw nvulalion liDvIng been made by
piiBui Johnnton) is for selling up a^ain and
mVnnc an old rri[iilBtiun made In 1752 i and

" ! orerail lO to do. Then the

ad was to be taken. It lain

ie|a reacind Ibis, as I ap-

*feaal dispute it lint that by

*^ - ■ his plea, he is

il and military

lod I presume,

leBuch an aller-

; the goferoor

4 with it. Then

.. D. 1778.

[!T*

Ibis person wants lo set that old buiiness oa
loot agaio ; and be does produce, (lor so I
must lake it from tbe writing which Ihal gen-
tleman hai produced) be does mean to shew l«
the governor, that there are a Tast nutnUer of
people of his sense in tbe affair. Tbetnislor-
lune of il U, however, thai Ibis is not expreasly
conveyed lo Ilia governor ; because, aecording
to the whole belief of Ibe ageni, ibougb ha
understood that it was meant lo give weight
to tbe petition, uot to proceed to direct vio-
lence; forwbati can find, that was notdirect-
ly explained lo general Moslyn. Now you
will consider u]ion this evidence, whether you
are satiified that ibis was such b behaviour in
plainiiff, as lo affiird a juit conclusion, Ihal

how

n that V

irup

and a mutiny in the garrison ;
tlier be meant no more than earnestly to presa
his suit, and le endeavour to obtain redreu
from what seemed lo bim to be a grievance.
If you shall see It in that latter light, lo b«
sure there is no ijueslion at all that he will bw
entitled to recover in ibis action. As for tha
damages, 1 sliall nut say a word upon that
matter, because it is yonr province to coniider
on il upon all the circuuuiances, Then thera
is another consideration, which will be a legal
CDDsideraiion : that supposing you should ha
of opinion that this was really a seditious helia*
vionr in this plaintiff, which yoa will consider
of, and also whether he acteJin such a manner
MS to siir op sedition, you will be pleased to
say, that when you brinjrin your verdict. Tbe
next thing is, thatsupposingyou seetheplaiu-
liff's conduct in that light as a mutinous pur-
pose, whether the defendant could be warranted
to proceed in that manner. That is, to be sore,
B matter of very great consequence. It is not
like persona in tbiseoantry, in England, where
no freeman shall be banished his country ;
which is carried to such an extent, that lord
Coke tells us, that it is not in tbe power of tbe
king to send a man against his will even to he
tbe lord- lieutenant of Ireland (1 don't lielieve
there are many genllemeu, thai would recoil
at Ibal); but it could not be done, because it
would be ail exile: you drive a man against
bis will out of his native country. Bui how-
ever, this iaa case you see in a coni]uere<t island,
in a ceded island. And certainty 1 should
conceive myself, that if in a garrison where
il is absolutely necessary to beep down all
these inulinuiis spirils, from the aj'parent rea-
son of danger, that il must certainly be law-
ful for the governor at IcasI to lav a man up in
prison that is turbulent. But I should doubt a
great deal myself ; il wdl beamalttr thilyou,
genllemeti, will have an opporlunily lo consider,
if you please, if you shall be of opinion that
the plainlilTs behaviour was sediliuus; and
tbiit IS the reason that I desire you to atlend to
that, and tell me, when you give in your ver-
dict. It would be carrying inalters lo a very
great length indeed, in my appreheuaon, lo
■ay, that yoa should exile and banish * man
from bto oativa aountry. I ctnool, litljog

m]

UGEOEGE ni.

AiAvmJijT Falu Jnipivotrnml'^

[176

here, and u at prevent adrited, thick that cm
in such a situattuu ibatcooM be ivamnUd. I
UDDOt think bnt tbat a perMD might bo ae>
cuied Biul confiued, in oriler to be brought to
trill, uid piMfierty puniahed for it. I lea**
il to ynu UDdcr them obterfatiooa, and yoo
will cooaider upon tite whole of it, what da~
mages you ahall please to give to the [iJaia-
tifT. As to the defeodanl, yoa hear the cha-
racter be bcara frum all the wlluesaea: a maii
of great humaDity, who haa tteeo guillj' of an I tot damage*
ioordinale ute ol* hia power, but sot wiLb a '' —

nalefukot, bad, aoil wicked detigo. To be
•ure, you will uot deal out Ibe dainagea witb
the aaine *ieir aa you would *gain>t a nuo
that acted clearly aud Jema'ttralily wilb ma-
lice, ll ia your profiuce, genllemen, to con
ndcT all the circumalMkcea, and to gire in your
Tetdict accord iugly.

The jury withdrew, and in abonl an honr
Kturueit, and ga*e in their ter<Jiet for llie plain-
tiff; with 3,000/. danrai(a,andalleailRafwit.
—And at the aarae time nid, that, in rbrir opi-
nion, the plaintiff was not guilty of mutiny or
icditioD, or acted in any way lending thereto.

FdKTHEB nOCEBDIMGS T

TUIB ClDSE.

The eouniel for Uie defendant, while the
jury withdrew to cnoBider ibeir verdict, tea-
dcred to the judge mbiDtM of a bill of excep-
tjona s and on tlie fourth day of Klichaelmaa-
term, the Coart of Comuion-PIeaa waa a»OTe<l
Iw a new trial.

The defendant'! counael made hia niotioD od
tvo grouuU.

First, far ezceu of damage* ; alledgingthal
iLe jury bad proceeded oo a inialalfe, liir they
bad found that ibe plaintiff was noi guilty nl
mutiny or sediliun ; whereoa he inuited it was
IDotl plain from the wrilien evidence, that the

tlaintiff had endeafuured ID make the garrison
elieve that be was their friend.

Secuodly, that a new trial oaght la be
granted, because Ibis actioa could not be niain-
taineil, as the Court had no juriadicliou.

The rule to ahew cause was, of course,
granted.

On the 3Slh of November, Mr. Juat. Gould
r«|)orled the evidence, which agreed with tlie
printed trial. On the 46lh, it wu tclemnly
Ugued on the Hrst otyedion of exceis uf da-
naKci, ilie Court uot permitting Iho defend-
ant's couoael lo urgue the nemud objection, as
ihey said il would be introducing a new mode
of practice, which might e*eatnally be preju-
dicial lo •ailor* ; aud ai the bill of exce|iliooa
went with Iho record to the court of Kiug'a-
beuch, tbat waa the proper court to daiermine
on it.

Lord Chief Jnitice De Grry delirered hii
opinion lu the following purpon.

I have always considered Ibia node of ap-
pHcation for a new IruU, as very aaluury to the
wtlor*. who may be injored hy mislako ; and
litawue to the jury, .»il reftim. Uwir enoii,

if they commit any, and is a happy subHitDlc

for the much more grievnni pnKvediug tbat

the common law baa directed. With regard

to the interposiiiun of the courts nf juiiice on

the quantum of damages, where the subject of

the luit ia contract, the Court hai an easy ml*

logo by in rectifying the mistakea uf the jury,

because there is a certain lest and ftaudard.

As liir instance, if a man ihoald bring an action

' " lOOf , and the jury should give

.,000/. uoiter the idea of in-

lereit, they would gu upon a mistaken prin-

certain the party could notnara

dfi,, .

injury adequate to that compruaa-
tiiin : the damage* would be excroaiTe, imd th*
Court would correct it. But in peraonal
wrongs, it is much mure difficult lo draw a
line, I do not go so far aa lo say, ihat in per-
sonal wronga the Court will never iuierpoafc
even upoo the article of escemiTc damage*, if
they are oulrageuua, and appear so to ilie Court;
that is, aa my brother Gould expressed it, if it
apprari, iu giving the duniages, that the jury
did uiil act will) deliberation, but with paasioii,
partiality, or corruption. As <br ioatauce, if
tiTO ordinary men should quarrel at an al*>
boi»e, and one should give Ihe other a fillip
opon the nose, and 1,(X)0/. ahotild be gina
for dainageti, which is ten times more than
bolh the parlies are worth, such damages
iroiild be evidence that the jury had not acui
wiih the deliberaiion Ihat the administratioii of
justice require*. It i* a peraonal tori, bolthc-
damage* are excessive. There are other cir^
Gumatances, where lite Conrt, even upon ezcea*
•i*e damages, might interpose: and I think
the couotel lor governor Hoslyn have verj
wisely cndearourM to ground ihemaelvea tinoK
such a principle ID this cause; which is, tut
the jury, in aaaeasin^ the compenialion fbr tha
injury, have proceeded on a mistake. It it
possible tlml to many instances that mistake
may arise from the direction of the Court ; fbr
the Court may perhaps direct Ihe jury to at
tend to a circumstauce, that in point of law ia
not prnved, or is not Ihe subject-matter for their
coosider.ll lull : or il is possible that Ihe jury
may so miilake the evidence, aa lo believe Ihe
fact to betme, when it isnotso: then it cornea
to he a progier motion fir a new tnal, becauae
the verdict is contrary to evidence. Or tba
jury may give credit \n such circnmstanceii,
which either have not been proved, or are nK
true, and they may ageravale the damagcy
upon lliat account : they then act under a mia>
take, which most certainly ought lo be rectified.
That is the ground upon which the present ap-
idication is tnaile. Bui if you consider it u
your own mind, it will oecesaarity result to thia
propnsitioD, that the jury hare Ibuod a fact
contrary lo eiiilence. As my brother Davj
u aware ihat there might be some difficulty
mamlaining thai proposiiinn, he put it ints
BDOtber shape, and aaid it was a circumstancs
Ihat was proper for the jury to consider a* a
gronnd for mitigaling the damagea ; inilead of
ahich, they bad fron Ihil oiicunutuieo >(■

177]

Fabrigas o. Mostyiu

A. ». 1775.

[178

fviTfttotf the damagM. So that, upon the

wMe, it will still rfcar to the same propoti-

tiM, that the J have acted upon a mistake, in

fifing aari|^avatt*tl damages upon a fact, which

ihfy hare fooml contrary to evidence. For

ftqr were ananimoasly of opinion, that what

Ik plaintiff did, was not done with any sedi-

iKm vie^, or tending thereto, but was an

flvaest preasing of a suit to be relie?ed from a

frievanee supposed. That was the enquiry

ttey were particularly ordered by my brother

GsuM to make ; and that was the answer that

Ihcy gave. Now, if in point of fact, they were

m mistaken, as that they ought not to ha?e

ken of opinion that the plaintiff did not act

with a seditious ?iew, but was only pressing

kiportanately a suit for relief from a supposed

gnerance, then they have given damages upon

a fake supposition ; they have given such as

ue DOl piroportionate to the* injury received.

The argament then seems to me to come to

this, that they have believed a fact which they

aagbt not to have believed, because the proof

was against it. We are therefore to consider,

whether the damages ought to have been raised

ss hiph or not. And there are two cases in-

Mted upon. One is the behaviour of Mr. Fa-

kigas, as tending to raise disorder and sedition

k tbe goreniment. The other is the conduct

af |overoor Mostyn, in extenuation of damages,

is acting under a mistake, and having taken

Ae best adnce the nature of his situation

admit. In order to understand this, we

for a moment the situation the go-

vvMBeBt stood in.

TUa island was conquered in 1708. The
nB|nererB (no matter in what mode) had
• i^|bl to impose what laws they pleased.
^■Btbe cession of the island, by the eleventh
artide of the treaty of Utrecht, part of the right
if the conqueror was giren up ; for it is stipu-
falcd, that the inhabitants shall enjoy their
bsBuurs, estates, and religion. So far there-
Ike the right of the conqueror is restrained ;
bsl with regard to their laws, there was no
MipolatioD, nor was it ever understood so by
Mwr people. It is well known that the earl
if Stanhope and the duke of Argyle, as pleni-
potentiarieii upon this subject, and afterwards
■y lord Boliogbroke, did assure the inhabi-
tttls, that they should enjoy their own rights
ni privileges, still subject to the supreme do-
toiioo of the conqueror. Those rights and
privileges which thev were to enjoy, were the
flSlabKshed municipal laws of the island, under
soeh regulations as the legislature of this conn-
^ should impose upon them. This assu-
riBce, made at that time, has been attended to
kr government ever since ; for they have had
m enjoyment of their privileges so assured to
Ibem, and have had such regulations, as the
gsvcrument and the nature of iJTairs have from
ttBc to time required.

The king in council, in the year 1752, (upon

wcral complaints having been made a^inst

fcacfml Anstruther, who had been the gover-

isr) made tbe regulation, as it ia called, of

VOL. AX.

1753 ; by which the king in council intended
to provide afifuinst that oppressive power of the
governor, which the inhabitants had com-
plained of, and that the people of the island
should be at liberty to sell their wines at the
price fixed by the jurats of (he different ter-
minos.— -These powers were soon found, or
thought, to be abused ; which occasioned a
representation to he made by tbe then governor
to the king in council, which produced the new
regulation of 1753, which leaned on the other
side, as the natives said : for as the former was
supposed to give too much power to the magis-
trates of the island, making them independent
of the governor ; so this threw too much power
into the hands of the governor, and laid them
too much at his mercy.

There is one thing mentioned in my brother
Gould's report, which I think proper to take
notice of, because it should not be so mintaken.
Oueof the witnesses in the cauise represented
to the jury, that in some particular cases, espe-
cially in criminal matters, the governor resident
upon the island does exercise a legislative
power.* It was gross ignorance in that person
to imagine soch a thing. 1 may say, it was
impossible, that a man who lived upon the
island, in the station he had done, should not
know better, than to think that the governor
had a civil and criminal power vested in him.
In the island, the governor is the king's ser-
vant : his commi^»ion is from the king, and
he is to execute the power he is invest^ with
under that commission, which is to execute the
laws of Minorca under such regulations as the
king shall make in council. How does it stand
after the conquest of this island in 1757, by
the French, and the relinquishment of it upon
the peace? When general Johnston was sent
as deputy -governor, he thought fit to make a
new regulation. Now, I conceive, it was a vain
iman^ination in the witnesses at the trial, (for
we don't want to go to Minorca to understand
the consitution of that island) it therefore was
a vain imagination in the witnesses to say, that
there were ^^e terminos in the island of Mi-
norca. I have at various times seen a multi-
tude of authentic documents and papers rela-
tive to that island, and I do not believe, in any
one of them, that the idea of the arraval of St.
Phillip's being a distinct jurisdiction was erer
started. Mahon is one of the four terminus:
ISt. Phillip's and all the district about it, is com-
prehended within the termino of tl'Iahon. But^
however, as it happens to lie near the glacis of
the fortification, and the governor's power (I
don't mean his legal authority) being there
greater than it may be in more distant parts of
the island, there has been a respect shewn him,
a decency |>erhaps to the governor, which has
prevented the magistrates interfering without
his knowledge. But to suppose that there is a
distinct jurisdiction, separate from the govern-
ment of the island, is ridiculous and absurd : it
is what 1 never did hear of, till it was men-

N

* Vide Mr. Wright's evidence, ante.

179J

14 GEORGE IIL

Adionjor Fabe Impritmment-^

[180

tiooed in my brother GouM's report. Geneial
Johnston made an alteration in the arra? al of
St. Phillip's, which is a district of a luile or two
in circamference, with some few hundre<l in-
habitants. He divided this into a subdivision
of four other districts, and annulled by his own
ttothority the regulation of 1752, respecting
the aiode by which the wines were to be sold.
jia far as appears in this cause, he did that
without authority. If he had the sanction of
gofemment, his instructions should have ap-
peared, if the defendant intended to a? ail him-
self of them. I only mean to be understood,
that general Johnston had no authority to su-
persede the order of counsel by his own power ;
out at the same time it seems to be a very sa-
lutary provision ; aud if he had represented it
to tlie lung in council, no doubt but it would
have been approved of. I may say that
the inhabitants approved of it, because from
that time there never has been any complaint
of it. A few years ago there were a multitude
of coiBplaints brought against the arbitrary
acts, as they were called, and the oppressive
oonduct of this very general Johnston. They
were heard in a full coiuicil with a great deal
of solemnity for a great number of days,
and the council came into a resolution upon
then. This alteration of the order in 1763
' was not one of their charges against him ;
therefore it is clear, that the inbabilants of
the arraval did sot at that time think it an
oppression.

We come now to the point of time, when
Mr. Fabrira complained of it. i will not
condemn him for referring to the order of
council. He had a right to know whether this
alteration of governor Johnston was made by
authority, and whether it had the effect of the
power of the king in council ; therefore I do
not condemn the thing itself. Mr. Fabrigas
not having met wiih that success which he ex-
pected, (thouffh governor Mostyn, 1 think, till
the time of the arrest and commitment, acted
with a great deal of caution, judgment, and
prudence, I can almost say impartiality) and
not being satisfied with the opinion of the go-
vernor upon the representation and defence of
jlllimundo, which he had never seen, desires to
see it. His petition is rejected. This produces
a peevish application again and again to the
governor, and from one complaint another
arises. New grievances are supposed to be
received, not f nly by Mr. Fabrigas, but by the
inhabitants of the arraval at large : and 1 can-
not say that 1 approve of the manner in which
he did prosecute tiin claim : the effect of it is
another thing He certainlj did not obstrve
that decency and respect to the (i^overnor which
he oui;ht to have done. If the governor
did not attend to bis complaints, the kin^f in
council was open to him. We ail know, that
the way to the king in council has been pur-
sued very often, where the governor ban not
attended to the complaints of the Minorquins.
Mm expressions indeed have ihe appearance of
■ility and respect ; but yet ihvro is a petu-

lance in the continuing his petitions, which
n\\g\ki disturb the governor. Thus the matter
goes on ; this man still complaining, and ear«
nestly pressing of his suit upon a grievanco
supposed, till the secretary informed the go-
vernor, that the plaintiff would come next day
with his petition backed with 160 of the dealers
in grapes and wine. This it is that is supposed
to alarm the governor. Now 1 will not reflect
so much upon the honour of any governor of
the garrison of fort St Phillip's, as to suppose,
that he really tliought his garrison was m any
more danger than this court is at the present
moment; nor will I suppose, that if he did
think his garrison was in danger, that he would
have taken such feeble means to defend it.
The governor was disconcerted by the petu-
lance of the man, and was off his guard ; and
though he took the advice of those who were
the proper persons to advise him there, yet bo
must have too much sense to imagine, that tho
advice they gave him was sucli as he could
either in law or reason follow. I aai not
speaking now of the law of this island ; but
it is totally contrary to all principles, and
to every idea of justice in any country.
But the next day, this petition is presented
by four men only. Then there is an end
of all danger to the garrison and the govern-
meot ; and you plainly see no disturbance was
meant; nor is there any evidence of hiasolicit-
ing the people, of his breeding cabals among
them, or exciting any tumult or disorder. Tho
plaintiff had, to say the worst, only behaved
nimself ill in the mode of his importunity ; and
when he was open to the laws of that country
(for such laws I presume there mtist be) if m
had offended, he might have been prosecuted
in the courts of criminal jurisdiction. Whether
he acted improperly, from not having suc-
ceeded in prevailing upon the majority of tho
people to think he was ri^ht in desiring to in-
force the order of 1752, is not the question:
the people seemed to be content with tue varia-
tion, or deviation, made by general Johnston*
Now when all these matters are over, this man
is committed to prison ; and there is the first
complaint : and I must toke it upon this mo-
tion, that it was a false imprisonment. If tho
governor had secured him, nay, if he had
barely committed him, that he micht have been
amenable to justice; an'd if he had immediately
ordered a prosecution tipon any part of his con-
duct ; it would have been another question, and
might have received a different consideration.
But he commits him to the worst prison in tho
island ; and in a way which I cannot conceive
came from general Mostyn. What could in-
duce him to use a man Mith such hardship and
inhumanity P Was not putting him into prison
sufficient? Why i«as he to he deprived of tho
society of his wife and children, without being
allowed any thing for bis sustenance but bread
and uater, and to lie upon the floor P In this
condition he remains for six days : then comon
a ftec«>nd impriKooment ; for 1 take the whole
year to be a cuntiututtion of the fidse imprisoBr

Tahrigat v, Mailt/n,

Hb ta lh#D COnftneil im Uianl a aliip, .
r ibr iitn nf r hmiinlimfnl in t'ar(hiii;eDii.
r. MnsTvn wan teil ii>ii> lliia. iin-
■ IbatiU pncltcwuf iheUlanil tfl'Miiiorcn, b;
«Akh ii wu tinual to Imnish - I giiiiposp ihe
lU HfDi)n|iim* ibnuubl fit t» iilviw linn lo tliii
wmmitr. But ibt- ^trninr Umw th*i lie could
Nnwf imnrtsnn him for « iwelvemfinlh, than
tabeoBuU inflici lliulorlure; yet the liir- '
toe, u xpI) an haniiilinicnt, tma iliV nIH taw nf
HiMwrm, whirh fell of cnurip wlirn il came
itia nor {Ht^*iinii>n. Eriry BiiLrliiih |[o»ernor j
kww bf coiilil nnt inflirt tlic toriure ; ilie eoD-
ntiiiion of (bin couniry jiiit nn end Id lliat idea. .
•n - . .. II ilrBg(f(s(nn boinl ■ Blii|i, »ilb

~~i nf inliiimanily and liaril- I
• I cmiiiai iwlifce of i;Fneral Moitvn ; '
beamed inloafuiviun enunlry, anil of
i for I belieie there are ,
r-rfHMM ipirn, ibnt no peraoiis ihould an lo '
>^n, ar l>« iiermilied lo qoit ihe pnri nf Car- '
*yi. All liiR mntiniKiiice In Spain, I Ionic

CM ■ «Duliiiuance of llie falie imprison-
{ faaeauae e>ery cnnatraint upon nenonal
Smj, wilboul leK^I aulliurjiy, ii a lalae ioi-
OlMit; ami il a nptain leaies a sailor
1 ilr<rrt iKland, tlioiigli he is lell al liberty
■, trt Ibe keeplntj: !'■■>■ from, that place lo
'■ be bad a right by law to cociie. Ii an

A. D. 1779.
years. The Court was applied lo for ■ new
■Hal, upon rxc-Biire damsgcB. Wliol did iba
Cnuii say? (and I neier be«nl llieir JiidEineiit
in Ibnt rnatler arraigned) '* We are noi ilie JD-
diciitiirc lu delerniine upon the deliberate judj^
Jury, iipnn aurh a aiibjecl as Ihit.

kHfiaaiUnes
Irii|WD r

I proper cailae the ciiDfta nf jiiRlice
men ■aii is a judicial way eiercined any power
«bicb tiMiir Uwa wnutd hate snppDrteit, and
■MHl llir tax* nFUli* oountry nu|{lit not, what
Ikceffrctof that wniild have becu has nolliin^
M ilu OTib ibii oauie ; for nuw we take it upon
te KPneral Imuc, Not Ouilly. In thia case.
A* niD ha* been impritoned under circum-
flneaa »f ifreiit harditiip for Iwelre niontha,
■rfkefi rramlheRammdnicaliat) nfbia family
mt km own cuDcema. lu this lituaiino be
blag* tm aOiun ; «ud Ihe Jury huvu tbnii||;hl
•ilai^r3,0<io/.ilaDiagF«. ToIm sura, {1,000/.
baa unmenite lum foraMinorquin to recoter :
■y brMber Da*y Ibouijhl proper In une the
ttyaaaiim "f (U ueia\g an imtra^eoii» aiiin. To
«fi*ha( ■■ ibr talueafllM liberty nf a man'*
fnaiiu.aeclnded from hia braily. under circum-
■UMvurhaidibip, fur Iweire inonlbi, ia a (tiffi-
aill inaltvr. Men'a minla will vary tnucb about
it: I alimiUI ibiok one tbinft, another would
Ihink ■mlha. lu tl>i< cbm of penonnl wrontfii.
aha* Im* Ibe law aaid ? The law ban naiJ, Ihal
^fary of IHalle men iball he llie jnil^ea lo de-
itrmtttt aiHl avea* tbe comiiensaiinii for Ihat
^— pal «ra<i|[. \\ e cannul but rei-ollrcl what
pM*rd ia ih-a* iinfurlimaiF affair* ibal tiap|>#n-
alatout <lir wcrclary of uste and a |irlnier'a
bi]. A ■•■rtaai ia taken itp under a mltiake,
Ml earri'it l>< a brlUr tluiue llian liis own, la
M »>ib Uirri |>i..v.<iiuiH llian he had of hia
Dak. ao'l •• t.rdii-il briirr Ihan he wnuld have

Hove Ibejury eacrclspd their jiid:jti
there any iinpntaiion upon their mnduct ex-
cept Ihp Idea nf Ihe comppnaation not being
pro|inrtiuneil ? Not at nil." Hov, can a court
of justice, thai i* to determine npnn Uw, set a
value upon tliii, and lay, it ia wntngfF What
woiild be llie onaeqiience ofil? If we say tliii
ia nmng, we niuct ^ay irhal la righu Then
t*e are lo tell the jury, " You are not tn Gnd
S.OOD;." ■■ Mb] we find 3,000/ 1,000/, 500 (.
or 100/. r Tell ua wliere you tblnk we ahould
herlijlit?" "We muMnnl lellyon; we bar*
no authority to do that ; liul you itiual oot gite
oulrageoua ilamaifes." I'W tliiiugh 1 may
know in my own mind whereaboulu I abould
compeimta the Injurv, wilhoiilBByinK wbelher
it would he more or fesa tbui tbis, yet I caiinol
pretcribe tn the jury what I think the value of
perBonal liberty. But il is aald, that tbe go-
Temordid what he uould in hi« ailualion ; but
wsa miataben. If' be wni miniaken, it ia a

il was preasFd belbte the jury, and they paid
Gucb attention to it a« lliey thouglit proper;
and Iheretbre It would be totally evoking the
cause from ita pro|ier determinalion lo say, that
ifaejury ought lu give some other damsgea thau
ttiey hate. Aa lo the ground on which the
defvudani'a counEel have made this moiinii, it
arisea frooi an accident, and I ihink au acci-
dint which was very properly protlded for;
for bad it not been, thai the learned judge who
tried the cause had patticularly in lermi recotn-
meaded the cnnsiderslion ot' (his point to lbs
jury, and taken their answer, the defendant
could not hate had any ground lo apjily for a
new trial. In my opluion, the learned judge
did tery right, and acted with great prudence
and justice to the parties, and tu the future
questions that may arise in Ihiacauae; tiir it
liiuks aa if Ihe parlies from the beginning in-
tended tn apply either hare nr elsewhere. Now
il ia a terv ditferent question, whstber the go-
vernor of"^ Minorca, finding a subject mutinoiii
and seditious, and disiurbiog his ((overninent,
can ari-esi and imprison him? or, whether he
can justify whut be has done, the jury baling
found thai he was iieillivr inulinous nor aedi>
liousf Had they fomtd the contrary, ihatfact
tiiight have been taken inio cunslderaliun in a
euuri of JQBtice ; bui as ibcy liate exercised
thai jurisdiction thecontliiutlon has given ihetn,
I ililiik there aught not lo be a new trial.

nir. Just. Guufdwd, Ihat the Court was not
wariMiiied in deirrinuilug thai ihe damagea
ne>e exresaive, wiiliout bieakliig in upon the
fundumenial principles of the conaliiuUon.

Hr. Just. BlaiktCoae observed, that these
(laiuagea goqU uui he called angry or tiadialiv*

I8S]

H GEORGE III.

Actitmjor Fake Imprhonment'^

[tSft

Otroages, as the injury was at ontrtgeous as
the dama^ret could l>e ejccetsive.

Mr. Just. Narfs declared, that Mr. Fabrigfat
had been impriRoued and treated in such a
manner ihat he did not care to repeat.

The whole bench were unanimous in refuvin^
a new trial, and the rule wai consequently dis-
cbarj^ed.

Farther Proceedings in the Cause of Fa-
brigas and mosttn.

The Court of Common Pleas ha? ingf refused
governor Mostyn a new trial, be reported to a
Writ of Error, which was allowed on the 14tb
of December 1773.

On the 16th of December he was obUged to
put in bail.

A rule was ii^iFen to transcribe the record in
Hilary term, 1774.

The first Scire Facias issued in Easter
term.

The second Scire Facias issued in the same
term, on the 16tb of May, returnable in Tri-
mtv-terro.

Mr. Fabrigas, the defendant in error, was
•erfed with a summons on the 7th of June,
that the plaintiff mi|y|^ht have time to assi^
errors till judge Gould had put his seal to £e
bill of exceptions.

On the 8(b of June, judge Gould came into
the court of King's- bench, and acknowWd^fed
bis seal.— The errors were assigned on the 16th
of June. The defendant pleaded in nulla est
erratum on the 30th. — A Concilium was moved
for on the 31st of June. — It was set down for
argument for the first Friday in Michaelmas
term.

It was argued on Tuesday the 15tb of No-
vember 1774 ; and the record is as follows :

*' The Record of the Proceedings in Fabrigas

and Mostyn.

« The Writ of Error.

'* As yet of Trinity-term, in the 14th year
of tlie reigu of king Geoiige the third.

■*' Our lord the king sent to his trusty and
well- beloved sir William de Grey, knight, hii^
chief justice of the bench, his close writ, in
these words ; that is to say : George the third,
by the grace of Go<l, of Great Britain, France,
and Ireland, king, '-defender of the faith, &c.
To oar trusty and well- beloved sir William de
.Grey, knight, our chief justice of the bench,
greeting. . Forasmuch as in the record and
prooesA, as also in giving of jud^'ment in a
plaint which was in enr court before you and
youp associates, our Juittioes of the bench, by
our writ lietween Anthony Fabrit^s and John
Mostyn, esq of a plea ot trenpass, assault, and
iilittimpri^nment, as it m said, manifest error
bath intervened, to the great damage of the
•aid John, as by hiscomplaiut we are informed :
we, willing that the said error (if any be) be
doly amended, and full and speedy justice done
to the aaid parties in this befaalfi do comnHmd

you, that if judgment lie given therenpon, then
you send to us distinctly and plainly, under
your seal, the record and process of the said
plaint, and a41 things toucning the same and
this writ ; so that we may have them in fifleea
days of St. Hilary, wheresoever we shall than
be iu England ; that inspecting the record aad
process aforesaid, we may cause further to km
done thereupon for amending the said error, ••
of right, and according to the law and custooa
of England, shall be meet to be done. WitneM
oorself at Westminster, the 6th day of De-
cember, in the 14tb year of our reign, Hil. A. L,

" The Return to the Writ.

" The Answer of sir William de Grayi
knight, chief justice within named. — The re*
curd and process of the plaint within nnentionods
with all tnings touching the same, I send be*
fore our lord the king, wheresoever, &c. at a
day within contained, in a certain record to tbe
writ annexed, as I am within commanded,
5ec. WnxiAM de Grey.

*' Pleas. Inrolled at Westminster before air
William de Grey, knight, and his brethren,
justices of bis majesty's court of GomoMa
Bench, of Easter- term, in the 19th year of the
reign of our sovereign lord George the third,
by the grace of God, of Great Britain, FranoOi
and Ireland, king, d^^fender of the faith, and le
forth. Rolls 616 and 617.

"The Declaration.

** In the Common Pleas. London to «ril,
John Mottyn, late of Westminster, in the oount^f
of Middlesex, esquire, was attached to answer
Anthony Fabrigas of a plea, wherefore be
with force and arms made an assault upoe tlw
said Anthony at Minorca, (to wit) at Londett
aforesaid, in the parish of Saint Mary-le-Bew^
in the ward of Cheap, and beat, wonnded, aed
ill-treated him, and there imprisoned him, aod
kept and detained him in prison there for e
long time without any reasonable or probable
cause, contrary to the laws and customs ef
this realm, against the will of the said Anthony,
and compellml the said Anthony to dejiart freei
and leave Minorca aforesaid, where the nid
Anthony was dwelling and resident, and carriid
and caused to be carried the said Anthony frea
Minorca aforesaid, to Carthagena in the domi-
nions of the king of Spain, against the will ef
the said Anthony ; whereby the said Anthony
was put to great expence and trouble, and tbe
goods and effects of the said Anthony tliewi
were diminished, lost, spoiled, and consumed,
and the family of the said Anthony were
brought to great want and distress, and tbe
said Anthony, during all the said time, wee
thereby deprived of the c«imfert of his aaid
family : and also wherefore the said Johu witb
force and arms made another assault upon the
said Anthony at Minorca, (to wit) at Ltondott
aforesaid, in tlie pari*ih and ward aforesaid, aed
beat, woended, and ill-treated him, and ilwrne
imprisoned him, aod kept and detained hint
there in priteii for e long timt^ withoet any

185] ' Fabrigas o. Moityn.

NMooiMc or probable caiMe, cootrary to tho
kvo oo4l ooaioont of tbii realoi, id^iiMfc the
vill of the md Aoihoo j ; and did other wroo^v
tihiiD, to the ^reat daniai^ of the iaid Au-
^^mj^ and against the peace of our lord the
■lokiiig: and thereupon the said Anthony,
^Richard Gregory, his attorney, complains,
Ml the aaid John, on the first day of Septeni-
kr, IB the year of our Lord 177 1, with force
•ad anus, (to wit) with swords, sta? es, sticks,
•ad fislOy made an assault upon the said Ao-
dHsy, at Minorca, (\o wit) at lx»ndon aforesaid,
■ mt parish of Ht. Mary -le- Bow, in the ward
sf Cbeaf y and beat, wounded, and ill- treated
Msi, and then and there imprisoned him, and
bpt and detained him in prison there for a long
(to wit) for the space of ten months, with*

•at aoT reaaoaabte or probable cause, contrary
Is iha laws and customs of this realm, against
db will aC the said Anthony, and compelled
'^~ '^ Anthony to depart from and leave
iforesald, where the said Anthony was
dvrelliog aod resident, and carried and
to he carried the said Anthony from
aforesaid to Carthsgena, in the do-
«f the king of Spain, against the will
■f the aaid Anthony ; whereby the said An-
I then and there put to great expenoe
trovhie, and the goods and effects of the
Anthony there were diminished, lost,
apoiM and consumed,- and the family of the
Anthony were thereby brought to great
and distress, and the said Anthony during
tfaa aaid time was deprived of the comfort of
aaid family ; and also, for that the said
•o the said first dav of September, in the
aComr Lord 1771 aforesaid, with force and
(to wit) with swords, staves, sticks, and
BMule another assault upon the said An-
, at Minorca, (to wit) at London afore-
/in the parish and ward aforesaid, and then
there beat, wounded, and ill-treated him,
then and there iuiprisoned him, and kept
detained him there in prison for a long
>, (to wit) for the space of other ten months,
any reasonable or probable cause,
to the laws and custonns of this/ealm,
apiDst the will of the said Anthony ; and
thm and there did other wrongs to him the
■id Autliooy, to the great damage of the said
Aalhoay , and against the peace of our said lord
kin|f: and thereupon the said Anthony
that he is injured and hath sustained
to the value of 19,000/. And thereof
hehringvth suit, &c.

" The Plea*

** And the said John, by James Da^e^ his
mamey, comei and defends the force and in-
jary, and says he is n(»t'guitty of the premises
above laid to his charge in manner and form as
the aaid Anthony hath above complaineil there-
•f against him ; and of this he puts himself
apan the country, &c. and the said Anthony
dstb ao Kkewiiie. And for further plea in this
bthalf as to the making the said assault upon
^ nid Aathooy in the firat count in the said

A. D. 177S. [186

declaration mentioned, and beating and ilU
treating him, and imprisoning him, and keep-*
iog and detaining him in prison for the aaid
space of time in tlie said declaration mentioned^
sitid compelling the said Anthony to depart
from and leave Minorca aforesaid, and carry-
ing and causing to be carried the said Anthony
from Alioorca aforesaid to Carthagena, in tba
fiomiuion^ of the king of Spain, by the said
Johu al)ove supuosed to have been done ; he
the said John, by leave of the court here for
this purpose first had and obtained, according
to the form of the atatute in that case mmim
and profided, says, that the aaid Anthony
ought not to have or maintain his said action
thereof againat him the said John, becauae ha
says that he the said John, at the said tima,
&c. aod long before, was governor of the said
island of Minorca, and during all that time was
invested with and did hold and exercise all tba
powers, privile^, and authorities, civil and
military, uetonging and relating to the go? em-
ment of the said island of Minorca, in parts be-
yond the seas; and the said Anthony before
the said time when, &c. (to wit) on the said lat
day of September, in the year aforesaid, at tba
said island of Minorca aforesaid, was guilty of
a riot and disturbance of the peace, order, and
government of the said island, aod was endea-
vouring to create and raise a mutiny and sedi*
tion among the inhabitants of the said island^
in breach of the peace, violation of the lawa»
and in subversion of all order and government ;
whereupon the said John, so being goverdor of
the said island of Minorca as aforeaaid, at tba
said time when, &c. in order to preserve tba
peace and government of the said island, was
obliged, and did then and there order the said
Anthoiiy to be banished from the said island of
Minorca, and to leave aod quit the said island.
And in order to banish and send the said An-
thony from and out of the said island, did then
and there for that purpose gently lay hands
upon the said Anthony, and did then and thera
seize and arrest him, and did keep and detain
the said Anthony, before lie could be banished
and sent from out of the said island, for a short
space of time, (to wit) for the space of six tiays
then next following ; and afterwards, to wit,
on the 7th day of Sf ptemlier, in the year af<ira-
said, at Minorca aforesaid, did carry and causa
to be carried the said Anthony, on board a cer-
tain vessel, from the island of Minorca afore-
said to Carthat^ena aforesai<l, as it was bwful
fur him to do for the cause aforesaid, which ara
the same, making the said assault upon tha
said Anthony in tht* first count of the said de-
claration mentioned, and beating and ih-treat-
ing him, and imprisfoning him, and keeping
and detaining him in prison for the said space
of titnc in the said first count of the said decla-
ration mentioned, and compelling the said An-
thony to depart fri»m and leave Minorca afore-
said, and carrying and causing to be carried
the aaid Anthony from Minorca to Gartbagena,
in the dominions of the king of Spain, %^ hereof
the said Anthony hath aboveeomplaiut J against

187J

14 GEORGE III.

Action Jor False Imprisonment'-'

[1S8

him: and this he is retdj to ferify. Where-
ibre he preys juilgmeot it' the said Anthony
ought to have or maintain his said action there-
of againxt him, 5ec. without this that the said
John was guilty of the said trespass, assault,
and imprisoninent, at the parish of St. Mary le
Bow, in the ward of Cheap, or elsewhere out of
the said island of Minorca aforesaid.

'* Thomas Walker.

*< The Replication.

** And the said Anthony, as to the said plea of
him the said Juhu, by him secondly above
pleaded in bar, as to the said assaulting the
nid Anthony in the said first count of the said
declaration mentioned, and beating and ill-
treatiutf him, and imprisoning him, and keep-
ing and detaining him in prison for the said
apace of time in the said declaration mentioned,
and cump«*Uing the said Anthony to depart
IVom and leave Minorca aforesaid, and carry-
ing ami causing to be carried the said Anthony
from Minorca aforesaid lo Carthagena, in the
dominions of the king of S|uiin, by the said
John above done, protesting that the said plea,
and tiie roattera therein contained are insuffi-
cient in law to bar the said Anthonv from
maintaining his said action against the said
John. For replication in this ^half, he saith,
that the said Anthony ought not, bv reason of
any thin^ bv the said John above in pleading
alleged, to be barred from havini^ his said ac-
tion thereof maintained against him ; becanse,
he saith, that the said John, of his own wrong,
and without atich cause as the said John hath
above in his said plea alleged, on the same day
and year aforesaid, at London aforesaid, in the
parish and ward aforesaid, assaulted the said
Anthony, and beat and ill-treated hiin,ttnd im-
prisoned him, and kept and detained him in
prison for the said space of time in the said de-
claration mentioned, and compelIe<l the said
Anthony to depart from and leave Minorca
aforesaid, and carried and caused to be carried
the said Anihony from Minorca aforesaid to
Carthagena, in the dominions of the king of
Spain aforesaid, in manner and form as the
said Anthony hath above complained against
him ; and this he prays may be enquired of by
the country. And the said John doth so
likewise. John Glynn.

" Award of the Venire.

** Therefore, as well to try this issue as the
said other issue between the said parties above
joined, it is commanded to the sheriffs, that
they caiibe to come here, in three weeks of the
Holy Trinity, twelve, &c. by w hom, &c. and
who neither, &c. to recognize, Sec. because as
well, ^c.

" At which day the jury between the said
parties of the plea aforesaid, was respited here
.until on the morrow of All Souls then next
following, unless sir Henry Gould, kni^h , one
of the king*K juHtices of the bench here as-
■igned by rorm of the statute, &c. should first
eooei 00 Fndaj the Sod of July last pest| ai

the Guildhtill of the city of Loodoo. And
ROW here at this day cometh the said Anthony^
by his said attorney, and the said justice, before
whom, dkc. hath sent here his record io thcae
words.

«(

The Postea.

** That is to say, afterwards, on the day and
in the year, and at the place within- raentiondly
come as well the within- mentioned Anthony
Fabrigas as the within-named John Mostyn, by
their attornies within-named, before sir Hearv
Gould, knight, one of the justices of the benco
within- named, and certain of the jurori,
whereof mention is within made, summoned to
be upon that jury, (that is to say) Thomas
Zachary, Thomas Ashby, David Powell, and
Walter Ewer, being required, come, and od
that jury are sworn ; and becanse tlie rest of
the jurora of the same jury do not appear, there*
fore eight other peraons of the by-standcre,
being by the sherifls within-written hereuolo
elected, at the request of the said Anthony, ami
by the command of the said sir Henry Ooald,
are now newly set down, whose nanotes are
affiled in the within-written pannd, according
to the form of the statute, &c. which said
jun>ra so newly set down, (that is to say) Wil-
liam Tomkyn, Gilbert Howard, Thomas Boal-
by, and John Newhall, John King, Jaaaea
Smith, William Hurley, and James Selby,
being also required, come likewise, and, toge»
ther with the said other jurora before inipaa-
nelled, are tried and sworn to speak the truth of
the mattera within contained ; who, upon their
oath sav, that as to the firet issue within-joined^
the said John Mostyn is goilty of the premises
within laid to his charge, in manner and fiim
as the said Anthony hath within complainedl
against him : and as to the other issue within
joined, the said jurora on their said oath further
say, that the said John Mostyn, of his own
wrong, and without such cause as he hath in
pleading within alledged, on the day and in tha
year within mentioned, at London, in the parish
and ward within mentioned, assaulted the said
Anthony, and beat and ill-treated him, and im*
prisoned him, and kept and detained him in
prison for the space of time in the within de>
claration mentioned, and compelled him the
said Anthony to depart from and leave Minorca
within roentifkoed, and carried and caused la
be carried the suid Anthony from Minorca
aforesaid to CarthaGfena, in ihe dominions of tha
king of Spain within mentioned, iu manner and
form as he the sdid Anthony hath by his repli*
cation within alledged ; and ihey aasess the
damages of the said Anthony, by reason of the
premises within specified, besides his coats sod
charges by him laid out and eiuended aheiit
his suit in this behalf, to 3,000i. and for his
said costs and charge*;, to turty shillings.
Therefore it is considered, that the said An«
thony recover against the said John his da-
mages aforesaid, to 3,000/., and UL bv the
jurv aforesaid, in form atoresaid asseascdy and
88/. 10 thesakl Anthony, at his leqacst, ibr thn

J89]

Fabrigoi v. MMyfU

A. D. 1773.

[190

CMfti and chftrfpes aforesaid, by the Court here
ftrndrease adjudged ; which said damages in
Ike whole amouot to 3,090/., &c. Afterwards

« at is to say) before our lord the kiog at
citminster, conies the said John Mostyn, in
baprouer peraon, and says, that at the trial of
Ikaid caoae before the said sir Henry Gould,
Isfhtt the counsel of him the said John Mos-
t^ proposed certain exceptions to the ophiion
• Be aaid sir Henr^r Gould, which exceptions
■we written in a hill, and sealed by the said
■%e; which bill of exceptions the said John
Mtya now brings into this court ; and prays
i writ of our lord the king to the said sir Henry
Gaald, to eonfesa or deny his seal so put to the
■id bill of exceptions, according to the form of
Iha statute in such cases made and pro? ided,
vbicfa writ is granted to him returnable iu 15
^ta firoiD the day of the Hoi v Trinity ; at
vhidi day, before our lord the king at West-
■iwatfr, conies the said Johu Mostyn in his

S«r pamn ; and the said sir Henry Gould,
[bt, likewise in his proper person, comes
acknowledges bis seal put to the said bill
tf ooeptknia, which bill of exceptions foUowa
■ tiMao worda.

<< The Bill of Exceptions.

^ That ia to say, on the morrow of the Holy
TWnity, 13 Geo. 3. Be it remembered, that in
Aatenn of Easter, iu the 13th year of the
MfB of our sovereign lord George the third,
■aw kin^ of Great Britain, and so forth, came
Aashaay Fabrigaa, by Richard Gregory hia
MHBCjt into the court of our said lord the king
if Iho Bench at Weatminster, and impleads
Uoatyo, late of Weatminster, in the
of Middlesex, esq. in a certain plea of
on which the said Anthony declared
bim.

[Tbe declaration, plea, and replication, are
act out verbatim, which, to avoid repeti-
are now omitted. Af^er. those pleadings
the bin of exceptions proceeds in these words.]

** And afterwarda (to wit) at the sittings of

Ma Priua, bolden at the Guildhall of the city

af London aforesaid, in and for the said city,

Mom the bon. air Henry Gould, knight, one

ef the joatioea of our said lord the king of the

Bench, Thomas Lloyd, esq. being associated to

him aoDording t/o the form oC the statute in such

caae made and provided, on Monday the 12th

day of inly, in the 13tli year of the reign of

ear aaid lord the now king, the aforesaid issues

aa joined between the said parties as afuresaid,

fsme on to be tried by a jury of the city of

Landon aforesaid, for that purpose duly iin-

faaoelled ; at which day came there as well

the aaid Anthony Fabrigas as the said John

Maatyo, by their attornies aforesaid. And the

JBiora of the jury aforesaid, impannelled to try

Ibe said iasuea, being called over, some of them,

asaKly. Tliomaa Zacbary, Thomas Ashby,

Usvid Powell, and Walter Ewer, came aud

acre then and there in due manner chosen and

Mvom lo try the aame issues ; and because the

OH af tba jurors of the same jury did not ap-

pear, therefore othera of the by-atanders being
chosen by the sheriffs, at the request of the said
Anthony, and by command of the said justice,
were appointed anew, whose namea were
affixed to the pannel of the said jury, according
to the form of the statute in such case made
and provided ; which said jurors so appoioted
anew, (to wit) William Tomkyn, Gilbert
Howard, Thomas Boulby, John Newball,
John King, James Smith, William Hurley,
and James Selby, being likewise called, came,
and were then and there in due manner tried
and sworn to try the same issues. And upon
the trial of the said issues, the counsel learned
in the Ulw for the said Anthony Fabrigas, to
maintain and prove his said declaration, on hia
part gave in evidence, that the said John, ai
the island of Minorca, on the 17th day of
September, in the year of our Lord 1771, aeized
and took the aaid Anthony, and without any
trial impriaoned him for the space of six daya,
a^inst his will, and banished him for the apace
of twelve months from the said island of Mi«
noroa, and caused him to be put by soldiers on
board a ship, and to be transported from the
said iaiand of Minorca to Cartbagena in Spain,
for the said space of twelve months : where-
upon the counsel for the said John Mostvn did
then and there, on the part of the aaid John
Mostyn, give in evidence, that the said
Anthony was a native of Minorca, and at the
time of taking, aeizing, and imprisoning him,
and banishing him as aforesaid, waa residing
in and an inhabitant of the arraval of St. Phil*
lip'a in the said island. And it was further

Siven in evidence on the part of the aaid
efendant, that the said island of Minorca
waa ceded to the crown of Great Bri-
tain by the king of Spain, by the treaty of
Utrecht, in the year of our Lord 17 13 ; and
that the article in the said treaty, relative to
the said island, is as follows : ** Rex porr(> Ca«
tholicus, pro se, hseredibus et successoriboa
suis, cedit parit^r corooie Magne Britannia
totam insulam Minorca;, ad e^mque transfert
in perpetuum jus omne dominiCimque plenisai-
mum aupradictam insulam, speciatlm vero
super urbem arcem portum muuitiones et si*
num Minorisenses, vulg6 Port Mahon, un4
cum aliis portubus locis oppidisque in prefatft
insult sitis ; provisum tamen est ut in articub
suprascripto quod nullum perfugium, neque
recpptaculum patebit Maurorum navibua bel-'
licis quibuscOnque in Purtu Mahonis, aut in
alio quovis portu dictee insulce Minoitse, qu6
orae Hispanise ipsorum excursiontbus iniestea
reddantur. Quinim6 commorandi 8olummod6
caus4 secundilm pacta convcnta Mauris eorCim-
que navigiis introitus in insulam pnefatam per-
mittetur. Promittit etiam ex su& parte regina
Magnee Britanniie, qu5d si quand5 insulam
Minorcce et portus oppida locaque in e^lem
aita a coronll regnorum suorum quovis modo
alienari in posternm contigerit, dabiiur coronsa
Hispaniee ante nationem altam qiiauictinque
prima optio possessionem et proprietatem pitr^
memoratce insule redimenUi. Spondet insup^

191]

14 GEORGE III.

Adkmjbf Fabe ImpriMnment^^

[19f

regria ma roajestM Magne Britannue, ie fitctu-
rsm lit iocobe omnen insuls pnelktoe taiii ec-
desiastici quam secalam bonis suis unirenis,
etboDOribaa tut6 pacal^ue fruantur. Atque
reli^onia Romaoa Catholics iiher uaut iit
permittetura, Otqae etiamejut modi ratioDefs in^-
■ntnr, ad tuendaio reliij^onein praMlictain to
cftdem insiilft, que ^ gtibernatione civili atque
ik legibas Magnie Britannie, penit&s abtiorrere
noD f ideaolar. Polenint etiam suis honoribiis
ct bonis frui, qui nuocsus Catholice majestatit
verTitio addicii saiit, etiamsi in eodrm perman-
•erint ; et liceat cuicunque, qui prsefataro in-
aulam relinquere ? oliierit, bona sua ? eodere et
liber^ io Hispaoiam transvehere." And it was
further given in evidence oo the part of the said
defendant, that the Minoroiiins are in general
governed by the Spanish laws, but, when it
•ervet their purpose, plead the English laws.
And it was further pvPD in evidence on the
behalf of the said defendant, that there are
certain magistrates, called the chief justice
criminal, and the chief justice civil, in the said
island. And it was further given in evidence
by James Wright, the secretary to the defen-
dant, that the said island is divided into four
districts, exclusive of the arraval of St. Phil-
lip's, which the witness always understood
to be separate and distinct from the others, and
under tlie immediate order of the governor ;
so that no magistrate of Mahoii could go there
to exercise any function without leave first had
from the governor. And it was further given
in evidence on the part of the said defendant,
by colonel Patrick Mackellar, that the arraval
of St. Phillip's is surrounded by a line- wall on
4>ne side, aud on the other by the sea, and is
called the royalty, where the governor has
greater power than any where else in the
island, and where the judges cannot interfere
but by the governor's consent. And it was
further given in evidence by £dwanl Blalce-
ney, who had been secretary to governor
Blakeney, that nothing can be executed in the
arraval but by the governor's leave ; and the
judges have applied to him the witness for the
governor's leave to execute pnicess there.
And ft was further given in evidence by the
■aid James Wright, that for the trial of murder
and other great offences committed within the
said arraval, u(M}ii application to the governor,
be generally appoints the asseaseur criminal of
Mabon, and for lesser offences the mustastaph ;
and that the said John Mustyn, at the time
of the seksing, taking, imprisoning, and banish-
ing the said Anthony, was the governor of the
said island of Minorca, under and hy virtue of
certain letters patent of his present majesty,
under the great Mai of Great Britain, bearing
date the 2il day of March, iu the 8tli year of
bis reign, whereby hi« majesty constituted and
appointed the said defendant to be captain- ge-
neral and governor in chief in and over the
said island of Minorca, and the town and gar-
rison of Port Mahon, and the castles, forts, and
other works and fortifications thereunto belongs
ing, and all other towns and pUces within the

said island ; and his majesty did thereby give
and grant onto the said defendant John Mos-
tyn, or in his absence to the lieutenaint-govser-
nor, or commander in chief for the time being,
all ffowers, privileges, and authorities, civil and
military, unto the said office belonging, to
have, hold, and exercise the said office, powers,
privileges, and authorities. dnrin^Jf his majesty's
Hill and pleasure; and the said defendant Jolin
Mostyn, or in his absence the lieutenant-go-
vernor, or commander in chief for the time
beinsT, arc to observe and obey all the orders
and instructions therewith given to him, and
all such further and other orders and instmc-
tions as shall he from time to time given to him
under his majesty's royal sign manual or sig<'
net, or by his majesty's order in privy-coun-
cil ; and his said majesty did thereby strictly
charge and command all his officers, ministem,
magistrates, civil and military, whatsoever, and
solfliers, and all others his loving subjects, in-
habiting or being in tbe said island, to obey
him the said John Mostyn, as captain-c^eneral
and chief governor thereof; and that the de-
fendant, being so governor of the said island,
caused the said Anthony to l>e seized, taken,
imprisoned, and banished as aforesaid, without
any reasonable or probable cause, or any other
matter alledged in the defendant's plea, or an^
act tending thereto. But neverthelera tbe said
counsel for the said John Mostyn did then and
there insist before the said justice, on the behalf
of the said John Mostyn, that tbe said several
matters so produced and given in evidence on
the part of the said John Mostyn as aforesaid,
were snfticient and ought to be admitted and
allowed as decisive evidence, to entitle the ssid
John Mostyn to a verdict, and to bar the said
Anthony of his aforesaid action ; and the said
counsel for the said John l^Iostyn did then and
there pray the said justice to admit and allow
the said matters so produced and given in evi-
dence for the said John Mostyn, to be concla-
sive evidence in favour of the said John Mos-
tyn, to entitle him to a verdict in this cause^
and to bar the said Anthony of his action afore-
said. But to this the counsel learned in the
law of the said Anthony, did then and there
insist before the said justice, that the same were
not sufficient nor ought to be admitted or al-
lowed to entitle the said John Mostyn to a ver-
dict, or to bar the said Anthony of his action
aforesaid. And the said justice* did then and
there declare and deliver his opinion to the jury
aforesaid, that the said several matters so pro-
duced and given in evidence on the |iart of the
said John Mostyn, were not sufficient to bar
tbe said Anthony of his action aforesaid, and
with that direction left the same to the said
jury; and the jury aforesaid then and there
gave their verdict for the said Anthony, and
3,000/. damages, Whereupon the said coun-
sel for the said John Mostyn did then and there,
on the behalf of the said John Mostyn, except
to the aforesaid opinion of the said justice, and
insisted on the said several matters as an ab-
solote bar to the said acliODt And inasmock

ISS] Fabr^eu v. Modyn*

■t tbo Mid ■ereral matters so produced sod

B'nm in evideoee od the part uf tbe said John
ostjn, mnd by bis counsel aforesaid objected
ami inaisted on as a bar to the action aforesaid,
da ant appear by tbe record of the verdict
afanaiil, the said counsel for the said John
Ikryn did then and there propose their afore-
saitf exceptions to the opinion of the said jus-
lier, and requested the said justice to put bis
m\ to tbw bill of exception, contsioing the
md aereral matters so produced and §p?en in
trideooe oo the part of the aaid John Mostyn
ai aferesaid, according to the form of the sta-
tala io such case miule and profided. And
Ibcieapoo the aaid justice, at the request of the
■id eouDsel for the said John Mostyn, did put
Ml ami to this bill of exceptions, pursuant to
Ihe aforesaid atatute in such case made and
piwided, on the said ISth day of July, in the
15th year of the reign of his present miyesty.

** Assignment of Errors.

** And hereupon the said John Mostyn says,
that IB tbe record and proceedings aforesaid, and
also io the matters recited and contained in the
ssid bill of exceptions, aud also in giving the
terdid upon the said issues between the parties
aferesaid joined, and also in giving the judg-
■eat aforesaid, there is a manifest error in
Ibif, that the justice before whom, &c. had no
authority, or jurisdiction to try the
or either of them, at the time
the aaine were tried as in the record
; nor had the said JuNtice any
faver or authoritv to take or swear the said
|MT tlierenn. There in also error in this,
Mtbe said justice before whom, ^c. at ami
^BB tbe trial of the said issut^ between the
fm^afonrsaid joined, did declare and deliver
Vk opinion to the jiir^ afnri'saiii, thatuhe said
■Cftral matters nienlioiieil in the said bill
sf exoeptiiius, and so as albresaid profluced
aad proved on the part of the Kaid Joiin Mos-
t^a, were nut upon the whole of the case suf-
Barat to iMr the said Anthony Fabrigas of his
aud action against him, aud with that opinion
kA the saoi*- to the jury ; whereas the Name
were suliicieot to bar the said Am bony of his
■i4 acu«iD- There is also error in tliis, that
ly the record aforesaid it appears, that the
tcrtict afuresaid was given upon the suid issues
Wcwreo the naid parties joined, for the said
Aaiboiiy Fdbrigas ; whereas l»y the law of the
Und, the verdict on the said issues ought to
hste b*-eii )(iven for the suid John Mostyn,
igsin^t the said Anthony Fabrigas. Tliere
ii a]<m ernn- io this, that it appears by the re-
csrd aforesaid, that judt^inent, in form afore-
■id ifiveii, was i^iven for the said Anthony
Fabrii^a^ aitainst him the said John Mostyn ;
wbi-rrii% by the law of the land, jndginent
asuebt to have been given for the said John
MiAl^n against the said Anthony Fabrigas.
Aad ihe said John MoMtyn prays, that the
jadgmeut aforesaid, for the errors aforesaid,
aad others in the record and proceedings afore-
, may be re? erted^ annulled, and altogether

VUU XX.

A. D. 177S. [I9A

had for nothing ; and that be the said John
Mostyn may be restored to all which be ha»
lost by occasion of the judgment aforesaid, &o*

"In Nullo.eat Erratum.

** And the said Anthony hereupon voluntarilj»
cornea in bis own proper person into court here,
and says, that neither in the record or proceed*
ings aforesaid, nor in the matters recited anit
contained in the said bill of exceptions, nor ii|
giving the verdict upon the said issuea betweea
the parties aforesaid joined, nor in the giving
the judgment aforesaid, is there any error:
and the said Anthony prays, that the court of
our lord tbe king now here will proceed to the
examination, aa well of the record and pro-
ceedings aforesaid, as of the matters recited
and contained in the aaid bill of exceptions and
of the matters aforesaid above assigned for
error, and that the aaid judgment may be in
all things affirmed. But because tbe Court of
our lord the king now here is not yet advised
to give their judi^ment of and concerning tbo
premises, a day is therefore given to the par-
ties aforesaid, to be before our lord the lung,
until on the morrow of All Souls now next
ensuing, wheresoever, &c. to hear judgment of
aud upon the premises ; for that the Court of
our said lord the king now here is not yet ad*
vised thereof, 5cc."

Mr. BuUer. My lord, there are aome atraoge
blunders upon tliis record, which thoui^b I
might make objections to, I will not mis-speud
the time of the court in slating them, because
1 can easily conceive myself that they will ad-
mit of a very short answer ; and therefore,
waving all objections to the formal part of the
record, the general question upon this record
will be, Whether an action can he maintained
in this country against a governor of Minorca^
for an imprisonment committed by him there,
in his character and office of governor, upoi^
the person of a Miiiorquin, even though the
governor should have erred in his judgment,
anil have been mistaken in the necessity whicU
he conceived demanded an immediate and re-
solute exercise of the powers of his office?
My lord, thongh this be the general question,
I shall beg leave in the argument to divide il
into two : first, whether in any case an action
can be maintained in the courts at W^tstminster,
for an imprisonment committed at Minorca
upon a native of that place: and secondly, if it
should be admitted that an action will lie
against any other person, yet whether such
action c^n be mahitained against a governor,
acting as such within the i>eculiar district of
the arraval of St. Pliillip's? My lord, iu the
consideration of both these questions, it may
be material to attend a little particularly to the
situation and constitution of the island of Mi-
norca, and arraval of St. Phillip's, within which
this transaction arose. As to that the Conrt will
be much relieved by the contents of this re-
cord; for it is l!here stated, that this island, till
the year 1713, waa a part of the dominioni of

195]

14 GEOHGE m.

AdUmJbr FaUe Impriaonmettt-—

[19«

the kingdom of Spiin, and then it was ceded .
to the crowD of Great Britain, reservini^ to the ,
inhabitants their property, their religion, and .
the laws necessary fur the preservation of their i
relii^ioo. It is further stated in the record, |
that the island is not governed by the laws '
of England, but by the laws of Spain ; and
that the arraval of St. Phillip's is subject only
to the controul and governnnent of the go-
Ternor himself, for in that there is no regular
law- officer ; there is no power to which the
subject can apply for justice but to the go-
Yernor himself; he is therefore the sole and
absolute judge within the arraval ; bis will is
the law there, and that district tt least is
t despotic go? emment. Whatever may be the
case in colonies and newly- discovered coun-
tries, I fancy it will not now be denied, that,
even in countries obtained by conquest, the old
]aws of the place continue in force till they are
changed or aller^ by the conquerors : much
less can it be contended, that In a country ceded
as this was, the laws of the place receive
any alteration till a change is declared by the
new sovereign. In the present case, there has
been no new code of laws established in this
island ; and therefore, indepciii^ently of the par-
ticular facts which are stated as proved in this
cause, 1 think I may safely assert it as an un-
deniable proposition, that this island is now go-
Terned by the same laws as it was before the
year 1713.

It is stated in the record, that 'the district
where the present cause 6f action ah»se is sub-
ject only to the immediate order of the go-
Ternor ; so much so, that no judge of the
island can exercise any function there, without
the particular leave of the governor for that
purpose.^ If the laws of the country where the
offence is committed are different from the
laws of this kingdom, it seems to me to make
DO difference with respect to the propriety of an
action, whether such country is subject to the
crown of Great-Britain, or to any other state;
for whether the fact be an offence or not, naust
be decided by the particular laws of the place
where it was committed, and not by the laws
of this country. This is a case whet« the law
of the place is different from the law of this
country; and therefore the question might
have been taken much larger than I have done
it : namely, whether the subject of a foreign
power, wh*o rules by laws different from ours,
can, for an act done in his own country, seek
redress in the courts of England. I believe
there are no authorities in support of such a
position ; and whatever may be the case, where
the laws of different countries agree, and where
the transaction has been between British sub-
jects, with a view to the laws of England, (which
was the case of Robinson and Bland, Bur. 1078),
that can be of no avail in the present instance :
for I take it in this case, if the action can be
maintained at all, it must be governed by the
laws of Minorca, and not by the laws of Eng-
land. It is said in the case of Robinson and
BUody that the laws of the plac< irhere the

thing happened does not always prerail ; and
there an instance is put by Mr. Justice Wil-
mot, that in many countries au action may be
maintained by a courtesan for the price of her

K restitution, but that no such action can be al-
iwed in this country. That is undoulitedly
true; for wherever the foreign law is contrary
to the law of God, to the law of nature, or
' contra bonos mores,' this Court will not recogw
oize it ; but neither of these is the present case.
My lord, besides, there is a great difference be-
tween entertaining a suit, and giving a remedy
upon an immoral transaction, and punishing a
man for an act, which, if done here, would be
deemed a crime, but, in the country where it
is committed, is esteemed none. In such t
case as that, the law of that country can never
be the rule by which this Court will govern
themselves, nor could they with propriety give
a judgment contrary to the known law of tbk
land ; and therefore, I should apprehend, that
in such case they would refuse to hold plea at
all. That seems to have been the opinion of
lord chief justice Pratt, in a case that came be-
fore him m the year 1765: that was the case
of Pons against Johnson, and a like case of
Ballister aninst Johnson. Those were two
actions tricS at the sittingi after Trinity-term
1765 ; an action of trespass and false imprisoiH
meet, bronghc by the plaintiff, a native of Ml*
norca, kgminst the defendant, who was gorer^
nor. The fkcts were, that iii Minorca there it
a court called * Trihimal of Royal Govemittent :*
the gOTemoris president, the assessor is judge:
the fiscal' is in nature of attorney gencnJi
during the pendency of a cause, but, when sen*
tence Is to oe Mssed, he has a voice as well ae
the assessor, if they agree, the governor ii
bound to confirm : if they disagree, the go-
vernor has the casting voice. It waa proved,
that this is the only court of criminal jurisdie-
tion, and that slanders are considered as cri-
minal suits ; that the defendant wrote a letter
to the assessor and fiscal, complaining that the
plaiiitiff had spread re|K>rts injurious to binii
and desiring them to enquire into it, and act ae
theji^ thought just and fit. Upon this letters
" dire

the fiscal directed an enquiry, and the
ordered ulaintiff to be imprisoned: he ap-
plied to oefendant Johnson to be bailed, wno
refused to bail him ; but it appeared that the
assessor was the person whose business it WtiB
to bail, though orders, as well for impriaoning
as bailing, often passed in the name of the court.
Upon this evidence it was objected, first, that
by the treaty of Utrecht, the inhabitants have
their own laws preserved to them, and are not
to be sued here, and therefore have no right to
sue here : secondly, admitting them to have o
right to sue here, the action is misconceived.
Ice. Lord chief-justice Pratt said, ** I think
it very improper such action should be brought
here, where foreign law is to be brought into
question : the bconvenience appeara bere^
where all the evidence we have had is tlio
testimony of one vritness; and I should think
if 1 were under the neceintj of proiioiiBciiBf

Fabrigas v, Moslyit.

V'W^.^J'^ ^>' pirole «*icknce ooght not

M&aiumcicDi, but a coinmiHion BbuuM ^o,

pi ilM k<* be certiBeil." Ai to ilie questiuo

■jHiiMlictiaa, his lordship Mid. " Itiacerlain

Mn tr* maoy cases of traotiKuy actions be-

Rmi Mibjecl Kod lubjecl, where, tbnugU llie

tMiariae* in a foreigD uounlry, the action

■5 le brouifbt here ; sucb as contract, trcs-

jM,are*M>Tab«iii]prigDDmEnlorioinefaind*:

irflh* rule ihal should guvero seemi to be,

ikt« Ibn subject miller ii nf that kind, Hint

ttlnr of DDlure ahnuU goiero all orer the

ndd. And I Ibiak, lliat a persou nlio is au

>.'3kb(iu)il liare a ti(;bl (o Biie here in cBics

'<il ku>4 : bat I tbink tbii ia not to be ex>

itS M tnutntory aciloni of erery kind,

-reibc! Um foci issoinlarmixeil wilblbecase

' 111 alter tlie caw, anil vary the legality ol'tbe

jntactioa." Ilia lurdibipihen expressed la me

M* DO the form of tbe plea; and finally

. .tinted ibc plaiatilfa ua auollier poiot. Aly

M, I cilc tbia caae Air the sake ofthe reaton-

■r eHilain««l ■■> <t ; lad lliere trai the opinion

mi tay learned judge, that an aclioa in this

■■Htry wmm iiDpro)ier, wh«re it was.to inler-

■nd tad I<1«oiled wilU the law of another

a^uy, as (o vary or chaoKe the legality of

ihlniKacrio*!. My lord, aonlher thing which

mora by *)>at c'^ *'r tl»i though lord Cam-

^tMDf Id Ihitik sn acliun may in some esses

baa a fanafi" traiiiiaclion, yet he confini:'!. it

ll ^BH ohnre llie tranaaclion happened lie -

INw •tilij'ct and suhjecl. This is not a trans-

fcwii otiicb bapjieiied tielween auhject and

I .■'■^Uiiii 81 of ihe realm of Engtaod)

> ••■ where the same law gnverns all

rkl; but it ia that pnrliculur case

<>v lonl Camdeu, so niixe<l with ihe

>i It alli^ii llie caae, and rarlea the

ilie IraoMciion. In crimioal coses

-> i>F dear, that an offence cum-

1 1 rf i|;n parts cnunol, unless under

' I •lutes, he tried in tliii country j

.<|iiiiiaannallie Court of Exi:hemier

r* ported in tit Vexey, S16, The

< ^<mpany iguinsl Campbell, 7tli of

I - Ku lufurmuiron was hrouglil in ibe

E(u>' I'' iU<' litorney General, that the defen-

Awi Diigbi diacoter bow he uaroc by the poa-

(r«Bd, Txdencv, cuntrirance, or oiher meaus ;
«ail It kifUirr ih»y weie not the property of tlie
bsdiaua, fruin whom tlicy were so taken by the
^fewtaai ami otliets. The court there aay ihe
nric ia, ilui ibiaconil ahall not ollige one to
AaMTTFT Ihal, wbicl>, iriieanBHera in ihe af-
6r)ut>", will s'>liji-ci bun to the puoishmcnl
t^ a criiD£ ; rt,r it n not niilerlal, that if he
■^■ef«ui Ihr ue^-utiie, it wdlhc iiobnrin: and
ibu he M puki'-hal-W, appeara from the caae of
ttmithti^': ftarkvr, Alk. 21. as ajuriadiction ia
wmad nCalciUla lur criminal lacis, where he

bare : tike the case i

in a raps in Ireland, and sent

imty tbe go' eminent tu be tried, al-
IIm ewn ol b- B. bare tiluMU lo do it.

A. D. 1775.

[198

My lord, here is a posilire o|>iuion, that in cri-
rnmal cases arising abl-uad there is no juris-
diction iu the copiinon lair court* In England.
The only thing to be done is to send the party
to tbe country where the offence was com-
mitted; but it ahall not be tried here, tfa man
were lo marry two wires in a country where
bigamy i* allowed, it can nerer be contende<l
in anch a case, if Ihe rnan came into England
he should be liable to he hnnged here, becauss
it is an offence in Ihis country, though nuna
where it was coilimilled. If a crime commit-
ted abroad cannot be tried hrre, upon what
ground shall a civil |iersonil Injury, done out of
Ihe kingdom, be tried here ? There are many
reasons why a crime committed abroad might
be tried here, and a civd injury not ; but do
reaaon occurs to me why a ciTilinjury should,
and a crime not. Ciril injuries depend much
upon the police and conalitulion ofthe country
where they occur, and the aame coudiict mn^
be Bclionable in one cutintry which la ju8ti&
able in another: but in crimes, as rourijer, per-
jury, and manyother uffencfs, Ibe laws of most
counliies lake lor their basis the law of (lod and
Ibe law of nature; and iherefore, though tha
trial be in a different country from that in whicb
the offence was cnmmilled, there is a greater
prohabitity ofUiKtributing equal justice in aucb
cases, than in ci»il actions. The case men-
tioned in Keilney, 20S, and canBinied in tha
41h Inslilute, W3 and i, is also an authority ib
myfamur. Il first of all gives a hialory of
sir John Stanley's family, and there fiie jioiuta
were resnlveil ; first, that the isle of Man waa
an ancient kingdom of itself, ami no part iif the
kingdom of'Engbud ; secondly, ibey aflirlDed
■he case reported hy Keilwey, anno ihe I-llti
Henry Ihe 8lh, to be law ; namely, Michael-
mas Ihe 11th Henry 8lh, an office was fumii),
that Thomns earl of Deib^v. at the limp of hia
deuth was seized of the fsle of Man iu fee j
whereupon the countess his wife, by her coun-
sel, moved In have her dower in the Chancery ;
but il was resolved hy Brudnell, Bronk, and
F ill herb erS justices, and nil theking'i connsef,
ihat the office was merely void, Itecause t^e
isle of Man was nn part of the realm of EnjJ-
laud, nor »as governed by the laws of Ibis
land ; but it wfs like to Tournay in Nurmaiidy,
or Guscoign in France, when they were in the
king of England's hands, which were merely
Out of the power of the Chancery, which waa
Ibe jilace to endow the widow, icv. Theii
goevon, and sajs, it was rcHuUed hy thera,
that ncilher the alaiute of William the ad,
dc dimit canditianuMmt, nor of Ihe STih qf
Henry tlie Uih, of willa, nor any other general
act of parliament, did extend to ibe isle of Alan,
for the cause aforesaid. 8o tiiere il is held,
(hat fur a right in the ifle of Man, though U
was part ot the terrilorial dominions uf Ilia
crown of England, yet Ihat no suit wnuhl lie
inlhecnnrtofChanciry ; and that this suit iO'
diluted by the widow fur htr dower there wiis
improper, and they could not culerlaiuil. Tba
caaca where iba courts uf Wealmiusicr hat*

i99J

li'-QfiORGfe III. AcHainJor FaUe impr^onvMnt—

[800

taken cognizance of transactioDs arising abroad,
and entertained actions founded on them, seem
to be wbolly on c«mtract8, where the lawa of
the foreign country have aj^reed with the laws
of England, and between Eiii^'lish subjects:
and even there it is done by a quaint lei^ral fic-
tion ; namely, by sup|>osing, under the sane •
tion of a videlicet, that the cause of action did
arise within this cotuiiry, and that the place
abroad lay either in London or in Islington.
But where the contrary has appeared, namely,
that the place where the transaction did arise
was not in Limdon or Islington, there the
courts have said such matters were not triable
here. There is a pretty strong case arising
upon a demurrer in Lutwyche, 946, Davis
against Yale. That was an action for false im-
prisonment of the plaintiff in Port 8t. George,
In the East- Indies, in parts beyond the seas,
Tidelicet, in Loudon, in the iiarish of St.
)^lary-le-Bow, in the ward of Cheap. It was
iresolved by the whole court, that the declara-
tion was ill, because the trespass is sup|)Osed to
be committed at Fort 8t. George, in parts be-
yond the seas, videlicet in London, which is re-
pugnant and absuid : and it was said by the
chief justice, that if a bond bore date at raria,
in the kingdom of France, it is not triable
here ; so that judgment was given upon the
ground, that it appearing upon the face of the
record to be in foreign parts, the supposition
that it was in England was absurd and re-
pugnant.

In Ward's case, in I^atcb. 4, in debt, the
plaintiff declares upon a bill, bearing date in the
parish of St. Mary-le-Bow, London ; and upon
oyer of the deed, it bore date at Hamburgh,
and the writ was in detinet only. Serjeant
Bridgman objected, that although it was usual
to lay such actions in any place, to wit, in
Kent, London, &c. yet as tnis case is, that
cannot be ; because when any place is named,
it shall be understood primi facie^ that the
place named is a town, and not a particular
place, as a .house, as appears by 3 Ed. 3,
68, et Brev. 638: from whence it fol-
lowed, that Hamburgh here should be un-
derstood to be a town, which cannot be in Lon-
don ; and therefore the declaration was faulty,
^r not laying Hamburgh wiil,>.i London. But
** *^^ *rgned on the other side by Barnei-s,
^no look this diflVrence in ph^ading : " I con-
Jeaa that a place named shall be understood to
•t>e a city or town, as the seijeant has said, but
^^i^eribcless the date of the deed shall be un-
^etatood to be a particular place or a house ;
^nd iliererore, if an obligation bears date at
x^^'wf'i' «»" Callis-Sands, it shall be under-
oftiioJm m <>^' '*"'*« taverns in London, and not
Andin th ^^^^ beyond the seas, 21 Edw. 4. 26.
SJac A ^ <^**<^*^"« Wighansand Flowers,
Atblooe'L^^ R the dale of an obligation was at
tot belJ-'^'^^^ lreland,and therefore the action could
1 ^OitU^ ^^ '»«''^» inasmucli as Ireland cannot l>e

CQ It Jr^^ "^^ • **"* *^ " ''•*' **'*" '"" Athlone only,
H»e^fi^^^«««lf'^***''**«tcouldbe8ued here, be-
" lone mightbe alleged to be in Eogland.

So here in our case, if the date had l»een at
Hamburah, * in partibus traiismarinis,' it could
not be Nued here, inasmuch as it could not be
in Loudon ; but bearing date at Hamburgh
only, it may be understood to be in England.*'
Whiilock agreed with him: Brook faits, 0,
and so have been all deeds by experience.
10 Jac. an obligation dated at Elvin was sued
in this court, and the action laid in Kent and
allowed; and yet Elvin is in Poland. Dod-
deridge said, ** I agree also, if the deed beara
date in Litile Britain or in Scotland, it shall be
understood to be dated at those places ; so bera
being named in London, we, as judges, ought
to maintain the jurisdiction of our court, if the
caKe is not plainly and evidently out of our ju-
ristliction : and f(»r this reason we ought to un-
derstand Hamburgh to be in London, to main-
tain the action, because otherwise it would be
out of our jurisdictiou. And if in truth we
should know the date to be at Hamburgh
ouster le mere, yet, as judges, we should not
take notice that it ia ouster le mere.'* In this
csRc it does appear upon the record, that the
offence complained of was committed in parts
beyond the seas, and not in £ui;land. Mr
lord, the plea states, that it was committed m
the island of Minorca, in parts beyond the seas;
these are the words of tne plea; and the de-
fendant has concluded his plea with a traverse,
that he was not guilty in London, in the pariah
of St. Mary-le-UoM, or el^eu here, out of the
island of Minorca. Now, my lord, this stands
admitted by the plaintiff, because if he had
thought fit to have denifd the place mentioned
ill the plea, and which was absolutely essential
for the detiemlant to mention, because his Joa-
tification was a local one, (and though the
cause of action be transitory in its uatiii^, yet,
if the defence be local, the defendant has a
right to state it so in his plea, and by that
means make that local which l»efore was
transitory,) he should have made a new assign-
ment, or have taken issue on the place.

It was incuniltent upon the defendant to
aver, that what he had done was within the ar-
raval, because his authoriiy was confined to
that particular place : and therefore, however
unjustifiable be might be elsewhere, he was
justifieil there. That part of his alleiraiina
stands admitted by the plaintiff; therefore it
does appear from the rec«>rd, that the cause of
action did arise out of the kingdom, and con-
sequently, as Dodderidge says in L<itch, it
does arise out of the jurisdiction of this court :
and where it so appears, the judges cannot
help taking notice of it; for, as Lutwyche
says, as I mentioned before, it is not triable
here. Even in cases the most transitory, be-
fore the statute of Jeofails, if an action waa
brought in London, and there was a local justi-
fication at Oxford, the cause could not have
been tried in London. That was the caae in
Ist Saunders, S47, an action for words laid ia
London, charging him with having stolen plain
out of Wadharo-College, vis. ia London. Thn
ddendaiit jostifiet speaking the wordSi bacaosa

Fabrigat v. Mostyn%

liMpUiaiilFllole plate out nr\Vai1hnm>Ci>11eKe
< ittloni. It wns Bitmilleil iu ItiM cmc, thai
I >■ iwld have been ■ fatal pmir, btil il nul b«eii
I r the ■ti.tuU uf ieohWa. Now the sutule of
)»(«l« duv* Dbi extern! to Minnrca ; tlK^rtfore
<t^ tave aiti aunil entiTelj' upon llie rommun
Iu ; and hj that Ihe trial ii bud, nnil ibe ver-
ni f dill : (or lapptnlittf that this or any court
u Wrttmiiider ciiulil holit cognixance of nny
Ruw that nrisM abrokd, yet it shnulil not ha*e
Uai liitil in Lonilnii, hut ahoulJ hare been
1 ilie next Knglisb coiinly tn Minorca.

A. D. 1773.

[Sftf

IfUic law

it, Uwl l«r a inuriirr coininilieil by a t'treigiier
■a aanUier ciiuiilry itie criminal could not be

Cnhol farre, 1 am al a \m* Ibr a renaoo why
AiNilil he puoiilie^ here tor ■ treipan com-
"" ■ fHider like circumalances. In orJer to
t that doetrine, this ahiuiilily muat be
d tbr : it' Mr. fttn&tyn, who siooil there
m Mpaciiy uf a noreraor, anil hail the sole
'''a ami ^Ternineut of \\\\* place, liad
I Falirii^e guilly of an otTence which
d his lite,«uil hall punished him accoril-
r, be coulil not have he«n |jiiDiabeil ; but
« hv ha* (trnceeileil in a milder wa^, aud
MtliriMneil anil banished him, tlivrelore be

. of enlerlaininir such
dlMt tn ibis country are utany, and some
■ waulit certainly be iniulerable ; but
(Qtild ensue from
nittg Ihe aciiuu woold be rcry sli^it,
■BT: aud (he argument, • ab inconreni-
k* nrd Cuke nays, haa beta ever allowed
t rery forcible in our law. Now if ibe
~ ba maiolaineil here, il must be deler-
by the taw of tbii country, or by the
' tlie nUc« where the offence was corn-
It it he driermineil by our law, Ihat
Id Iw utyual indeed; for Ihen a man, who
iD|iellnf Iu regulale his conduel hy one
wftQtd becondemned by anoiher, which is
'■" npfonW. Ami yet tlie law of thit
ia ihe law ibe jdainlilf has ihunictit tit
ibia cause upon ; and 1 ilonlil not bill he
■mder tli« idra of Enjibsh liberly, lo-
la dMruy ibe Mini>ri|uiii cnnatitulioti.
Mlaraliim ia futiudrd on the law of Eng-
TIm imprisonment ii laid in ibe dtcla-
_ to W oanirary to tbe law and cuaiotns of
nalm ; » that Ibe law of Eniclaiid is Ibe
ianhM-h be sppcali, and by wbieh lie de-
))>>(•*« may lie deli-rmined. If an im-
iNMal i* oammilled there aif re^able to Ihe
of thai place, bul noi I'onwiDant lo ibe
■fthit realm, is ibat a Krnand for puiiish-
ibis country ? If il ia nut, the plaiuiifl'
inpparl hi« case npon the law of Kii|(-
be manner ha now alteinpla to do. If
■■ to be tried here by the law of
■Dw in Ihat law to be proved!' There
fasal Bi'ide of certifyiPK the law, and lill
rial il may nut l>* known what points of
M may br rfpiiaile lo inqnire iiitni wil-
ts caitiKii be mmpelted to attend, nor can
cewrl by ainr lueaas ubligc them to answer
; ■» Ibe defcDdaot would lUud iu lb« lilua-

tion of beinff ealleil upon l<> make his itelencr,
without the power of profini; either the law in-
ihe fads of bia case. If Ibis acliou succeeds,
erery FrencbiDun Ibat iscoiiltoedinlheBaslile,
and has the t;ood thrlune afietwanls la etcape
lo litis country, would be brinuitt^ aelious
a^ninsl the ufli<^ers Ihal confloe'l biiu ; every
loldier, who in time of war ibinkd hiniaelf
ill used by bia cmnmander, when hp re-
turns home will barrass tbe comioander nilb

that be may hare suffered abroad ; and it> the
end it would lie nothing less then thai a Ger-
man army Mould he governed by an £ni;lish
jury. I( would be necessary Ibr every general
officer to have a lawyer always al bia elbow ;
and even that, aa Mr. Mnsiyn has found by
fatal experience, would not be sufficient 10 se-
cure hiro from censure and punishment: fur
in this cause it was proved, that Mr. Mnslyn
had consulted all Ihe lawyers, and all the mili-
tary gentlemen in the iaUud, on the expediency
and necessity of the measure be look, before
he did what is nnw complained of, and that
they were all unanimous in their Ideas uf Ihe
absniule necessity of the business. Some of
them openly prolesied ibeir opininna, and the
resi acquiesced by their silence. The lawyers
went further, and underlmik la answer Jiir tbe
legality of ibe measure, even at the [leril of
their heads.

In tbe second place, fnppnning an action
could be maintained here at all liir a thing
done in Minorca, 1 shall beg leave lo sub-
mit to yniir lurdahip, ihal whatever might b«
the case of other persona, lliuiigh they might
lie liable lo an action here fur things done in
foreign parts ; yet that thegovernor or general
officer, who baa the immediate command and
absolute direction of tbe place, aliall not be
called u|ion in an action here tn answer for bia
conduct in that character. Minorca is an ab-
solute govemmeni. Tbe guvcmur for Ihe
time being IB Ibe immediate representative of
Ihe king there; and he, al least within Ihe
arravalnfSt. Phillip's, whalever may lie the
case iu the rest uf the islnuil, as all absolule
sovereigns do, goveroa aabelbinkk cnnvenient,
without being tied np In any fixed rules,
There it ia nul lawful for him to deviate from,
which ia no garerament wbrrein Ibe |i«war
over the lives, as well as the liU-riie!i snil pro-
peniea of ihe aubjeirt, is nut lesied in the su-
preme power; and whether ibat |H>wer be
lodged in a ainule person, as s mt'iiarch, or
many, asa psri lament or an aristocracy, what-
ever ihat snprenie |>nwer dues, il is accountable
fur to none bul God ; aud ihe drpuiy uf ibtt
power is answerable unly lo God and his prin-
cipal. Thai a judge cannot be piinitbeil for
any ibtng be does in bis capacity as a judge will
not. I believe, lie diipulHl ; il it be. there ar«
Ihe strongest ■uiburiiiea ii(ion that |Kiii>t. Ths
atrongeal perhaps in Sslkeld, 39G, and 9 Mod.
318; iu Ihe latter of which cutit-s, ihi- jui'ge
had heeu guilty of the mi'sl iiii«Misiiiuiioiial
conduct. My lord, that in Nalkcld ia Grocnvelt
Bgaiusl Burnell knd ulbers. Tbe cau <iaa

IDS]

14 GEORGE IIL AdiM/or False Impritonmeni—

[204

this : the eensors of the Colle^ of Pbywciaiie
in London are empowered to inspect, go?em,
and oentare ell nractifers of physic in the city
of London, and seten miles round, so as to
ponbh by fine, amerciament, and imprison-
ment. They con? icted Dr. GroenTeltof ad-
ministering * insalubres pillules et noxia medi-

< oamenU/ and sentenced bim to a fine of 20^
nnd Id months imprisonment. Accordingly,
the doctor was taken in execution upon this sen-
tence, and brought trespass against the officers
nnd the censors. And it was bolden by Holt,
chief justice, first, that the censors had a judicial
power ; for a power to examine, convict, and
punish, is judicial, and th^ are judges of re-
cord, becaase they can fine and imprison:
iocondly, that being judges of the matter, what
they have adjudged is not traversable; and
the plaintiff cannot be admitted to gainsay what
the censors have said by their judgment, which
is, that they were ' innlubres pillulas et noxia

< medicaments,' 4dd £d. 3, 17, 9tb £. 4, 3,
IS Co. S4, 25 : thirdly, that though the pills
•nd medicines were really wholesome pills and
good medicines, yet no action lies sgainst
Sie censors, liecause it is a wrong judgment in
tt matter within the limits of theicjurisidictioQ ;
nnd a judge is not answerable either to the king
or the party for the mistakes or errors of his
judgment, in a matter of which he has juris-
diction. It would expose the justice of the
mition, and no man fi'onid execute the office,
at the peril of being arraigned by action or in-
dictment for every judgment he pronounces.
The other case, which is in 2d Modern, 218,
is as strong a case, if an action oouM be main-
tained against a judge at all, as any that can
exist : that is, an action for false imprisonment.
The defendant pleaded specially, that there was
a commiflsion of Oyer and Terminer directed
to him amongst others, 9cc. and that before him
and the other commissioners, Mr. Peon and
9Ir. Mead,* two preachers, were indicted for
lieing at a conventicle, to which indictment
they pleaded Not Guilhr ; and this- was to be
tried oy a jury whereof the plaintiff was one;
and that after the witoesses were sworn and
examined in the cause, be and his fellovrs
found the prisoners, Penn and Mead, Not
Guilty, whereby thev were acquitted ; and
^id the plaintiff tnali te getterit in acquitting
them both against the direction of the C^urt in
matter of law, and against plain evidence, the
defendant and the other commissioners then
upon the bench fined the jury forty marlcs
a- piece, and for non-payment committed them
to Newgate. This was a case where a judge
had taken upon himself to fine a juryman, be-
cause he did not find agreeably to his direction,
and had commjtted bim to Newgate. Setjeant
Goodfellow, wbo ewied for the defendant,
-aaid, he would not ofier to speak to that point,
whether a judge can fine a jury for girmg a
▼erdiet contrary to evidence, since the case was

<* See their Case, vol. «, p. 951, and Bn-
AdTi Case, vol 6, p. 999.

so lately and solemnly resolved by all the judges
of England in BuHnell's case, that he could
not fine a jury for so doing. But, says he,
admit a judge cannot fine a jury, yet, if ha
doth, no action will lie against him for so doing,
because it is donees a judge: but the Court
told him he need not labour that point, but de«
sired to hear the anrument on the other side.
In this manner the Court would not suffer the
question to be argued, whether an action would
lie or not against a judge for that which was
done by him in that character. On the other
side it was urged, that what was done was not
warranted by the commission : but at last the
whole Court say, that the bringing this action
was a g^reater offence than fining of the plain-
tiff, and committing him for non-payment;
and that it was a bold attempt both against the
government and justice in general. Cord Coke
in his 19th Report, 25, says, that the reason
and cause why a judge, for any thing done by
bim as a judge, by the authority which the
king has committed to biro, and as sitting in
the seat of the king, concerning his justice,
shall not be drawn in question before any other
judge for any surmise of corruption, except be-
fore the king himself, is for this: the kinjf
binnself is de jure to deliver justice to all his
subjecte ; and for that be himself cannot do
it to all persons, he delegates his power to
his judges, who have the custoily and guard of
the king's oath. And forasmuch as tuis con-
cerns the honour and conscience of the king,
there is great reason that the king himself
shall take account of it, and no other. My
lord, within thearraval of St Phillip's, general
Mestyn was ^iui/enii« judge ; there was no|Da«»
gistrate within the place but himself; he mighl
appoint another, or might preside himself, ta
decide upon offences committed within that
district, it was so stated in the record, that it
was subject to the immediate order of the go-
vernor, and no judge could interfere there un-

deputed by him ; so that ibe

particularly
lute ffovemi

1

absolute government of that part at least of the
island rested solely in his hands. He acted
there under an authority committed to him bj
the king, and there ( which is the reason in the
19th Report why an action will not lie against
a judge) he had the custody and guard of the
king's oath ; and therefore, as lord Coke sayf,
if he acts improperly in the discharge of the
functions of his office, he is accountable to the
king only, and no other. My lord, there m
another case in the Uw- books, upon which I
shall beg leave to lay great stress; and at
present 1 am not aware how that case will be
distinguished, so as to make it inapplicable Id
the present: but 1 can find many circumstancea
even in that, which are much stronger against
the determination there, than any that exist ip
this case against a determination in iavoar
of the defendant. The case I allode to ia
that of Dutton against Howell, in ShoweHa
Paribmeotary CaMs, t4 ; that iaa writ of emr
upon a judgment given in the King's-baach.
ne case ftam the KconI is ihii } IheplaiaMF

4

Fahrign) v. Muiti/n.

A Dutton, for thitl he nllh seve-

V BNaulteil, beu, wDuaileil. aoil ini-

d bira, aoil look anil seized hi* gnuils,

■isoDciI the |'l«>iitiir for tbree m<inU)i.

kpleiM lofirtQiit guilty, aoil as (olLc

R iuslilicattiiii,thDl llietMfnilaiit al

I* ifUrernnr of BurbaJoe*, auil hcIs

lit conMiliitio^ liini govcroar ; lliai

e RiftlitDg this |Mteiit, aiiil before the

f tiir MHUlt, the defendant arrived ■(

I, and did lake upon him and exercise

It of Ihil anil llie olher i^lBiids in

leal •ni'nlitnied, till the flrht of Miiy,

'' ~ "liKd licence to reluru to En|f land ;

I W departure h« consiiiuted tlie

* Im hi* deputy -gOTernor, and ihat llie

i)[ii*l fu11uwlii){ the delendant arrival

I, in England; tbutthe 4ih of May,

^M'l drpiniirp, the plainiilT took

If theadminiMralion of the govern-

e i«Und of Darl>Bilues, and did un-

tatfiiMy and arbilrsiily execute ihal gnietn-

mtat and nSiee, to the oppreMion of the kioc's

■utgrdti Iliatal\«r ibervturnof liiedef.-odani,

ill' liUirjiilT al a ri)»iicil wib charged willi

. i;r in Ihe adniinialnilinfinf bis olfice,

1-^ ibe OBlh of nffice, not obseriing'

iia*i(^iion, aMuming the tiile of

:^<>ii^riii<r and altering decrepB in

■ ~...r,, , ihat il was ihennrdered liy Iheile-

' .-Uut iiiid c«u aril, that 'the plaiutifT should

' Fomaiiilcd. Tu thi« ihere is a demurrer.

Tliti conn judgtneni was giren tar the plain-

I i on wUith a writ of eiror t»as brougiit in

I ■' Hmka of liords ; and though the parlicu -

ffftsana of the judgment Ju the Hunsa of

I rtM do not appear further than can be col-

-1^1 froo) lUe arguinenl, yet tliere are aereral

-y^ in tlic i^umeul, from whence it may be

li^rinJ UiHm what grounds Ihe jiid^metit of

' • Hoaae of l»rda wt^nt. It wasargued upon

' ;>arl <<f tlie plaiotilT In error, that tbiiaotion

ii;,'ain*l him, because it was broiiij:lit

. Igr lhat which he did os a Judge;

•' <-<<«'[ri« 10 be ibe lame for one sort

,;ii anolher, Bud tbst tlii« (lersoD was

.;., .tijilf a gniemor, end so had all the

■itii ul a goTL-Tiior. As lo the pl«a, it was

railicd lii«t« »erp seieral inli>rniBlilieBln lhat.

''- ••■••■14 it niirlit be much shorier than il

" 11 ; hut ibat il suflicieDlly >h«ned what the

1 otitr in error's auihortly was. Tlmt this

• untieUiMI lie, because the tact it not triable

• rt 1 III* laws Ihere iimj be diffrreiit from

. TU*id... Di, action Res, tlnlesi il ven a

' ..'ii< as well ni causeless;

i.'^.d lhat an action can

■....rnor or liL^utenant of

. >iiiill>v thesnine reoMDii

^iii 11:11 ir. ...i-.i.i»c. He had a poucrtc

rko ju<lc<a< 'ki>'l ilifrefore tvas more than t

V- Oib#r tnnoua alledgfii ii)raiiihi Iht

.MioD IviDg bc-re are, first, tiisi all tlm reeordi

<'.'] ctiiuMCi! ars ihrre ; secondly, Ihe lawi

li Tr difff* lh>m wlint Ihey are here ; and go-

''^aeaWwMiM he very neak, and die pet'

1 «tilb Ikeni eery uneasy, if

A. D. 1T75.

f«»

-ere anbjecl lo lie charged with actions here for
iliat tbey do in those countries. In the argu.
meut ou the part of the defendant in error,
h pains are taken to shew, and it is iusisled,
Ibaltlie lawof Barbadoea is the same as iheJai*
of England. Aaotherthincthatisiherereliedbn
lliat Ibis was an action between two EnKlish-
;n, for an injury done by one Enghslimaa
Bgoiualanotlter. Thesesronndsare strongly r«-
led upon on Ihe part of the then defendant in
rror ; and tbey ahew at least tbal his couusel
houghl these diBtinclions tery necessary antl
nslerialin order losupportlheacliun at all: for
(bough tl is denied in one part Ibat the jaws <^
BnrlraJoes were the same as in England, yet on
theeiher side ilisinslsled tbey were, and rhal tiu«
action arose belween Eiigllshmun and English-
man, and tlial therefore the aclinn iiuglit lo ba
maintained in Ibis court. The Bouse of Lords
Boally determiaeil lhat the aclion could not |ia
here, and the judgment was giren for tlie plaio-
4iff in error. A» lo tlie form of the plea, it was
impossible for any one to aay a word in (indi-
cation of lhat, or to say thai Ihe judgment
could go upon any other ground than llial of
ibe dclcndaot's being gnvernor, and the olTenca
comfilaiued of committed by him in lhat cha-
racter. ThAt was Ibe substance of the case,
and upon tbsl the judgmenl of Ihe House of
Lnrds was Ibanded j for os lo Ihe plea, il ia ad-
mitted by Ihe counsel for tbedetendaul, tbalia
other respects it was bad upon the lace of it.
In tiiBt case, one argument relied on is, lhat it
wai an injury commitled by one Engliihman
against another. Now ibat is not ilie ca«e
here : for the |i1alDliff himself was a Minor-
quia ; he iraa so by birth, and had always
lited in lhat country. My lord, in Ibis case,
tlie argument cannot bold, that llie aclion shall
lie because Minorca it governed by ihe same
laws OS England^ for it is olherwise, and it Ja
sUled lo be goferned by Ibe law of Spain,
The acts upon which the cnDiinilrnQnt was
founded, in the case of Dulton ami Uowtll,
Mere done by the iilainliff in the choracler of
gOTecnor ol the place, which is an ultjaclion
against that case that will not hold in the pre-
sent ; for that is not Ibis case. Mr. Fabrigas
neierstood in the cliaracler that the plaintiff in
thai aciioo did, for there the acts complained
of were done by him iii the characler of go-
vernor; andllut was urged as oneground why
il should not be caniassed here. Uut ueilber
of these distinctions will holil in the present
case i but all Ihe innnnveuienccs pointed out
against the action in thai case will hold rery
■troDgly in tlie preseul. This is an aclion
brought agaiail the detendanl for what he did
BB judge; be had 0 power 111 lhat case to mak*
judges there, and therefore be was something
more tlifin a judge ; all the records and evi-
dente which relate to the transaction ore there,
and cnnont be brought here) Ihe laivs tbera
are ditferenl from what they are in this coun-
try ; anil, as it is said in (be conclusiou of lhat
argument, government must be very weak in-
deed, and the. penon* intrusted wiih ibcmreij

807]

14. GEORGE III.

Actum Jor Fake Imprkonment*^

[SOS

^neisy, if they are tbbject to be chamd with
■ctiont here for what they do in that character
ID tbbse cuuDtries. My lord, iioless that case
can be materially distin^iiisbed from the pre-
•ent, it will be an authority, and the highest
authority that can be adduced, to shew that
this action cannot be maintained, and will be a
sufficient authority to entitle the plaintiff in
error in this cause to your lordship's judg-
ment What answer may be given to that
case, or distinctions made between that case
and the case now before the Court, I cannot
at present foresee ; but if any are attempted,
when I hear them, I shall be at liberty to give
•uoh answers to those arguments, as may occur
|o me by way of reply.

Mr. Peckham. My lord, as the moderation
end mildness of gOTemorMostyn's proceedings
have been insisted on by Mr. Buller, I trust
it will not be thought irrelative to the present
question, if 1 shortly state to your lordships
the nature of those injuries which gave birth to
the action.

It appeared in evidence on the trial, that Mr.
Fabrigas was a natural born subject, being
born m Minorca subsequent to the cession by
the Spaniards at the treaty of Utrecht, and
prior to the capture by the French in the year
1758 ; that he was a roan of irreproachable
eharacter and good property ; not of the first
class of nobility, but, to borrow an expression
from colonel Bidulph, ' what we should call in
England a gentleman farmer ;' that he lived in
firiendship with the first noblesse in the island ;
and that he had a father living, and a wife and
five children.

Thus circumstanced and thus situated, be
was at the express command of the governor
taken from his house by a party of soldiers,
end dragged at noon- day through the streets
ct' Mahuu as a criminal, and thrown into a
^lungeon appropriated solely to capital of-
iemiers.

It appeared likewise in evidence, that he was
eonfined six days in this dungeon, with no-
thing but the boards to lie on, and with no other
tustenaRce than bread an<l wattfr, though felons
under sentence of death were allowed the com-
mon ft>od of the island ; that he was refused the
consolation of his friends, and denied all inter-
course with his family ; that on the seventh
morning he was hurriiMl aboani a ship, without
being permitted to lake leave of his cliildren, to
eee his wife, er to he acconiiuotlated with money
or other uecessiaries for his subsistence ; that
during this wliule time he had heard of no
charge against him, he had been confronted
with no accuser, he had not even seen his
judge : yet he was to lie banished to Cartha-
gena in Spain for the space of twelve months.
The senteuce was faithfully executed ; and
Mr. Fabrigas, having experienced that distress
which a moneyless stranger must necessarily
lie reduced to in a country whose language he
did not understaod, as fortunately for himself
ft lUMzpeGtedly to go? ermr tt^pttyn, «icap«d

from the Spaniards : 1 say unexpectedly, my
lord, because he liule thought that Mr. ^«^
briifas would live to tell an English jury of his
sufferings and the governor's oppression.

I thought it necessary to state these fiiCts to
your lordships, that you might judire of the
mildness of that treatment which Mr. BuUer
deemed it prudent to expatiate on.

It now becomes requisite for me to state the
conduct of the governor through the subse-
quent stages of his very extraordinary defence ;
and that I must do with some precision, as I
mean to contend, that the plaintiff in error by
that defence is estopped from agiuting the
question of jurisdiction.

The declaration was delivered in Hilary
term, 1773 ; a rule to plead was given, and a
plea demanded. Had the governor then plead-
ed to the jurisdiction, the question would have
come before the Court on a demurrer ; and if
that had been determined in our favour, a writ
of enquiry would have been executed, and Mr,
Fabrigas would in a short space of time, at a
little expence, have received a satisfaction ade-
quate to the injury, and would have been en-
abled to return to his friends and to his family.
But that would not have answered the purpose
of the governor, as Mr. Fabrigas would not
then have been delayed in England, nor have
been harassed with this expensive litigation.

Had the governor at the ex|nration of the
four days piraded in chief, he might then have
had the appearance of an argument in his ap-
plication to your lordshi|>s ; for it then would
have been competent for him to have said, * I
was hurried into this plea before I had time to
advise with my counsel, and consult upon the
propriety of aclmitting the jurisdiction.' But
ne has debarred himself even of this shadow
of an argument ; for instead of pleading at
the usual time, he applied to the Court of
Common Pleas for six weeks time to pleaili
Here then was an admission ef tlie jurisdic-
tion ; for he could not apply for time to plead,
unless the Court had cognizance of the matter.
1 shall presently state to your lordships some
cases, whose authority cannot be shaken, to
prove, that even after imparlance the questioa
of jurisdiction cannot be gone into.

But this was uot the only submission to the
jurisdiction of the Court ; tor he then applied
t(» put off the trial till after Easter Term. It
would have been nugatory, it would have beeo
absurd, to have prayed the Court to put off
that trial, which they had no |K>wer to try at
all. When Easter Term arrived, the governor
made a second attempt to postpone the trial ;
but the Court saw through his design, and,
satisfied that he did it onl)^ for the pur|»ose of
delay, they lieil him down by the rule to try
it peremptorily in Trinity Term, and that be
should not bring a writ of error for delay.

When he saw the Court of Common Pleat
would not lend him their iMiwer for so Imse m
purpose, lie next made application to the Court
of Exchequer for an injunction to stay pvo-
ceediDgBi and a biU wu filed ia Trioity iW^

Tabtigat v. Mostyn.

a i&ctiule IhM iolcDtton ; bul the bill »*s
i-miaKd on arguinelil, Hnd the goTcrnor wu
.: k-oglb Jriiifii in the subsequent sitlinifs to
MiL f¥liRill.rMii«eCuneoii,the<lelenilHDl'B
notr) dU nnt nbjcti (o th« juriBrliciluii, ihey
oi oM requni ijie leuined juil|{e to nontuit
UipliiDbff; bul tli«y sufirrml us lo |[° 'dI"

biwl iiiacle fgooA our deula-
re tradable, they then went
bM Lbra jiutifieation, nail callpil manj wji-
■«■!• in auiiiMiTt nt' it. Biii a Tetdict beiag-
livul for Iha pkinlilT, they icnilfred a bill of
oeqplton* ; anil lu last Mirtiaelma* Term,
Ihrr apfiliMl lo tht courl of Cuuitnon Fleas fnr
a »ew Irtti ; lir«l, li>r exceM of darnairea ;
mtMid\y, btcaiue llie Court bad Dojutisdiction
— diB iDud exiiaordiiiary reaaon |jerbaps tbat
••« KBa \pf*a i la detire a seouiid trial b«-
noM Uie L'oiirl bad no juriBdiclioa lo trv it
MalL

Govmor BIuRtvn ha>'mf( m aa msDT in-
Hmm ■ admitted ine jurjiidiclion of Ibe Court,
I HMal bcf; leaie hi atnie some aulliorities lo
nsr Inrdnhiji, whith prove ihat be ia now loo
bit Id lake any adiantage of a defect of juris*
dcnaii.

TheftrsK^ielahall mention to yourlordshipa

• la W(«Mnd in ibeyear InokaJD tbe tsd H.fi,

.'-T,iiW»r«lhercTrBiuRiiecial imparlance, 'lalvii

. noibiia alte^tioaibus el eiceptinnibua, latn

it l-reie ijtiani ad narrBtionen'; and IbeCoorl

.iM iMt kIIdw ibe defeadaol'a privilege, be-

I'V, aaya the cnie, by imparling be has ad-

■ unl ifie juriidiclioQ of the Court. ThJH

■'.nat it cunGrmed by lord Coke, iu bis cnm-

'^1 on ibe I9Slh aeclioD of LilllptDn, where

;-ikm^ of a pCTEOiial action he says. Ihree

.n are. to be considered; first, whpn the de-

-''zalilcl'eudi Ibe KTODij and force, beinaketh

■^t»W • p*'ty to ibe mailer; aecooilly, by

-' dalfitcc bf the ilamagf!* he aflirnieih, that

-t I'Uibtiff ia able tu iiio and lo recover da-

vmftm upon just t-anie; and by Ibu latil parr,

ik. • M dial which he ought lo defend when

N^wiicn he aii{[bt,' bt aKrmelh the juria-

teka of the Cnurt,

The caMi of Barrin^oti and Tenablva, 13 C.
1. rvforlml in air Thomas tlaymood, 34, ii
•B3r dew on tbi* bead. The dclendnnt after
lapatlMicc pleaded lo the jurisdiction ; the
■toialtfl ilmiurred : the juif^menl was, that
laAoitld aaawer over, for such plea cBODOt be
phatlirf after imparlance.

The next caac in order of lime is repotted in
t Mmim, m, Coi and St. Albon's, 3S Car, 2.
i piahiliitiaM wu prayeil for the city of Lon-
li^ kteaoN tb« dttendant bad oHered a plea
b Ikt nriatietiun ivhieb had been refused.
ImA tUcT {nance Hale »ud, " in transilorv
tttiDaa, if ilarjr will plead a matter tbat ariselh
•dI «f iba JMrmllctiun, and swear it before im-
f»ikttot, aad it be refused, a prohibition will
pi." Tberv was n case, aitid bi-i lordship, in
•b«kil was ai)jitd)(cd Ihat the jurisdiblionmual
k alcadcd aod <be pica aworn, and it must
Infin-c toiparliwn. Il waa also agreed

A. D. 1775. 1910

in that caae, " Ihat Ihe party choold nefcrho
received to aui^n for ernir, ihal il was out of
the juiisdiclinn, but it muki be uleadrd." I
hare in rain endeavoured In find idii raw ; but
it ia sufficient for n>y purpone to nbnerve, Ihat
lord chief JRsIice Hale would not have died it
unless it had btvn law. If llierrfiiTe ihe opi-
nion of that Kreat man, solemnly given in the
eoiirl of King's-beocli, issuibriritr. I am Mi
In say. that jroverniir Itl-islyn ool havio); plead-
ed lo the jurisdiction, <:annut now assifpi il for

In a few year) after, lord chief justice Hale
was ai(ain called upon to cunijiler tbii qneslion
in the case of Maodvke anil Slint, 3 Modern
3T3, ea Car. 'J. There waa a prohihilion lo the
aheriff'a court of London : ihe Biiir^eation was,
tiial ihe contract waa made in Mirldleitex,
theretbre the cause of action did nut arise
wilhin their juriadiclion. The cliief jiisiice
and justice Wyndham were of opiomn, " ihal
after ihe delendant had admitted ihe juriidic'
lion by pleading !□ the action, eapecially if
verdict and judgment past, llie court will not
examine whether the cause of action did arise
oul of the jurisdiction or not ;" on which b
prohibition was denied, and judgment was given
for the plsinliS'. I cannot di«tint{iiis)i Ihi*
from the present case; for as Ihe Court will
not examine whether Ihe cause of acfi'in did
ariaeout of the jurisdiction, there can benn ilif-
ferCDce whether il was in Midrtlesex or in Mi-
norca; and that question cannot now be asked,
because verdict and jurigmenl have pawed.

Lord chief justice Holt, in Llie case of An-
drews anil Holl, iilord Kaymontl. 884, said,
tbat he was counsel in tlie case of Deoning and
Norria (reportnl in 2 Leviolz, S43} and ihat
the Court held there, "that since the deleo-
dant had admitled the judge lobe a judge by a

Clea t* the action, he was estopped to say, that
c was not a judge afterwards." If Ihen a de-
fendant, by having submilled the decision nf
his cause In a judjfe. precluded himself from
ohjecliog to bim afterwanls, bow much stranger
ia the present case, where the itefendaol baa
Eubmilled his cause to the determinatinn of a
court which haa cogni7:ince over all tranaitory
actions. It is again laid down by lord chief
justice rtoll, '■ that there ought to be no plea
to ibo jurisdictiiiD after imparlance, and Ihat a
apecial imparlance admila the jurisdiction. "
Holt's Reports, Pasch. S W. and M.

1 must trouble your lordibipa with the casa
of Trelawney and Willrams, toshew, thai thers
has been but one opinion on Imlh sides of the
hall respecling a plea to the juriidiclion ; and
that equity and common law bate united in
saying, tbat if the jurisdiction is ootpteaded to,
it must be afterwards admitted. This case is
reported iu 8 Vernon 1113, Hil. 1704. The
plaintiff prayed an account relative to a tin-set ;
ibedelrndant Iniisled that he ought lo have
been sued in the Stannary-court. The lord-
keeper decreed an account; nod aa to Ihe «b<
jecliim Ihat the plaintiff nui,'bt l(
the 8lau nary -court, be said, " '

SU]

14 GEORGE III.

Action Jbr False Imprisonment^-'

[212

of its jarisdiclion, the defeDdaot must plead to
the jurisdictiuD, and not object to it at the
hearing."

There are a great variety of casea tendini; to
establish this p«*8itioD, that when a defendant
has once submitted to the jurisdiction, he has
for ever precluded himself from objectinfif to it.
To state them all, after the great authorities 1
have mentioned, would be tf» multiply the wit-
sessei without strengthening the testimony : I
■ball therefore only site a few passages from
lord chief baron Gilbert's History of the Com-
mon Pleas, which are decisi?e upon this part
of the argument. In page 40, speaking of
the order of pleading, he says, " the defendant
first pleads to the jurisdiction of the Court ;
secondly, to the person of' the plaintiff; and
thirdly, to the count or declaration. By this
order of pleading, each subseqoeut plea admits
the former. As, when he pleads to the person
of the plaintiff, he admits the jurisdiction of the
Court ; for it would be nugatory to plead any
thing IB that court which has no jurisdiction in
the ease. When he pleads to the count or
declaration, he allows that the plaintiff is able
to come into that court to implead liiiii, and be
may be there properly impleaded." Be lays
it down in a subsequent part of his treatise (p.
148,) as a positive rule of law, that, ** if a de-
fendant pleads to the jurisdiction of the Court,
he must do it inttanter on his appearance;
for if he imparls, he owns the jurisdiction of
the Court, by craving leave of the Court for
time to plead jn, and the Court shall never be
ousted of its jurisdiction afler imnarlance."
IV hen 1 find tnis doctrine in our old law-books,
when I see it ratified in modern times, and
stamped with the authorities of Coke, Hale,
Holt, and Gilbert, 1 am warranted in saying,
that goveriHtr Moslyn cannot now agitate the
question of jurisdiction : and if he cannot, the
judgment must be affirmed.

Notwithstanding which, I have no objection
to follow Mr. BuTler through the grounds of
argument that he has adopted; and J shall
endeavour to prove,

That an action of trespass can be brouglit in
England for an injury done abroad :

That Mr. Fabrigas is capable of bringing
such action :

And, that governor Mostyn may be the sub*
ject of it.

It cannot be contended, but that an action of
trespass is a transitory action, and may be
brought any where : *< all personal actions,"
says lord Coke, ** may be brought in any
county, and laid any where." Co. Litt. 282.

In the earl of Derby's case, 12 Coke, the
chancellor, the chief juntice, the master of the
Rolls, and iustices Dodderidge and WiOch, re-
solved, ** that for things transitory, although
that in truth they be within the county pala-
tine, the plaintiff may by Uw alle<l:^e them to
be done in any place within England ; and the
defendant may not plead to the jiiriMliction of
the Court, that thev were done within the
muoty psUtifie." This doctrine is not coo*

fined to counties palatine ; for lord Coke, in his
comment on Littleton, $61, 6, says, ** that ao
obligation made beyond the seas at Bour-
deaux, in France, may be sued here in
England in what place the plaintiff will.**
Captain Parker brought an action of trespass
and false imprisonment against lord Clive, for
injuries received in India, and it was never
doubted but that the action did lie. Even at this
moment there is an action depending between
Gregory Cojimaul, an Armenian merchant,
and governor Verelst, in which the cause of
action arose in Bengal. A bill was filed by
the governor in the Exchequer for an injunc-
tion, which was granted ; but on appeal to the
House of Lords, the injunction was dissolved.
The supreme court of judicature, by dissolving
the injunction, acknowledged that an action
of trespass could be maintained in England,
though the cause of action arose in India.

The next point to be considered is, whether
tliere is any disability attending the person of
Mr. Fabrigas, that incapacitates him from bring-
ing this action. But it will be requisite for roe
first to state, that governor Mostyn pleaded not
guilty, and then justified what he had done by
alledging, that the plaintiff had endeavoured to
create mutiny among the troops ; therefore he,
as governor, had a right to imprison and ba-
nish him. Your lordship observes, that, ac-
tionling to his own plea, he does not pretend to
justify what he has done as governor merely
from the plenitude of his power, but from the
necessity of the act, because the plaintiff had
endeavoured to create mutiny and sedition.
The learned judge who tried the cause, fore-
seeing the importance of this justification, re-
quested the jury, at the same time they brought
in their verdict, to find whether the governor's
justification had been proved. The jury found
a verdict for the plaintiff, with 3,000/. damages,
and, that the plaintiff had not endeavoured to
create mutiny or desertion, or had acteil in any
way tending thereto.

In consequence of that decision, the question
now is, whether Mr. Fabrigas, a man perfectly
innocent, can bring an action against gover-
nor Mostyn for this wanton and unparalleled
injury ?

As the law grants redress for all injuries, so
it is open to all persons, and none are excluded
from bringing an action, except on account of
their crimes or their country. Littleton says,
there are six niaiiuer of peritons who cannot
bring actions : Mr. Fabrigas is not included in
either of those descriptions. The only persod
that can bear the least resemblance to liim is
an alien, who, Littleton says, to be incapaci-
tated from bringing an action, must be born oat
of the ligeance of the king. Lord Coke, in his
comment on that passage, observes, that ** Lit-
tleton saith not, out ot the realm, but out of
the ligeauce; for he may be bom, says Coke,'
out of the rtfslm of England, yet within tb«
ligeance, and shall be called the king's liege-
man, for ligeut is ever takea for a natond-bora
subject." Co. Litt. 129.

813]

Pabrigat v. Mottyh.

A. D. 1773.

rsi4

Mr. Fabrigas was boro in Minorca subse-
fMol to the ceaaioD of Spain, consequently be
if a iuuaral-born subject ; every natural-born
Mbiect, accordinnf to lord Coke, owes alle^ance
li me king ; allegiance impliea proit* rtii>n, the
iM is a necessary consequence tif tbe other ;
ihekiiigrof England can protect only by his
kai ; bv tlia laws of £ng:land tiiere is no in-
JHj willioot a remedy ; the remedy for false
■friaooment and banishmf*nt is an action of
fecipBsa, w bich is a transitory action, and may
be btoogbt an V where, therefore riiBrbil)* brought
m tbe city of London, where this action was
aeloalljr tried, and Mr. Fabri|pi8 recovered
3,0001. damages. I hope your lordtthips will
JHtii^ me in saying, that this is a fair deduc-
JilB men eatablisbed principles.

Coke (Co. Litt. 130), mentions three things
vbcraby every sdbject is orote cted, * rex, lex,
' et reacripta regit* ;* and he adds, ** that he
that ia out of the protection of the king, cannot
ka aided or protected by the king's law, or by
tbe bing's writ." The natural inference to be
dnwB mm thence is, that he who is under the
blag's protedion may be aided by the king*s
law, Mr. Fabrigas is under the king's pro*
Iselioo, because he owes him allegiance, there-
ktt be may be aided by the king's laws ; con-
ssfseoUy is warranted in bringing this action,
lbs only aid the laws of England can afford bim
fcr that injury.

Mr. Buller has mentioned the case of Pons
mk Johoaoo, lieutenant-governor of Minorca,
aM aeefna to rely on wbat was said by lord
faaden <mi that occasion. If my memory does
Ml aialMid roe, tbe plaintiff could not make
fiad bia case, being unable to prove Mr. John-
■i^a band-writing to the order for the fiscal to
flMBil bim, and the question of jurisdiction
ais not SLgitated ; but if it had, however re-
ijpsdable lord Camden's opinion ever will be,
m it was only the opinion of a judge at Nisi
hies. And according to Mr. Buller's own
Urie of tbe case, he makes lord Camden con-
ftsi, that an action might lie in a transaction
batween subject and subject. That concession
iisafficieot for me; for 1 have your lordship's
swa words to prove, that Mr. Fabrigas, being
hsn in a conquered country, is a subject.

Id tbe kinff and Cowle, 2 Burr. 868, your
Isrdsbip, apeaking of Calvin's case, said, ** the
fMStion was, whether the plaintiff Calvin, b<»rn
ia Seollaod after the descent of the crown of
England to king James the first, was an alien
hsm, and consequently disabled to bring any
ifal or personal action for any lands within the
italm of England ;'! and your lordship added,
** bat it never was a doubt whether a person
koni in tbe conquered dominions of a country
iisobieei to the king of the conquering couu-
ky." From this two points are gained : first,
tint Calvin, though born in Scotland, was not
•a aUeOy and might bring a real action ;• and
that there never was a doubt, but that a person
Urn in a conquered country waa subject to the
esaqveror. Aa therefore tbe twelve judgea de-
that CalFin could bring a real actiooy

I because . he was not an alien ; certainly Fa-
! briufas may bring a transitory action, as he ia
a subject, being bom in a country that waa
conq lereil by the state of Great Britain.

There is an anonymous case in 1 Salkeld,
404. 4 Ann. A bill was brought in Chancery
to foreclose a mortgage of the island of 8arke :
the defendants pleaded to the jurisdiction of the
court, viz. that the island of Sarke was governed
by the laws of Normandy ; and it was objected,
that the party ought to sue in the courts of the
island, an-i appeal. On the other side, it was
said, that if the person be here, he may be sued
in Chancery, though the lands lie in a county
palatine, or in another kingdom, as Ireland, oir
Barbadoes. Lord-keeper Wright over-ruled
the plea, saying, *< that the Court acted against
the person of the party and his conscience, and
there might be a failure of justice if the Chan-
cery would not hold plea in such a case, the
party being here." How much stronger then
is the present case ? for this is a transitory ac-
tion that may be brought any where; Mr. Fa-
bngas on the spot to bring it, and governor
Mostyn in England to defend it.

The case Mr. Buller has cited, of the
East- India Company and Campbell, admits of.
a short answer ; for had the defendant con-
fessed the matter charged, he would have con>-
fessed himself to be guilty of a felony ; and the
humanity of the laws of England will noi
oblige a man to accuse himself: but this is not
a pttbHc crime, but a civil injury. As Mr. Bul-
ler has gone to the East- Indies for a case, I
shall be excused mentioning the case of Ram-
kissenseat and Barker, lAtkyns, 51, where
the plaintiff filed a bill asrainst the representa-
tivea of the governor of Patna, for money due
to him as his banyan. Tbe defendanta plead-
ed, that the plaintiff was an alien born, and an
alien infidel, and therefore could have no suit
here : but lord Uardwicke said, as the plaintiff's
was a mere personal demand, it wss extremely
clear that he might bring a bill in this court ;
and he over-ruled the defiendant's plea without
hearing one counsel of either side. As there-
fore lord Hardwicke was of opinion, that by the
laws of England an alieu infidel, a Gentoo mer-
chant, the subject of the great mogul, could
claim the benefit of tbe English laws against
an English governor for a transaction in a fo-
reign country ; I trust that your lordships will
determine, that Mr. Fabrigas, who is neither
an infidel nor an alien, but a subject of Great-
Britain, may bring hia action here for an injury
received in Minorca.

The case^of the countess of Derby, Keilway
202, does not affect the question ; for that was a
claim of dower, which \h a local actipn, and can*
not, as a transitory action, be tried any where.
The cases, mentioned by Mr. Buller, from
Latch and Lutwyche, were either local actions,
or questions upon demurrer, therefore not ap-
plicable to the case before tbe Court; for a
party may avail himself of many things upon a
demurrer, which he cannot by a writ of error.

Mr. BuUer's endeavouring to confound Uraa-

SIS]

14 GEORGE m.

Ad^iomjar Fcise Jtnjpruenmtnt'—

[S16

■itorj with local action , must be my apoloey
for mcfDtioninflf another rate in iiupport of the
distinction. The case I ullude to is Mr. Skin-
ner's, which was referred to the tweWe judflies
/roin the council-board. In the year 1657,
when trade was open to tKe East- Indies, be
possessed liimself of a house and warehouse,
which he filled with ^oods at Jamby ; and he
purchased of the kinnf of Great Jamby the
islands of Baretha. The af^ents of the East-
India company assaulted bis person, seized
his warehouse, carried away his goods, and
took and possessed themselfes of the islands of
Baretha. Upon tiMs case, it was propouniled
to the judges, by an order from the king in
council, dated the 12th April 1666, whether
Bf r. Skinner could have a full relief in any or-
dinary court of law P Their opinion was, ** that
his mtjesty's ordinary courts of justice at
Westminster can - gif e relief for taking away
and spoiling his ship, goods, and papers, and
assaulting and wounding his person, notwith-
atanding the same was done beyond the seas :
but that as to the detaining and possessing of
the house and islands, in the case mentioned,
he is not relierable in any ordinary court of
justice."

Your lordships will collect from this case,
that the twelve judges held that an action might
be maintained here for spoiling his goods, and
aeizing his person, because an action of tres-
pass is a transiterv action ; but an action could
not be maintained for possessing the bouse and
land, because it is a local action.

I trust I have proved that an action of tres-
pass may be brought here for an injury re-
ceived in Minorca ; and that Mr. Fabri^, a
natural 'born subject, is capable of bnnging
•uch action. The only remaining question is,
whether Mr. Mostyn, as governor, can tyran-
nize over the innocent inhabitants within his
government, in violation of law, justice, and
umani^, and not be responsible in our courts
to repair by a satisfbctioii in damages the injury
be has done ? Mr. Buller has contended, that
general Mostyn governs as all absolute sove-
reigns do, and that * stet pro ratione voluntas*
is the only rule of his conduct. I did not ex-
pect to hear such an assertion advanced in this
court. From whom does the governor derive
this despotism ? Can the king delegate abso-
lute power to another, which he has not in
himself? Can such a monster exist in the
British dominions as tyranny uncontrouled by
law ? Mr. Buller asserts, that the governor is
accountable to God alone ; but this Court 1
hope will teach him, that he is accountable to
his country here, as he must be to his God
hereafter, ff»r this wanton outrage on an unof-
fending subject. Many cases have been cited,
and much argument adduced, to prove that a
man is not responsible in an action for what he
has done as a jadge. I neither deny the doc-
trine, nor fball endeavour to impeach the
casea ; but I most obeerve, that they do not
affect the present question. Did goTemor
Hoityn rit u jodginait? Did ke hear toy ac-

cusation P Did he examine a witnesa P Did he
even see the prisoner P Did he follow any rule
of law in any country } * Stet pro ratione vo-
luntas' was his law, and his mercy was twelve
months banishment, to an innocent individual.

As Mr. Buller has dwelt so much «|ion the
case of Dutton and Howell, it will be ex|»ected
that I take some notice of it. 1 need not go
over the case again, as it has been already very
accurately stated; but 1 must beg leave to
read the reasons which were given with the
printed case to the Lords, before it came on to
ne argued in the House of Peers. It is stated,
that sir Richard Dutton ought to have the
judgment that was obtained against him below,
reversed ; for

1st, That what he did, he did as chief gea
vemor, and in a council of state, for which he
ought not to be charged with an action. If he
shall, it may be not only the case of sir Richard
Dutton, but of any other chief governor or
privy -counsellor in Scotland, Ireland, or else*
where.

8. What was done, waa in order to bring a
delinquent to justice, who waa tried in BarSa-
doea and found guilty ; and if for this he shall
be charged with an action, it would ,be a dis-
couragement to justice.

d. What was done, was done in court; for
ao is a council of state, to receive complaieta
against state delinquents, and direct their triala
in proper courts. What a judge acta in court,
as sir Richard Dutton did, no action lieaagaioit
him for it.

4. There never waa such an action aa thii
maintained against a governor for what bf did
in council ; and if this be made a preoedeiit, it
will render all governments unsafe.

5. If a governor of a plantation beyond the
aeas shall be charged with actions here, for
what he did there, it will be impossible for him
to defend himself: first, for that all recordi
and evidences are tliere: secondly, the laws
there differ in many things from what they are
here.

Though the first part of this reason seems
to operate in favour of governor Mostjm, yet
it goes no farther than this ; that if an aetm
is brought here, it will be impossible for him
to defend himself. The latter part ahewa the
meaning of the whole; that is, if an action is
brought here against the governor for euj
thing done by him in his judicial capacity,
then he will not be able to defend himself, «s*>
cause all the records and evidencea are there.
This clearly proves, that it refers to what he
did as judge, otherwise there could have been
no occasion to have mentioned the reoor4p
being there.

These reaaons roust have been the grmiBi
of the counsers argument, and the whole is
bottomed in sir Richard Dutten's having acted
with hia council in a judicial capacity. I take
no notice of the arguments of counaH, as rt^
ported bjr Shower, because it can be no an-
tliority Ar thia court. 1 shall only ohacffTS^
that u reaped to the junsdidiooy wbieli mm

Fabrigat v. Mosiyn.

m tottcheJ on, Ihat tlie mu«rltoD uf

A tor ibe Uctendtnl iu errnr, Hfiirm-

wuJtctinn, ii he goul lUlliorily for

I uf ii by sir Uiohard Duiiod'e

r, biiller. Tlie repnrt ii gjkal

* ftriMinili ii4 Uie JudufDient; Jl onlj

Ibal the action wan rererseil;" liul

I vonl thni ilie BCliou ciiuld ont be

111 I teiilure lo ufBnii, Uial iliig

! Irwl rrtrinbluice lu Ihe pre-

M; duty calli OD roe lo dnvr the iuTi-

■ puvIIH.

mur DultuD ul wllh his oouocil, to
il «iii|uira iu the supreme cuurl of ju-
a llarbidoei :

ir Mtniyn »t neither *s ■ mililtry
il jud^e.
t. F«bfl|[M was not brau^ilil belbre him,
'It he Becuard by any man :

iililicly BccQKd be-

•n iaio B dimgeon,
nib tlie mom uiibeard-nrgeTerily;
nil) oDJy rooBiied for tne .
_ hilt |ieri>uo .

m biiiishedrarliTelTeiDniitbs
0 8|itni»b duiniiiioiiit :
jrJobn wM kriil in cualoily for 11 diys,
• MnU ba hroufjhl to bia trial ;
r. Fabriga*,oiitlje|;<>r«rnur'ijii«lilicAlian,
bund to lie lanoceni :
Sr John Wiiham, when bronchi beforr Ibp
wartor|{«ieralwsBioD>, woifouud ({uiliy.snd

The gavernor of Btkri'adoM followed Ihe iawa
rfBwiMloes'.

The KDTprnor nf MInnrca acted in dinme-
k«tJ opimfiliun tn all latrs. nnil in viulatioD of
is •MtmldicliilMof homaiiily:

Sa Ri^liard Duitou let the law take its

It out of bia way to

H>«iny abt-wM the dilTerenre betneeu the
i*a caB««, permit me In mmlion an obierra-
iii« of loint «birl*-juitic« <le Grey, \a bia nrii-
aam an Ihc malioo for a new trial. " If Ibe
C*>n«or liad tvcured lilm," said bis lonlthip,
" asy, if be bad Wrcly committed him, that lie

a hi ba*c been atntnable to jusiice, and if be
wnn>p<lial*ly ordm^ a proaecullon upon
uy wn '>( bi« i-nuduci, il would have been
asMbcr ijUMioD: bitt tbe cnveroor knew he
taaU DO morn tmpnsoa him Ii>r a Iweliemonlb,
(iind lb* liaBiahnwnl far a year i» a conlinualion
tl tbe ortcina) impriaoiimeni) Iban ibiit be
■MiU iaAtcl tbf t0it<ire."

La«4 cbiefguatice de Grey llitn undoubtedly
lb«agb( (bat Bo*«Tnor Moctyn had actetl ille-
ttUjf : ifao, I hope 1 nball be able to«bew,
iiiil bt H mffleiiable to Ibe courlaof law in

Lflrri MlBmnnt't ciae, iu 3 Salkeld 695,
' R. Pvek. IU W. $, evince*, tbat a ico-

rndrkbmad ■■ rMpoutihle here. "Tbeal-
' riiey-f •neral mnifd tor a Itial at bar ibe last
•,^4ky ■■ llie tattu, ia an Mtioa aKaiufl ilia

A. D. 177S.

[918

clUe

gOTemor of New-York, for niatlerdoneby him
as §;o>ernor, and sTanird, because Ibe Itingde-
fended it." I collect fi'am Uiie caw, that Ihe
Btlurney-||;eaeral knew ibe Court bad jurisdie*
lion, or be would not ba<e nude the motion ;
and tbe Court wonld nut haie granted It, if
they bail not been Icgully impowered lo Iry it.
The IdcitlHInre, in U>e aame year (13 VV. 3,
cup. 1^,) enacted, that govettntn beyund Ihe
sea iliould be tried in the King''a-beuch, or in
aucb cnuiily as shall be asiigued by bis ma-
jesty, by good anil lawful men, lor ofl'encea
cuainiitlcd in Ilieir govtfiimeols abroarl againit
Ihe kioi;'s suhjec Is there. Aa, by tbe common
law, ao' indiclineat could be preferred only in
that county where tbe offence was commiiled,
goveraiirs abroad were not crimiiiBlly amena-
ble llll Ibis act had passed. When the legisla-
ture so carefully provided la bring gorernon to
juitice for Ibe olTcnceB they mi|[bl cnmmil in
their governments, ihey would indisputably,
by the same law, have protested the suhjecla
from civil injuries, had ibey not bnown Ibat
aucb pRitiaioo was unnecessary, and Ihat, by
the common taw,^ [lersnnnl actions iDiiibt be
brought in Bnu'Und ; of which lord Betla-

In Michaehnas lerm, 11 Geo. 3, 1737, Ste-
phen Conner bmughl ao action iigainsi Joseph
Kslirne. KOternnr ul Gibraltar: aud be elated
in btH declaration, tliat he was a iimster c»t-
penler of tbe iiRice of ordnance at Gibraltar ;
ibnl e''ivernor S»hine tried hiiti by a cuurl-mar-
iial, Iu which be was nut sulijeci ; and that be
underwent the senlence of reoeiviog 900 laihes,
and that he was compelleil to depart from Gib-
raltar, which he taiil to his daniage of lO.OUOf.
Tbedefeudaiit pleaded Nut Guilty, and justified
hy Iryiu^ htm by a court-martial. There was
a verdict (br the plainlitT, with JOOl. damaf^cs.
A will of error was brnughl, and Ihe judgment
affirmed. No diilinclion cnn be made between
Ihe gnternnr of Gibraltnr and Ibe gorernor of
Minorca ; except only, Ibal the one tried Con-
ner by a court mnrUal, and punished him by
military law; while tbe other, without any
trial, banished Mr. Fsbrigas, contrary to all
ideas of justice and of law.

I masl now bej; leave lo advert lo t)ie bill of
exceptions; in which ilisalledgnt, thai •■ Mi-
norca is divided iuto four districts, elclusive vf
Ibe arraval, which Ibe wiineisei always under-
stood lo he diBlincI from Ibe others, and under
the immediate order of ihe goveruor."

I am well aware, lliat I am not al liberty lo
go out uf the record ; if I waa, the lact war-
rants me iu saying, that tbeeiiJciiceis moil

tt is iinlorioag that Minorca is divided into
four terminoxouiyi Cientadella, Alayur, Msr-
cadel, and Malum, which latter inrluiles tbear<
raval of Ht. Phillip's. Tbii is known tu every
man who has been at Minorca, and to every
wan who has read Armslrung's history of Ihat
island. Thai tbe guveronr has a legislailve
HUtbority within tbe arraval, is ton absurd lo
dwell ou. By what law, by what (truniion.

2I9J

14 GEORGE IIL

Actionjlr False Impruonment'^

rs2o

doet he elaina that power? When process is
ezecuteil withio St. PbillipX or its enrirons,
Ibe cifil magistrate asoall^ pays the gofemor
the complimeot of acquainting him with it ;
but the same compliment is paid to the com-
manUio^ officer at Cieutadella, where an ex-
clusive jurisdictioa is not efen pretended. In
fact, it is a matter of ciFility merely, but nef er
was a claim of right.

Lord chief justice de Grey in the solemn
opinion which he gave upon the motion for a
new trial, has been explicit on these two heads.
** One of the witnesses in the cause (said his
lordship) represented to the jury, that in some
particular rases, especially in cnminai matters,
the gofernor reudent upon the island does exei^
cise a legislatire power. It was gross igno-
rance in that person to imagioe sudi a thing :
I may say, it was impossible, that a man who
lired upon the island, in the station he had
done, should not know better, than to think
that the gOFemor had a cifil and criminal
power in him. The gOTernor is the king's ser-
vant ; his commission is from him, and he is
to execute the power he is invested with under
that commission, which is to execute the laws
of Minorca, under such regulations as the king
•hall make in council. It was a vain imagina-
tion in the witnesses to say, that there were
i&ve terminos in the island of Minorca. I have
at various times seen a multitude of authentic
documents and papers relative to that island ;
and I do not believe, that, in any one of them,
the idea of the arraval of 6t. Phillip's being a
distinct jurisdiction was ever started. Mabon
is one of the four terminos, and St. Phillip's,
and all the district about it, is comprehended
within that termino ; but to suppose, that there
is a distinct jurisdiction, separate from the
government of the island, is ridiculous and
absurd."

These were the words of lord chief justice
de Grey ; to which, 1 am confident, this Court
will pay a proper attention.

The bill of exceptions then states, that gene-
ral Mostyn was appointed governor bv the
king's commission, which gives him all the
powers belonging to the said office. I wish to'
ask Mr. Buller, whether to persecute the inno-
cent, and to banish those subjects committed to
bis care, is a power incident to or springing out
of the office of governor ? If it is not, the go-
vernor cannot justify himself under his com-
mission.

It is then stated, that the king ordered *< all
his loving subjects in the said island to obey
bim, the said John MosUn ;" but nothing in
particular is mentioned ofthe arraval. Had it
beeriji peculiar district, under the despotic will
of the governor, there must have been some
notice taken of it, either in the commission, or
in his majesty's orders. The governor then
confesses m his bill of exceptions, *< that he
banished Mr. Fabrigas without any reasonable
or probable cause, or any other matter alledffed
in bis plea, or an^ act tending thereto." JNot-
wiihatiuMiiDg which admiiiioD) in the very next

sentence, he inbists that the plaintiff ought to
be barred his said action, although it is stated
in the bill of exceptions, that *' the Minorquios
plead sometimes toe English laws."

Were the bill of exceptions less absurd than
it is, yet I should contend, that the governor,
by plc»ading in chief, and submitting bis cause
to the decision of an English jury, has pre-
cluded this Court from eoc|uinng into the ori-
ginal jurisdiction. Were it possible that this
ground should fail me, when supported by so
many great authorities, yet I should be very
easy about the event; for, as an action of tres-
pass can be brought in England for injnriec
abroad, and as every subject can bring that ac-
tion, and as governor Mostyn (Ijeing a subject)
must answer to it, I have no doubt but tba
judgment will be affirmed. Should it be re-
versed, I fear the public, with too much troth,
will apply the lines of the Roman satirist oa
the drunken Marius to the present occasion ;
and they will say of governor Mostyn, as was
formerly said of bim.

Hie est damnatns inani judicio ;

and to the Minorqnins, if Mr. Fabrigas should
be deprived of that satisfaction in damages
which the jury gave him.

At tu victrix provincia ploras.

Mr. Buller, 1 beg leave to trouble tha
Court with a few words by way of reply:
and though Mr. Peckham has thought nt to
declaim so much upon the particular facts of
this cause, yet I was confident at first, and do
not now find I was deceived in thinking, I
should not be contradicted in what I said about
the propriety of governor Mostyn 's conduct ;
that he bad taken every precaution^bat a maa
in his situation could do, had consulted many
persons there, civil and military, and that they
were alt unanimous in advising the governor to
do what was done.

The first objection made by Mr. Peckham
has been, that Mr. Mostyn should be precluded
from conteiiiliog that this Court hath not a jo-
risdiction, because he has submitted to the ju-
risdiction of the Court in so many instances
during the whole of these proceedings. He
has stated the whole proceedings during the
stages of this cause, by which he supposes Mr.
Mostyn hath done such acts as shall be <Mm-
strned into a submission to the jurisdiction of
the Court, and is therefore now precluded from
entering into the question. Further, Mr.
Peckham has insisted upon it, that at the trial
we did wrong in making a defence ; because,
if we meant to ^ into the question, whether
the Court Itas junsdiction or not, we should have
then insisted upon a non-suit, and not gone
into the merits ofthe cause. I do not appre-
hend any of the cases he has cited will come
up to the present : and as to the different pe-
riods of the cause, where he supposes we have
submitted to the jurisdiction of the Court, if
this Court hath no jurisdiction at all, 1 do not
know how it can then be mmI we have lubiiut-

»1]

Fabrigas v* Mottyn*

lei to it Siying, that at the trial we should

kove insisted upon a non-suit, is sayinff we

should have insisted upon what we could not

demand ; for it is at all times at the option of

the plaiiilifl', whether he will submit to a non-

IMI or mit. 1 1' the defendant can avail himself

tf the objection at all, it must be by entitling

liflBBrlf by that means to a ferdict ; for it is in

As power of the plaintiff to get up and say, I

till not be non- suited. It was impossible for

Bf to insist upon the objection in any at her

wsy than it is now done : the objection arises

•at of the facts of the case, and what was

BroTcd at the trial. It was there proved, that

Mr. Moety n was the governor ; that what he

M was in that character; and therefore,

■ys he, these facts being proved, 1 insist I

•« not answerable in a court of justice in

£oglaod, for what 1 have done in (hisch^trac-

tff : therefore the objection would have been

■Bproper, if it had come at any other time ;

it could only come when these facts appeared

is evidence upon which this objection was

ftooded. As to the many cases that have been

died, I bdieve I may safely give this general

isswer to them all : they are cases where an

•dioD has been brought in a court in England,

fir a transaction arising in England, but, on

aeeoont of a charter or statute, the jurisdiction

if the soperior court has been excluded. Where

thit ifl so, and this Court has a general super-

islcDdent jorisdictioD, but it is taken away by a

pirtiailar law, in such case it is necessary to

Ijhad to the jurisdiction: hot when the ques-

liM ariaes upon a transaction happening in

facign parts, and where the courts of England

aMMH liave any controul whatsoever, suppose,

iiinstaofse, in France, where the king or par-

fiiBeot of England can make no laws to bind

4e inhabitants, it is just the same as a court

if inferior record in England, where it holds

. plea of a thing done out of their jurisdiction.

■•that case, if it appears upon the proceedings

Uttt the cause of action arose out of the juris-

MoDo, the whole proceedings are void ; thpy

ire coram non judice ; aud an action will lie

•f^aiast the party, the officers and the judges,

Air what is done under them.

In this case, as I submit to your lordship,
the question is the same ; because it is not on a
Iraasaction happening within the limits, or
vithin the country where this Court resides or
bs a jurisdiction, but on a transaction arising
is foreign dominions. 1 beg leave to mention
<•«, that if these cases were so very general as
Mr. Peckham wishes to have them understood,
it if not possible that the case in Latch, or the
case iu L*utwyche, e^er could have existed ;
Weaufte, if it wa>« to hold as a general rule,
iktt where the cause of action arises out of the
kise(k»in you must plend to the jurisdiction, it
v«Mi(d have l>een a sufficient answer in those
tmts to say, it was not so pleaded. In tlie case
it Lotwyche, there wa.s a plea in bar, and de-
Siorrer to that plf»a ; but it ap|>earing, that the
Cum Iff action did not arise in this kingdom,
^ la foreign paru, the Court agreed; that the

A. D. 177S. t«S

supposition and quaint legal fiction, which
otherwise would avail, that it was in London or
England, was absurd, and the plaintiff could
not support his action. It was tlte same in tha
case hi Latch ; for that was not on a plea to
the jurisdiction, but the objection arose long
after, and in a subsequent period of the cause :
the judges there agreed, that if it appeared on
the record, that the case was plainly and evi*
dentlv out of their jurisdiction, they were bound
to take notice of it.

Mr. Peckham has divided his argument inta
three heads: first, whether a transitory actios
is capable of being brought in England, if tha
cause of that action arise beyond the seas : 8e«
condly, whether the plaintiff is capable of
bringing such action : and, in the third place,
whether the defendant is a proper object of it.
On the first ef these questions it has been in-
sisted, that an action of false imprisonment is a
transitory action ; and some cases dted, whera
transitory actions, arising abroad, are holden to
be maintainable here. An action of false im-
prisonment certainly is a transitory action : but,
my lord, the cases dted from IStb Co. and Co.
Lit. were not cases of aation for false imprison-
ment, but debt upon bond. These cases wera
where the law, in the different countries, was
the same ; and they therefore come within tha
distinction laid down in the case before lord
Camden. For, where the law of the different
countries is the same, this Court may hold
plea; it may do as much justice as the foreign
courts, and can he involved in no difficulty with
respect to the rules by which they are to de-
cide. But in the case of transactions arising in
foreign dominions, where the law of the foreign
country is different from the law of this king-
dom, this Court has no way of informing them-
selves what the foreign law is, nor can they
know what rules to decide by ; and therefore
every inconvenience arises against their enter-
taining such a suit. Mr. P^ham tlien cited
the case of Parker against lord Clive, in this
court, and observed, that there never was any
objection taken there, that the action would not
lie. That case is different from the present.
That was a case^between English subjects, and
a case that was ^ to be determined, not by the
law of the East Indies, (for that was not set up
as a defence, or at all intermixed with the case)
but by the law of England ; and therefore is
still within the distinction 1 have laid down
and endeavoured to support. Then the second
question Mr. Peckham has made is, whether
the plaintiff can maintain this action? The
plaintiff, he says, is not an alien, but a natural-
born subject, and as such he owes allegiance,
and is entitled to protection ; and that the king
of England can protect only by the laws of
England, and therefore this man has a right to
bring his action here. The proposition will it-
self shew how enormous it would be, if it were
to hold in this case. How is the king to rule
by the laws of England ? Is it meant that this
case is to be determined by the laws of Eng-
land ? If so, that would be injustice in the most

SS3]

1* GEORGE m.

Aclionjbr False Impriiovvifut —

fav ilie

I

I

ghring 1ig:ht; hecauoe it wiulJ becondnnitiiiK
ibe det'enihiDl by one lair, viXiva lie wm bound
to regulate lib cotiiluci by a different. But il
true that the kin|r ol Engluiil can prnl<ct
~ law* of England only ; for, in other
. a Iranxsclioo rouflt be tried by the laws
of that place where it arises ; and ibe king can,
Id Dllier (ilaces, goiern by other laws tlwn
those of EDiclaod: to J I contend, tliia quesllun
mutt be deleriiiined by sucli laws, and uot by
the laws of this country. Mr, Peckharo hm
then insisted, tbnl this is a case between siibjecl
mod subject. If lie ineanii il Is between subject
and sntyect. ipealtin]^ ol'ihe kiii|; of England.
it Is true; but FabriigM Is nut a aubjeci of Ibia
realm, nor subject to be gorerned by the laws
of this conn try, and therefure shall not avail
himielf of the lawi of Ibis country. The caae
ID Salkeld, 401, was then cited, w^ere IheCourt
of Chancery (iroceedpfl against a lnrel)j;oer ;
and the reaaon there giico lor so doine is, be-
cause that Court acts in penonaia. Bui, my
lord, that case does not appear to be at all
blended with foreign law ; nor ia any thing
ibere atatrd, which called on the Court (o de-
termine that case by any other law than the
known laws of thi^ country, and the rules of
their own court. The case in the 4tb losli-
lule was then eodearoured In be distinguished
from ihe present, by insisling, ihal the subject-
matler of Ibal case was loeaf: hut Ihai answer
cannot hold. If it had been an action In a
court of law, the answer would have been a
good one 1 because an action af dower Is local,
and can only be tried In the county where the
land lies; but that was a suit In Chancery,
and not an action ; and, as ia saiil In the case
cited from Salbeld, the Court of Cliincery
don't proceed against the thing, but against the
IKWin.

Then the last inealioa that has been innde is,
whether the deleodant in (his cast Is the proper
■ubjed of au action? Aly loni, Sir. Frcldiam
has observed, I said the governor wns absolute ;
but that he iusists is impossible, because there
is no person who could delegate such an autho-
. rily to him ; ibat If he derited such authority
from any one, It must be from Ihe king ; but the
king, out bring absolute himself, could not grant
warn BUlhorily to Mr. Slustyn. If it be meant
«nty, titat Ibe king is not obsolnte in this coun-
try, 1 mosl readily accede to the proposition ;
but what the cniislitutiou of this country is,
oaa be nv arguiuent to pro«e what is the state
«r consiitulion of Minorca. That Minorca la
«f A different caostitution, and ia governed by
different laws from what prevail iu this coun-
try, is staled In the record ; which record is
deciaive upon tbat point, fur the Court cannot
deiiart from it. It ut there iilaied, that the arra-
*al of 8i. Phillip's Is au<<ject to Ihe imiaediate
order of llie governor, and to his order and di-
ftclioa only ; for on judge, either criminal or
oiril, can Interfere, or has auy jurisdicti'iD
there, unless under bi» express leave; there-
fore the argument, as tn Ihe authority or power
«r lite king here, is luially foteigo to the silua-

P

lion of the gnvernor of Mil
or jurisdiclinn he has there.
it does not appear in the record, Ihat the «
fendant did act as Judge. This also must
decided by the record ; and it Is Ihiire slab
that ibe defendant was governor, snd so bei
gnvernor he caiiged the plaintiff to be taki
Imprisoned, &c. The case of Dulton
Howell has been much observed upnn. and t
printed reasons given iu thai esse parliculai
staled ; but I do not perceive the case bl
bet-n disling Ills bed from the present. Some
the reasons alledged for the defendant the
are equally strong In favour of the prei«nl (
(endanl. It Is said, there never was lucb
action maintained before; and If a goven
beyond sea be charged here, he cannot delii
himself, becniise all the records and evidec
are there. Mr. Peckbam has not been able
produce one rase, in which such an nclion
lliis has been maintained before. Itul lb
another ilistinclion he endeavaureil to a*
himself of is, Ihat, in the case of Uiilton s
llowel), ihe action was fur un act done In con
cil, and therefore varieil from this case, I
cause here there was nocouncil al all, I ca
not see hnw that difference will at all avail H
Peckham's client. In the first place, in Oi
hadoea, there was a conned, and ibe goven
had no power without the cnuncil ; but is tl
Ihe case heref In Minorca, there Is uo coun
at all; and therefore, in this case, the g
vemor stands in Ibe same siiualion (a I
governor and council of Barhadoes. As lal
neces^ly of pleading In abatement to the jut
diction, it is very observable, thai in the CIM
Outton V. Howell, the cuuOKel who argued
that cue do not venture lo rely upnn tMl C
Jection. But they insist further, that ibeJM
diction cannot be examined in ibe Bxcb«|l
chamber, because both the statute and wnl
error expressly provide agninsi II: and lbe_
fore, say they, it is questionable, whriher
can be insisted upon In the Ilniue of * '
and it is admitted by Ihera, that a quesli
might have been made on the trial of an iisi
if one had been joined. However, that qui
tlon was gone Into in the Huufc ol Lords, a
the 6nal decision of the cause appears fr
the book ; namely, that the jnilgiueni ii ~
case was for tbe ilef'endani, aud that the
could not be maintained. Then Ihe words
[I cbierjukticu de Grey, in this present <
>a a iiiolion for a new iriul, have been
relied upon i and his lordship la made lo
Ihat if the governnr had srcurerl the pr

Clainliff, merelj for tbe sake of a trial. It woi
9 a different affair. In Ibis case, 1 apprehi
uld be quite sufiicieiit (or me, il thi
vcrnur had a jiower of comotii
he bad, that Is suSicienl lo preveol thi
I'tiidant's being a IreapHSser by such
taeai : and the reason ablenei.8 of the time fat
hich be was ciiiumilK^, would be a very dif-
rent qiieslion ; for, if Ihe governor had a
, awer of cummiiling, he has pursued that
power, and tbca tbi« ■ciion cannot be uiaii-

Fahrigo) v. Moslyn.

Tbe Heart cate that b*H been ciied,
in ad SBlkeli], which w
agUMM a gotemur I'nr wliat he did
Meri bul thai is kimjily a motioD fur
Imt. Tbe merits of the
|wly »f ibe aciioii, wero not bttbre tbe
Uk or at alt enler«(l into ;
■ manle la tbe jurisdiciian nf the Cuurl;
'here a ibiog is DOt nbjecled to, the case
i-ner be na aulUortiy on ibe |>oint: there
' gae >}'Ilab!e isaid Hbuiit it ; and iherel'ore
i.-ise cautiM kave Ibe leut weigiit wbatto-
ici peeling this qjestion. Then Mr. Peck-
- I tbe statute uf the Vi\h of William
bat ibai »as admitled by him to ex-
In (n-imiDal prosecutiunsatlbeking's

jtmS ttkerefore can hate noihiog to do ulth

4r fKtot qaestioD. The case of Conoer
4piM Sabtite ia as dilTereot frnni this cuse, as
MNC ease caa be frura another. There the
Mace was uut upon the ground, that the
' - -ial. The

A. D. ms.

[236

ootolherwise: theystated a limited

yij^ctioa. and it appeared (be ptainlilf was

Wlbe object of that jurisdiction. Then it is

■y,[haL Minorca ia not a niihiary camp, hut

MikcT« are judges huth criminal and civil.

br f^ia I must hue recourse to the re-

adtatH', for there it is Etsied, that within

fctfiaral of 8L Philh|i'B, where tlii« Iraus-

MH Bcctirred, there is no jnilge either cri-

■mI ar civil ; there is no power but that of

k ptenwr. Mr. Peckhtun observed, that

*■ atfrd in the record, that the iubabitants

aaants ctaim jirotection from the law

4b(tan-l, as well as tbe law of S|iBin. It

• a ftalei); bul what is said further.'

titU tbey erer have it allowed In them,

*% Uii?y are governed by it; but it is

Vdj stated, that they are in genernl go-

MJby llie law of Spain ; therefore tbe re-

■Ifcei oat [irute, ibat Ibe people ii> Minorca

v^nnoedby the same laws as the people

'-. bM it does p rote, that they are governed

• t% ■rliich are tiiUlly diflereol, and that

. Ibe nrraval uf St. Phillip'*, the will of

rrrmtat is the law. Hr. Feckbam then

-kt ib« veiaciry of the record vrilh respect

-! ttStrtat disiricM which there are within

jalaaJ ; ami baa insisted, that though in the

- :ti«a of process, Sta. the law-oSicers may

' ill tbe ^tcmor, or inform him witat they

.-Has ta do, yet that ihey are nol bound by

10 du Ml, My lord, the record must, in

-K ce^wcu, aNo decide for us. It is there

xifd wbal the districts are ; that Ihe arraval

<* i*. Pbilhii'a is distinct from the others ; and

■ be executed there, without the
rnraar'a particular leave. Mr. Peckham
, a^ wtwre ia tbe authority that ennhli^s a
nnw to banish an innocent man? In ihe
a |he«, •■ to bis beioK an innocent man, it
t« oawprtent to this Court In ennuire whe~
«■ kc n> innoceDi or ool, or whether the
■vmnr was ttrictly jnsiihable or uot ; bul it
•Abrnt 10 prgTc, that the gOTeruoi bud i

authority to imprison. That authority appears
upon Ihe lace of the record ; for it is Ibera
staled iliBt he was governor, and had every
power, civil aud military, and ihat all he did
wav in the character of a governiir. I'liesa
lads lieioir proved, I snhtnii are a sutficienl bar
to this action, and ihe Court rannot go into tha
((ueHtiou, whether the plaintiff was iimuceni ur
guilty. The last argument that has been rrlieil
ujion by iUr. Peckham ia, some other esprev-
siuns of lord chief justice de Grey, in iha
course of this cause; in which his lordship
said, that the witnesses must have been mia*
taken in the account Ihey ga«e of the cimsti-
lulion and law of the island. Here it is im-

Cossible tor ilie Court to go out of ihe record ;
ut these ohservationa of lord chief jiislice da
Gre^ go certainly a great way towards proving
Ihe impmpriety nf maintaining «uch an aciioa
here as the present. If the account [fiven by
lord chief justice de Grey of the islanit be true,
aud I make nu doubt il ia, Ihe consequence ia
this : that even Ihough all the evidence was
obtained in this cause that could be had j
though persons were called as wilnesses, ivho,
from their sitimlinn, and the departments they
had officiated in, were most likely to be con-
versant with the law and conslilulioa uf the
island ; yet that all the acuoiiols that have been
given are imperfect, erroneous, and unworthy
of credit. That is tbe slmngesl evidence of
Ibe impropriely of malnlatDing such an action
as Ihis in England. For if, as lord chief jui-
tice de Grey says, the evideuce that has been
given of the foreign law in this case is not ta
be relied upon, bul is all a niistake; itmajr
happen, and it must naluialty he expected, that
in every case which is brought here from fo-
reign dominions, where the cause of action
arises abroad, all the cvideuce Is abroad, and
the Courl can get no other evidence of tlie law
of the place than Ihe loose opinions of ihoso
who have occasionally bten Ihcre; and ihe
courts here having no established legal mode of '
obtaining cerliticatea froia such country, pro-
perly HuUienticated, to say what the law there
IS, ttie same mistakes and inconveuienue will

Therefore, on the whale, I trust the Court
will be of opinion, that this action is improper,
and ought not to be niainiained here.

Lord Manifteld. Let il stand for anolhec
argument. Ii has been extremely well argued
on both sides.

On Friday tFie B7th January, 1775, it naa
very ably ii^ued by Mr. Serjeant Glynn, on
the part of Mr. Fabrtgas, and by Mr. Serjeant
U'alker, on behalf of govennr Moslyu : but as
no new cases were cited, we shall proceed to
give Ihe Judgment of the Court uf Klng's-
beuch, which was in substance as follows :

Lord Mamjleld. This was an nntion for an
ssanlt aud lalse imniisonmeni by the defen-
dant upDD the plainiilf. And part of tbe com*
Q

283]

U GEORGE III.

AtAonJbr Fahe Imprisonment^-^

[22ft

ghurinf light; becaoie it would becomteMunf
the defendant by one law, when he waa hoond
to regulate his conduct by a different. But it
is not true that the king of England can protect
bv the lawe of Enghmd only ; for, in other
places, a transaction must be tried by the laws
of that place where it arises ; and the king can,
in other places, gofeni by other laws than
those of England: and I contend, this question
must be determined by such laws, and not by
the laws of this country. Mr. Peckham has
then insisted, that this is a case between subject
and subject. If he means it is between subject
and sulgect, speaking of the king of England,
it is true; but Fabrigas is not a subiect of this
realm, nor subject to be governed by the laws
of this country, and therefore shall not avail
himself of the laws of this country. The case
in SalkeM, 404, was then cited, wliere the Court
of Chancery proceeded against a foreigner ;
and the reason there given for so doing is, be-
cause thtft Court acts in pertofuan. But, my
lord, that case does not appear to be at all
blended with foreign law; nor is any thing
there stated, which called on the Court to de-
termine that case by any other law than the
known laws of this country, and the rules of
their own court. The case in the 4th Insti-
tute was then endeaToured to be distinguished
from the present, by insisting, that the subject-
matter of that case was local: but that answer
cannot hold. If it had been an action in a
court of law, the answer would have been a
good one ; because an action of dower is local,
and can only be tried in the county where the
land lies; out that was a suit in Chancery,
and not an action ; and, as is said in the case
cited from Salkeld, the Court of Chancery
don't proceed against the thing, but against the
pemn.

Then the last question that has been made is,
whether the defendant in this case is the proper
subject of an action? My lord, Mr. Peckham
has observed, I said the governor was absolute ;
but that he insists is impossible, because there
is no person who could delegate such an autho-
.rity to him ; that if he derived such authority
from any one, it must be from the king ; but the
king, not being absolute himself, could not grant
such authority to Mr. Miistyn. If it be meant
only, that the king is not absolute in this coun-
try, I most readily accede to the proposition ;
but what the coustitutioii of this country is,
can be ncr argument to prove what is the state
or constitution of Minorca. That Minorca is
of a different constitution, and is governed by
different laws from what prevail in this coun-
try, is stated in the record ; which record is
decisive upon that point, for the Court cannot
depart fh>m it. It is there stated, that the arra-
val of St. Phillip's is subject to the immediate
order of the governor, and to his order and di-
rection only ; for no judge, either criminal or
civil, can interfere, or has any jurisdiction
there, unless under his express leave : there-
fore the argument, as to the authority or power
of the king herep is totally foreign to thesitna-

tioD of the governor of Minorca, or the power
or jurisdiction he has there. Then it is said,
it does not appear on the record, that the de-
fendant did act as judge. This also must he
decided by the record ; and it is there stated,
that the defendant was governor, and so being
governor be caused the plaintiff to be taken,
imprisoned, &c. The case of Dutton 9.
Howell has been much observed upon, and the
printed reasons given in thst case particulariy
stated ; but I do not perceive the case has
been distingubhed from the present. Some of
the reasons alledged for the defendant there,
are equally strong in favour of the present de-
fendant. It is said, there never was such an
action maintained before; and if a governor
beyond sea be charged here, he cannot defend
himself, because all the records and evidence
are there. Mr. Peckham has not been able to
produce one case, in which such an action as
this has been maintained before. But then
another distinction he endeavoured to avail
himself of is, that, in the case of Duttoo and
Howell, the action was for an act done in coun«
cil, and therefore varied from this case, be*
cause here there was no council at all. I can*
not see how that difference will at all avaU Mr.
Peckham*s client In the first place, in Bar-
hadoes, there was a council, and the. governor
had no power without the council ; but is that
the case here ? In Minorca, there is no council
St all; and therefore, in this case, the go-
vernor sunds in the same situation as tho
governor and council of Barbadoes. As to the
necessity of pleading in abatement to the juria-
diction, it is very observable, that in the case of
Dutton V. Howell, the counsel who argued ia
that case do not venture to rely upon that oh*
jection. But they insist further, that the juria*
diction cannot be examined in the Exchequer
chamber, because both the statute and writ of
error expressly provide against it : and there-
fore, say they, it is questionable, whether it
can be insisted upon in the House of Lords t
and it is admitteo by them, that a question
might have been made on the trial of an issue,
if one had been joined. However, that ques-
tion uas gone into in the Houi^e ol Lords, and
the final decision of the canse appeara from
the book ; namely, that the judgment in that
case was for the defendsnti and that the action
could not be maintained. Then the words of
lord chief justice de Grey, in this present cauae^
upon a motion for a new trial, have been mods
relied upon ; ami his lordship is made to say,
that if the govern' t had secured the present
plaintiff, merely for the sake of a trial, it would
be a different affair. In this case, 1 apprehend
it would be quite sofiicient for me, if the go-
vernor had a power of committing at all ; for if
he had, that is sufficient to prevent the dn»
feudunt's being a trespasser by such commit*
ment : and the reasonableness of the time for
which he was committed, would be a very dif>
ferent question; for, if the governor bad n
|iower of committing, he has pursued
power, and then this actum caonoi bo

10]

Fabrigas v. Motijflk

A. D. 1779,

[82S

tiioed. The next caie that has been cited, is
htd BeUamoot's case in 2<1 SalkelJ, which was
wm tctioa agaiasl a governor for what he did in
tkit cbaractflr : hot that is ftiniply a motion for
a tiial ftt bv. The merits of the case, or the
fnpriety of the action, were not before the
Onit, or at ail entered into ; nor was any oh*
JKiios made to the jurisdiction of the Court 4
mi where a thing is not objected to, the case
Oi nmrcr be an authority on the point: there
■ let one syllable said about it ; and therefore
tkt case cannot have the least weight whatso-
raspecting this question. Then Mr. Peck-
cited the statute of the 12lh of William
tbe third : but that was admitted by him to ex-
lad oohr to criminal prosecutions at the king's
sail, aod therefore can have nothing to do with
the preaeol question. The case of Conner
^fHHt Sabine is as different from this case, as
aa? oae eaae can be from another. There the
immw was pot upon the ground, that the
pbioliflr was amenable to a court-martial . The
6ci tamed oat otherwise: they stated a limited
' 'idiedon, aod it appeared the plaintiff was
the object of that jurisdiction. Then it is
that Minorca is not a military camp, but
that tbere are judges both criminal and civil.
Acre agaio 1 must have recourse to the re-
csri itself; for there it is stated, that within
the airaral of St. Phillip's, where this trans-
adiaa occurred, there is no judge either cri-
■iaal or ciril; there is no power hot that of
At governor. Mr. Peckham observed, that
it is staled in the record, that the inhabitants
SMMliaies claim protection from the law
if SogfoDd, as well as the law of Spain. It
ii as stated; but what is said further?
Kn that tbey ever have it allowed to them,
vibat they are governed by it; but it is
opreasly stated, that they are in general go-
Mned by the law of Spam : therefore the re-
cvri does not prove, that the people iti Minorca
Iff gorerued by the same laws as the people
hoc; bat it does prove, that tbey are governed
fty kws which are totally different, and that
viihia the arraval of St. Phillip's, the will of
the governor is the law. Mr. Peckham then
ttlMdu the reracity of the record with respect
Is the different districts which there are within
the islaod ; and has insisted, that though in the
tieeution of process, &c. the law-officers may
csasolt the governor, or inform him what they
lie going to do, yet that thev are not bound by
liv to uo so. My lord, tne record must, in
tbtae respects, also decide for us. It is there
ostid what the districts are ; that the arraval
of 81. Phillip's is distinct from the others ; and
Ihit 00 toagistrates can come there, nor can
I isj process be executed there, without the
ftveroor's particular leave. Mr. Peckham
ttkk, where is the authority that enabltfs a
|sv#mor to banish an innocent manf In the
te pfaice, as to his being an innocent man, it
b BOt competent to this Court to enquire whe-
ther be was innocent or not, or whether the
strictly justifiable or not ; but it
to profCi that the governor bad an
VUU XX.

authority to imprison. That authority app^rs
upon the face of the record ; for it is there
stated that he was governor, and had every
power, civil and military, and that alt he did
was in the character ot a governor. These
facts being proved, 1 submit at« a sufficient bar
to this action, and the Court cannot go into the
question, whether the plaintiff was innocent or
guilty. The last argument that has been relied
upon by Mr. Peckham is, some other expres-
sions of lord chief jtistice de Grey, in the
course of this cause; in which his lord<*hip
said, that the witnesses must have been mis-
taken in the account they gave of tlie consti-
tution and law of the island. Here it is im-
possible for the Court to go out of the record :
out these observations of lord chief justice de
Grey go certainly a great way towards proving
the impropriety of maintaining such an action
here as the present. If the account i^iven by
lord chief justice de Grey of the island be true,
and I make no doubt it is, the consequence is
this: that even though all the evidence waa
obtained in this cause that could be bad |
though persons were called as witnesses, who^
from their situation, and the departments they
had officiated in, were most likely to be con-
Tenant with the law and constitution of the
island ; yet that all the acconnts that have beea
given are imperfect, erroneous, and unworthy
of credit. That is the strongest evidence of
the impropriety of maintaining such an actran
as this m England. For if, as lord chief jus-
tice de Grey says, the evidence that has beea
S'ren of the foreign law in this case is not to
I relied upon, but is all a mistake ; it may
happen, ana it must naturally he expected, that
in every case which is brought here from fo-
reign oominions, where the cause of action
arises abroad, all the evideuce is abroad, and
the Court can eet no other evidence of the lavr
of the place than the loose opinions of those
who have occasionally been there ; and the
courts here having no estsblished legal mode of
obtaining certificates from such country, pro-
perly authenticated, to say what the law there
IS, the same mistakes and inconvenience will
arise.

Therefore, on the whole, I trust the Court
will be of opinion, that this action is improper,
and ought not to be maintained here.

Lord Mansfield. Let it stand for another
argument. It has been extremely well argued
on both sides.

On Friday the S7th January, 1775, it was
very ably argued by Mr. Serjeant Gl^^nn, on
the part of Mr. Fabrigas, and by Mr. Serjeant
Walker, on behalf of governor Most^u : but as
no new cases were cited, we shall proceed to
give the Judgment of the Court of King's-
bench, which was in substance as follows :

Lord Mamfield. This was an action for an
assault and lalse imprisonment by the defen-
dant upon the plaintilf. And part of the com*

Q

S27J

14 GEORGE ni.

AdUmfir False Imprisonment^^

[888

plaint beingf for IwDishinfj^ bim fnim the island
of Minorca to Cartha^feDa, in Spain, it was
Decesnary for the plaintiff to take notice in the
declaration of the real place where the c^use
of coin|ilaint arose ; which he 'has stated to be
at Minorca, with a videlicet in London, at St.
Mar>-le Bow. Had it not been lor that par-
ticiiJHrity, he mi^ht ha?e slated it to ha?e been
in the county of Middlesex ; but part of the
ctMnplaiiit luakinfjf the locality, where the came
of action arof>e, necessary to l»e stateil, being a
banish uieut fn)ui Minorca to Carthaafena, he
atates it with this videlicet. To this declaration
the df leudunt put in two pleas; fir8t,Mot Guilty;
and then he pleads, that he was Kovemor of
Minorca, bv letters patent from the crown, and
that the defeudant was raismjf sedition and
mutiny ; in consequence of which he did im-
prison him and send him out of the island,
which he alledgfes he hud an authority to do,
for that sedition and mutiny that he then was
raising. I'o this plea the plaintiff does not
demur, nor does he deny that it would be a
justification, in case it was true ; but he denies
the truth of the fact, and puts in issue whether
the fact of the plea was true. The plea avers,
Uiat the assault for which the action was
brought arose in the island of Minorca, out of
the realm of England, and no where else. To
this the plaintiff has made no new assignment,
ftnd therefore by his replication he admits the
locaHty of the cause of action. Thus then it
•tood upon the pleadings. When the trial
came on, the plaintiff went into the evidence of
his case, and the defendant went likewise into
his evidence. But, upon the |>art of the de-
fendant, evidence different from any fact al-
ledged in his plea of justification was given ;
and witnesses were called to prove that the
district in Minorca called the arraval, %vhere
the injury complained of was done, was not
within eitnerof the four precincts, but that it is
in the nature of a peculiar liberty, more imme-
diately under the fiower of the governor, and
that no judge of the island can eiercise juris-
diction there without an appointment from him.
That is the substance of their evidence.

The judge lef\ it to the jurv upon the facts
Af the case; atid they found for the plaintiff.
The defendant then tendered a bill of excep-
tions, upon which bill of exce|)tions it comes
before us. And the great difficulty 1 have had
upon both tliese arguments is, to be able clearly
to comprehend what question it is that is meant
•eriously to be brought before the Court for
their judgment. If I understand the counsel for
govarnar Hoatyn right, what they say is this :
the plea of Not Guilty is totally immaterial,
and the pka of jnstifiostion ia totally imina-
Ifffial, for it ap|w«ra oo the plainti&T's own
-^_ , ^^ ^1^^ matter arose in Minorca;

rapKcntloa to tha plea admita it : and
pIm appMn that the defendant was go-
af Jnam; and aa the inprisounent
hylhtfMllMrity of the da-
«i«kl la Inte Mopptd aU
kivt diiicied

I jury immediately to have found for the defen-
dant. Why ? There are three reasons given.
One of them insisted upon in the first argument
(but abandoned to-day) is, that the plaintiff h
a Minorqutn, born in the island of Minorca,
To dispose of that objection at once, I ahali
only ssy that it is wisely abandoned to -day.
A Minorquin ; what then ? Has not a fnlncci
of the king, born at Minorca, as good a right
to apply to the king's' courts of justice, aa a
person oorn within the aound of Bow-bell, in
Cheapsiite ? If there is no other objection to
him, would that make any ? To be sure not.
But it is abandoned, so I shall lay it out of the
case.

The other two grounds which are enforced
to-day are, if I take them right — but 1 am
under some difficulties, bi'cauRe they are such
propositions that you may ar^ue as well whe*
ther there is such a court existing as tliia which
1 am now sitting in — the first is, that he waa
governor of Minorca, and therefore for no in-
jury whatsoever that is done by him, right or
wrong, can any evidence be beard, and that
no action can lie against him ; the next is, that
the injury was done out of the realm : I think
these are the whole amount of the questiona
that have been laid before the Court. Now aa
to the first, there is nothing so clear as thai
in an action of this kind, which is for an as-
sault and false imprisonment, the defen<knty
if he hu any justification, must plead it;
and there is nothing more clear than that, if
the Court has not a general jurisdiction of the
matter, he most plead to that jurisdiction, and
he cannot take advantage of it upon the ge-
neral issue : I therefore, upon that ground, at
once lay out of the ca^ie every thing relative l»
the arraval; fi>r if he acted as a judge, it it
syuonimous to a court of record : and thonvh
it arises in a foreign country, where the tech-
nical distinction of a court of record doea nal
exist, yet if he sat in a court of justice, and
subject to a superior review, it is within the
reason of the law of England, which says,
that shall be a justification, and he would, if
he had acted according to the law of the land*
be entitled to a justification in the fact tliat it
complained of; but that must be pleaded. If
an action is brought against a person who it
a judge of record, he must lay it before the
court, b^ way of plea and justification, that Im
was a judge. 1 don't lay a stress upon the
' word reconi, but there is no colour upon the
I evidence that he acted as a jud^e of a court
'. of justice; therefore every thing stated re-
lative to the arraval, inhich is stated in the bfll
of exceptions, is nothing at all to the nurpoea.
The first point that I shall begin with is the
sacredness of the person of the governor.
■ Why, if that was true, and if the law waa aog
I he must plead it. This is an action of falac
imprisonment: prima facie, the Court Iih
junadictiou. If he was guilty of the fad, ha
must shew a special matter tiMt he did thia hj
a proper authority. What is hit proper an*
tlioritj P The lung'a cwniaittion to maka hia

m}

Fabrigat v. MoHyn,

A. D. 1773.

[230

pmxfMr, Why then, he certaioly must plead
t : but, howerer, I will not rest the answer
BpOB that. It has been sinj^led out, that in a
eshojr that is beyond the seas, but part of the
of the crown of England, thou((b
wonid lie for inioriea committed by
peraona, yet it shall not lie against the
iMUuor. Now I say, for many reasons, if it
il not lie against any other man, it shall most
■pfcitiraHy lie iqi^inst the go?emor. In e? ery

tlo the jarisdiction, you must state a iuris-
Mi ; for if there is no other method of trial,
Aat alone will give the king's courts jnris-
ielion. If an action is brought here for a
arising in Wales, yo\k must shew the
' m of the court in Wales : and in
sicry case to repel the jurisdiction of the
king's ooarts, you must shew a better and a
Mre proper jurisdiction.* Now in this case
IS other joriadictionf is shewn, eren by way
€ argument ; and it is most certain, that if the
lag's courts cannot hold plea in such a case,
mn is no other court upon earth that can do
It: lor it ia^truly said, that a governor is in the
Mara of a viceroy, and, of necessity, part of
At privileges of the king are communicated to
liAi durinff the time of his government. No
crisiiiial prosecution lies against him, and no
dvil actioo will lie against him ; because, what
wsald the consequence be P Why, if a civil ac*
lisB lies against him, and a judgment obtained
fer daaiages, he might be taken up and put in
man oo a Capias ; and therefore, locally, dur-
agtke tioie of his government, the courts in
Aeidaod cannot hold plea against him. But
b this peculiar case, it is said to have happened
■ the arraval. Why, it is stated in the evi-
iaee, that no judge can sit there at all with-
SAhia leave. If he is out of the government,
it ; he comes and lives in England,
be has no effects there to be attached:
ihere is no remedy whatsoever, if it is
■it ID the king's courts. But there is another
fcry atronir reason alluded to by Mr. Serjeant
CHJyno, which would alone be decisive. This
ii a charge against him, which, though a civil
\ has a mixture of criminality in it: it
lult ; which is criminal by the laws of

* As to this, see the Case of the hon. Robert
JahiMOii, 6 East, 583. See also the Case of
the KJnIoehs, vol. 18, p. 305.

f Speaking of lord Mansfield's judgment
ia tfaia case, Mr. Duller in bis long disquisi-
Isrial note to Co. Lilt. 391 a, Kays, ** wherever
a personal injury is doue to an English sub-
jpsi abroad, tbe remedy muNt he sought iu the
nrisdiction where the cause uf action hapiiens,
/ il ia subject to the king's jurisdiction ; if
'^ king has no jurisdiction in thai place, this
-^aarily gives the king's courts a jurisdic-
rithia, which it is brought, by the known
J of laying the venue in som^ county of

aaod. This is explained by lord Mans-
with his usual clearness and ability."
■r. Butler refers to Phill^brown v. Rvlaod,
dM. Lord Ray m. 1388, and 8 Mod. 354.

England, and is an abuse of that authority

S'ven him by the king's letters patent under
e great seal. Now, if every thing within a
dominion is triable by the courts within that
dominion, yet the consequence of the king's
letters patent, which gives the power, must be
tried here ; for nothing concerning the seignio-
ry can be tried in the place where it is. In tha
proprietary governments in America, they
cannot try any question concerning the seignio-
ry, in their own courts ; and therefore, though
questions concerning lands in the isle of Mwx
are triable in the courts of the isle of Man, yet
wherever there is a question concerning the
seigniorv, it must be tried in some courts in
EngUnd. It was so held by the chief justice
anamanv of the judges in the reign of queea
Elizabeth, upon a question arising concerning
the seigniory of the isle of Man. Or when*
ever there is a question between two provincea
iu America, it must be tried in England by
analo|fy to what was done with respect to the
seigniories in Wales bein^ tried m English
counties ; so that emphatically the governor
must be tried in England, to see whether he
has exercised legally and properiy that autho*
rity given him by the king's lettm patent, or
whether he has abused that authority, contrary
to the law of EngUnd, which governs the
letters patent by which he is appointed, iv, It
does not follow from this, that, according to
tbe nature of the case, let the cause of action
arise where it may, that a man is not entitled
to give every justification that ought to be «
defence to 4iim. If by the authority of that
capacity in which he stood he has done right,
he is to lay that before the Court by a proper
plea, and tbe Court will exercise their judgment
whether that is not a sufficient justification.
In this case, if the justification had been
proved, perhaps the Court would have been of
an opinion that it was a sufficient answer, and
he might have moved in arrest of judgment
afterwards, and taken the opinion of the Court ;
but the Court must be of opinion that it is a
sufficient answer, and that the raising a mutiny
in a garrison, though in time of peace, was a
reason for tiiat summary proceeding, in taking
him up and sending him out of the island. I
could conceive cases in time of,. war, in which
a governor would be justified, though he acted
very arbitrarily, in which he could not be jus-
tified in time of |)eace. Suppose in a siege, or
%%heo the French v^eregoinu: to invade Minorca,
suppose that the governor should think pmper
10 send a hundred of the inhabitants out of the
island, and that he did this really acting for the
liest : or suppose, upon a general suspicitm, he
should take )»eople up as spies: ^hy, upon
proper circumstances laid before the Court for
their judgment and opinion, it would be very
fit to see whether he had acted as the governor
of the garrison ou^jht, according to the law of
England and the ju!»tice of tbe case. But it is
said, if there is u law in the garrison, or if he
acts as the Spanish governor might have done
before, bow is that to lie known here?— Uow f

fSl]

U GEORGE III.

Actionjbr Fake Impritonment—

[89C

M'hy, there are ways of knomnar foreigfn laws
as well as our own, but in a diflTerent manner :
it must be |iro?ed as a fact, and in that shape
the court must assist the jury in finding oat
whnt the law really is. Suppose there is a
Frendi settlement (there is a case in point of
the sort I am stating) which depends upOn the
custom of Paris ; why, we must receive wit-
nesses with regard to it, to shew what the
custom is, just as you receive evidence of a
custom with respect to trade.

The judges in the courts of England do de-
termine all cases that arise in the plantations,
all ca8<(S that arise in Gibraltar or Minorca, in
Jersey or Guernsey, and they must inform
themselves by having the law stated to them.
As to suggestions with regard to witnesses, the
plaintifT must prove his case, and the court
must tuke care that the defendant is qot sur-
prised, and that he ha^ a fair opportunity of
bringing his evidence, if it is a case-proper in
other respects fur the jurisdiction of the court.
There may be some cases arising abroad,
which may not be fit to be tried here ; but that
cannot be the case of a governor injuring a
man, contrary to the duty of his oflSce, and in
violation of the trust reposed in him by the
king's commission. If he wants to send for
witnesses to prove his justification, and applies
to the court, they will do what'this court did in
a case of a criminal prosecution which arose
in Scotland. This court forced the prosecutor
([and would have put off* the trial from day to day
if he had not submitted to it) to suffer the wit-
nesses to be examined by a commission where
the cause arose, who could not be compelled to
come here. The court obliged them to come
into these terms ; or, if they did not, it is a
matter of course, in aid of a trial at law, to
apply upon a real ground, and not upon a ficti-
tious pretence of delay, to a court of equity to
have a commission and injunction in the mean
time; and the court will certainly take care
that justice shall be done to the defendant as
well as to the plaintiff, who must come with
witnesses to prove his case : and therefore, in
oery light in which I see this matter, it holds
empnaiically in the case of a governor, if it did
not hold in respect of any other man within
the colony, province, or garrison. But to
make questions u|M>n matters of settled law,
where there have been a number of actions de-
termined, which it never entered into a man's
head to dispute — to lay down in an English
court of justice such monstrous propositions as
that a governor, acting by virtue of letters pa-
tent under the great seal, can do what he
pleases; that he is accountable only to God
and his own conscience — and to maintain here
that every governor in every place can act ab-
solutely; that he may spoil, plunder, affect
their bodies and their liberty, and is accountp
able to nobody — is a doctrine not to be main-
taiaed; for if he is not aceouotable in thii
court, he is acooontable no*where. The king
ID council bat no jurisdidion of this matter ;
tb^caanotdo it ia aoytbapei Ibcy canool

give damages, they cannot give reparation,
they cannot punish, they cannot hold plea in
any way. WheiQever complaints have been
before the king in council, it has been with a
view to remove the governor ; it has been with
a view to take the commission from him which
he held at the pleasure of the crown. Bat
sappose be holds nothing of the crown, sup*
pose his government is at an end, and that lie
18 in Enghmd, they have no jurisdiction lo
make reparation to the party injured; they
have DO jurisdiction to punish in any shape tfale
man that has committed the injuij : how cnn
the arguments be supported, that, in an empire
so extended as this, every governor in every
colony and erery province belonging to the
crown of Great Britain, shall be al^lutely de-
spotic, and can no more be called in question
than the king of France P and this after there
have been multitudes of actions in all our me-
mories against governors, and nobody has been
ingenious enough to whisper them, that tbey
were not amenable.

In a case in Salkeld, cited by Mr. Peckbaro,
there was a motion lor a trial at bar in an ac-
tion of false imprisonment against the governor
of New- York ; and it was desired to be a trial
at bar, because the Attorney General was to
defend it on the part of the king, %vlio had taken
up the defence of the governor. That case
plainly shews that such an action existed ; the
Attorney General hnd no idea of a governor's
being above the law. Justice Powell says, in
the case of Way and Yally, in 6 >1uflem, that an
action of false'im prison II leut had been brought
here against the governor of Jamaica for an
imprisonment there ; and the laws of the
country were given in evidence. The gover-
nor of^ Jamaica in that case never thought
that he was not amenable. He defended him-
self. He shewed, 1 suppose, by the laws of
the country, an act of the asseinblv which j'lsli-
fied that imprisonment ; and the court received
it, to be sure, as they ought to do. Whatever
is a justification in the pluce where the thing is
done, ought to be a justification where the case
is tried. I remember (it was early in my time;
I was counsel in it) an action against governor
Sabine, and he was very ably defended. No-
body thought the action did not lie against him.
He was governor of Gibraltar, and he baiely
confirmed the sentence of a court-martial,
which tried one of the train of artillery by
martial law. Governor Sabine affirmed the
sentence. This plaintiff was a carpenter in the
train. It was proved at the trial, that the
tradesmen that followed the train were not
liable to martial law ; the court were of that
opinion ; and therefore the defendant was guilty
of a trespass in having a share in that sentenco
which punished him by whipping. There is
another case or two, but they don't occur to
me at present.

Let us see now what tiie next objection »,
with regard to the matter arising abroad ; and
that is a general ol^ection, that as the matter
trast nbnid, it cannot be tried hen in Bng*

tff\

Fttbrigas v. MostytL

A. D. 1775.

[SSI

had. There is « formal distinctioa tliat prt-
fiilt ID oar eourta, and ItkewiMe a subataotial
•w aa to the locality of trials. The substantial
dirtiactioa is, where the proceedingf is in
nm, and where the effect of the judgment
cnneC be had if it is laid in a wrong place.
His is the ease of all ejectments where pos-
flSBOQ is to he delivered by the sheriff of the
SMsty : and as trials here are in particular
SMSties, the offieeni are county officers; there-
kn the judgment could not ha?e effect if it
was Mit laid in the proper place and in the pro-
per county. But there likewise is a formal
fctiutlioD, where, perhaps, complete justice
cssM he done, let it be laid in what county it
■ight ; that is mere matter of form as to esses
that arise within the realm : but even with re
fud to matters that arise out of the realm, to
he sore there is a distinction of locality too ;
kr there are some cases that arise out of the
icahn, that ought not to be tried any where but
is tlie county where thev arise, as the esse al-
loded to by serjeant Walker. If there is a sort
tf fighting in France between two Frenchmen,
and ihey happen both casually lo be here, and
aa action of assault is brought by the one
agsiost the other, which chart^e a criminality
ISO, that it is dune against the kinar's peace,
aad the laws and customs of England ; in that
case it nsay be a very material question whe-
Ihtr that could be mamtaineil here: for though
it is not a criminal prosecution, yet it has that
sort of criminality that, perhaps, without giring
aa opinion, it ought to be tried by the laws of
that country where both parties are subjects;
it may he a substantial obj(*ction of locality. So
llewise, if it is concerning an estate in ^
favi^ country, where it is a matter of title
md not of damages, it roa}^ be a substantia)
teioction. There is likewise a question of
ftrm, and that arises upon the trial ; for trials
ia England being by a Jury, and the kinjj^dom
hnmg divided into counties, and every county,
ii respect of trial, considered almost as if a
aepvate kingdom or principality, it is absolute-
ly necessary that there should be some county
where the action is particularly brought, that
there may be a process to the sheriff of that
coonty, to bring a jury from thence to try it ;
and that is matter of form, which goes to all
cases that arise abroad. But the law makes
a distinction between transitory actions and
Iscal actions. If the matter which is the
caose of a transitory action arises within the
realm, it may be laid in any county ; the place
is not material: and if an imprisonment in
Middlesex, it may be laid in Surrey; and
though proved to be done in Middlesex, the
place not being material, it does not at all pre-
vent the plaintiff recovering damages : for the
eace of transitory actions is never material.
ut where, by particular acts of parliament, it
is made so, as in the case of churchwardens
and constables, and other cases that require the
action to be brought in the county ; there, by
the force of the act of parliament, the objection
li fttal: hot otherwise it mutt be laid in any

I

eonnty in England, let it be done where it will :
the parties bad an opportunity of applying to
the court in time to change the venue. But if
they go to trial without it, that is no objeo-
tion ; and all actions of a transitory natnre that
arise abroad may be laid as happening in an
English county. But there are occaaions which
make it absdately necessary to state in the de-
claration, that it really happened abroad ; as in
the case of specialties, where the date must be
set forth. When an action is brought npon a
specialty which bears a date, if that specialty is
set out, or if oyer is prayed of it, by which the
place where it was made must appear; if the
declaration states it to hare been made at WesI-
minster, in Middlesex, and ufNin producing the
deed it bears date at Bengal, ttiere is a variance '
between the deed and the declaration, which
makes it appear to be a different instrument. I
don't put lue case, though there are some in the
books that seem to me to have confounded the
statute of the 6th of Richard the second, there-
fore I don't put the objection upon the 6.th of
Richard the secoud ; but it goes singly u|kmi this :
if yon don't state the true date or true description
of the bond, it is a variance. W bat does the law
in that casef (and it has done it for hundreds
of years) Why, the law invented a fiction, and
has said, ** You ahall set out the description
truly, and then give a venue only for form for
the trial; videlicet ^ in the county of Middlesex^
or any other county you please." Did any
judge ever think that when the declaration
said, in fort St. George in Cheapside, that the
plaintiff meant that it was in Cheapside ? No ;
It is a fiction in form : every country has its
forms : it is for the furtherance of justice that
these fictions were invented ; to i^et rid of for-
malities ; to further and advance justice. This
is a certain rule : you never shall contradict
the fiction so as to defeat the end for which it
was invented, but you may contradict it for
every other purpose. Now this fiction is in-
vented barely for the mode of trial ; to every
other purpose you shall contradict it, but not
for the purpose of saying. You shall uot try it.
It is just like that qne»iti<tn that was long agi-
tated and finally determined some years ago,
npon a fiction of the teste of writs taken but in
the vacation, which bore date as of the last day
of the term. That is a fiction of the Court.
You never shall contiadict that fiction, and go
into the truth of the case, to destroy the wnt,
and shew it a bad writ. Why P Because the
Court invented the fiction to make the writ
good, for the furtherance of justice, that it may
appear right in the form ; but for every other
purpose in the world you may contradict it. I
am sorry to observe there are some sayings
which have been alluded to, inaccurately taken
down. Perhaps there were short-hand writers
in those days, as there are at present, who mis-
take every word they hear, and, being unable
to correct it, have printed it improperly : but
to say, that as meu they have one way of think*
ing, and as judges they have another, is an ab«
surdity. Ko; they meant to support the fio*

935]

n GEORGE III.

Action Jur Fake Imprisonment-^

[236

lion. I will meDtion a case or two to shew that
is the meanings of it There is a case in 6
HodeiD, 208, of Roberts aod Hama||re. The

gUuntiff declares, that the defendant became
oond to him at Fort St. Davids in the East
Indies at London, in such a bond. Upon de-
murrer the objection was, that the bond ap-
red to ha?e been sealed and delifered at fort
David's in the East Indies, and therefore
the date made it local ; and, bv consequence,
the declaration ouf^ht to have Geen of a bond
poade at Fort St. David's in the East Indies,
▼iz. at Islinjg^ton in the county of Middlesex, or
in such a ward or parish in Liondon ; and of
that opinion was the whole Court. You see
how this case is stated. But 1 wilt state it from
another book, where it is reported more truly ^
I mean in lord Raymond, 1042. There it is
stated thus. It appeared by the declaration,
that the bond was made at London, in the ward
of Cheap. Uiion oyer, the bond was set out,
and it appeared on the face of it to be dated at
fort St. George in the East Indies. The de-
fendant pleaded the Tariance in abatement, and
the plaintiff demurred, and it was held bad;
but the Court said, that it would have been
good, if laid at Fort St. George in the East
Indies, to wit, at London, in the ward of
Cheap. What was the objection there ? Why,
they had laid it fulsetv. They had laid the
bond as made at London. The bond is pro-
duced, and appears to be made at another
place : that is a variance. You must take the
iN>nd as it is. Then how do you get to trial ?
Wliy, introduce, a fiction, and the formality
fi'ifea you the trial in that county by the vide-
licet ^ and the bond is truly described. A case
was quoted from Latch, and a cage from Lut-
wyche, ou the former argument ; but 1 will
mention a case posterior in point of time, where
the Court took it up upon the true ground,
Dvliere both these cases were cited, and no re-
gard at all was paid to them ; and that is the
case of Parker and Crook, 10 Modern 255.
This was an action of covenant upon a deed
indented. It was objected to the declaration,
that the defendant is said in the declaration to
continue at Fort St. George in the East Indies ;
and npon the oyer of the deed it bears date at
Fort St. George ; and therefore the Court, as
was pretended, had no jurisdiction. Latch,
fol. 4. Lutwyche, .OG. Lord chief iustice Par-
ker said, that an action will lie lu England
upon a deed dated in foreign parts, or else the
party can have no remedy ; but then, in tiic
declaration, a place in England must be al-
ledged, proJomiA, Generally spec^king, the
deed, upon the oyer of it, must be consistent
with the declaration ; but in these cases prop-
ter neccssitatemt if the inconsistency be as little
as possible, not to be regarded : as here, the
contract, lieing of a voyage which was to be
performed from Fort St. George to Great Bri-
tain, dors im|>ort, that Fort St. George is dif-
ferent from Great Britain : and atUr taking
time to consider of it, in Hilary term the plain-
iiir bad his judgtncDt^notwitltttaBding the ob-

jection. Why then, it all amounts to this:
that where the action is substantially such a
one as the Court can hold plea of, as the mod«
of trial is by jury, and as they must be called
together by process directed to, the sheriff of
the county, matter of form is added to the fic-
tion, to say it is in that county ; and then the
whole of the inquiry is, whether it is an action
that ought to be maintained. But can it lie
doubted, that actions may be maintained beret
not only upon contracts, which follow the per-
sons, bat for injuries done by subject to subject ;
especially for mjuries where the whole that is
prayed is a reparation in damages, or satisfac-
tion to be made by process against the persoo
or his effects within the jurisdiction of the
Court? We know it is within every day's ex-
perience. I was embarrassed a great while to
find out whether it was really meant to make
a question of it. It is so in sea- batteries ; but
is It to be supposed that the judge thought it
happened in Cheapside, when the partjr proves
where the place was? In sea-batteries, the
plaintiff of\en lays the injury to have been done
\n Middlesex, and then proves it to be done a
thousand leagues distant, on the other side of
the Atlantic. There are cases of offences on
the high seas, where it is of necessity to lay
in the declaration, that it was done upon
the high seas ; as the taking of a ship as a
prize. A case of that sort occurs to my me-
mory : — the reason 1 remember it is, because
there was a question about the jurisdiction.
There likewise was an action of that kind before
lord chief justice Lee, and another before me, in
which I quoted that determination, to shew that
when the lords commissioners of prizes have,
given judgment, that is conclusive in the action ;
and likewise, when they have given judgment,
it is concluitive as to the coNts, whether they
have given costs or not. But how is that actioa
laid ? It is necessary to be laid, that his ship waa
taken or seized on the hiiih seas, videlicet^ in
Cheapside. Now is it seriously contended, that
the judge and jury, and counsel, who trieil the
cause, fancied that ship was sailing in Cheap-
side ? No ; it is plain sense ; the sliip was
taken upon the high-seas, for which an actioa
lies in England ; and you say in Cheapside,
which is saying no more than that, I pray this
action may he tried in London ; it is plainly
understood: but if you offer reasons of fact
contrary to the truth of the case, there is no
end of the embarrassment. At the last sittings^
there were two actions brought by the Arme-
iii Ml merchants for assaults and trespass in the
Esbt- Indies, and they are very strong autho-
rities. >-MJeant Glynn said, that the defendant,
Mr. Vert I St, was ably assisted. So he was;
and by men who would have taken the objec-
tion, if' they thuught it had been maintainable:
and that was atier this case had been argued
once ; yet the counsel did not think it could
be su|»ported. Mr. Verelst would have been
glad to have made the objection : he would not
nave lefi it to a jury, if he could have 6to|»prd
them short, and said^ '< You tball not try it al

837]

Tahrigat r. Mostt/n.

A. D. 177».

[«8

•U.'' I liATe had some actions before me, go-
isgralber further than these transitory actiuns ;
fut isy goiBg to caws which in Eugland would
It local actions : and 1 remember one, I think
h waa ao action brought against captain Gam-
Vcr, who by order of admiral Boscaweu bad
yaUed down the houses of some suttlers who
nppUed the navy and. sailors with spirituous
i|Mrs; and whether the act was right or
vroog, it was certainly done with a good in-
teatioD OD the part of the admiral, for the sai-
lors' health were affected by it. They were
palled down. The captain was inattentiTc
cBongh to bring the gentleman oTcr in his own
sh*p, who would never have got to England
stnerwise ; and as soon as he came here, he
was admed that he should bring an action
Minal him. He brought his action, and one
SI the eounts in the declaration was for pulling
dawn the houses. The objection was taken to
Ibe eoont for pulling down the houses; and
the case of 8kinner and the East India Com-
pany was cited in support of the objection. On
Ibe other side, they produced, from a manu-
seript note, a case before lord chief justice
Eyre, where he o?er-niled the objection ; and
I ofcr-niled the objection upon this principle,
that the reparation here was personal, and
Isr damagea ; that there would be a failure of
joslicey ror it was upon the coast of No?a
^ ' I, where there were no regular courts of
^ but if there bad been, captain Gambier
It nerer go there again ; and that the rea-
ssn of locality in such an action in England
did not bold in this case. I quoted a case of
aa iniory of thaiaort in the East- Indies, where
eiea io a court of equity lord Hardwicke had
fcecled aatisfaction to be made in damages.
Thai case was not fuUy argued ; but this was
aigiied, and there were larcfe damages gi?en
against Gambier. I do not quote it for the
apinioa 1 was of there, because that opinion is
my likeiy to be erroneous ; but I quote it for
ibis reaaoB, that there were large damages
fireo against captain Gambier : and though he
vaa not at the ezpence, for he acted by the or-
dera of admiral Boscaweu, yet the admiral's
RpresentatiTea paid the ezpence, therefore their
inelination was to hare got rid of that verdict if
they eonid ; but there never waa any motion
iar a new trial. 1 recollect anotbt* r cause that
on before me : that was the case of ad-
Pailiser ; there the very gist of the ac-
was local. It was for destroying fishing-
birta opon the liabrador coast, it was a nice
^ucstiuo; when the Canadians settled, and

when they had a right to it. It was a dispute
between them and the fishermen in England.
The cause went on a great way : the defendant
would have turned it short at once, if he could
have made that objection ; but that objec-
tion was not made. There are no local courta
among the Esquimaux Indians upon that part
of the Labrador-coast. Whatever injury had
been done there by any of the king's officers
would have been altogether without redress, if
that objection of locality would have held : and
the consequence of that circumstance shews,
that where the reason fails, even in actions
which in England would be local actions, yet
that does not hold to places beyond the seas
within the king's dominions. That of admiral
Palliser's went off ufion a proposal of a re-
ference, and ended by an award. But as to
tranaitory actiona, there is not a colour of doubt
but that every action that is transitory may be
laid in any county in England, though the
matter arisea beyond the aeas : and when it is
absolutely necessary to lay the truth of the
case in the declaration, there is a fiction of law
to assist you, and you shall not make use of the
truth of the case against that fiction, but you
oMiy make use of it to every other purpose. I
am clearly of opinion not only against the ob*
jections made, but that there does not appear a
question upon which the ohjectiona could arise.

The other judges declared themselves of the
same opinion, and the Court ordered, ** That
the judgment should be affirmed."

In consequence of the above judgement, on
Saturday the 4th day of February 1775, the
gentlemen who were bail for governor Mostyn,
to prevent his being taken in execution and
carried to prison, were obliged to pay to Mr.
Fabrigas the sum of S,000/. for his damages,
and 159/. which the Court amerced the go- .
vernor in costs.

I have not ventured to alter the nonsensical
passages in the former report of this case. The
case in Shower, which is alluded to in p. 115,
I suppose to be that of sir Richard Dutton
V, Howell and others, executors of Witham«
p. 24.

See the Case of Louisa Calderon «. General
Pictoo, B. R. A. D. 1809.

See, also, the following Case of the Island of
Grenada (Campbell v. Hall), and the Canadian
Freeholder, as therein cited.

SS9]

15 GEORGE IIL The Case ^f^e Island cf Grenada^ [flO

550. The Case of the Island of Grenada; in relation to the Payment
of Four and one-half in the Hundred of Goods exported there-
from;« between Alexander Campbell^ esq. Plaintiff, and
Wm. Hall, esq. Defendant, in the Court of KingVBenchy be-
fore Lord Chief-Justice Mansfield : 15 George III. a. d. 1774.

£The foUowiog acooont of this Case is com-
piled from the Reports of Mr. Lofft and Mr.
Henry Cowper, together with the short-band
writer's report of the Arguments of Mr. Mac-
donald (now Lord Chief Baron of the Ex-
chequer), and Mr. HargraTe. Both those
learned persons hare assented to the publi-
cation of this Manuscript, which was im-
parted to roe by Mr. Hargrave, with his ac-
customed kindness of assistance in the im-
proFement of this Work.]

This cause came on to trial before the right
honourable William lord Mansfield, on Friday
the 2d of July, at the sittings aRer Trinity
term, for the city of London, at Guildhall, when
a special Terdict was found. The proceedings
in the cause were as follows :

* Trinity-term, in the Idth year of the reign of

^ king George the third. «

* London to wit. Be it remembered, that

* heretofore, that is to say, in Easter-term last

* past, before our lord the king at Westmins-
^ ter, came Alexander Campbell, esq. by Ben-

< jamin Uosewell, his attorney, and brought in

* the court of our said lord the king then there,

* his bill against William Hall, esq. being in

< the custody of the mar&hal of the Marshalsea

* of our said lord the king, before the king him-

< self, of a plea of trespass on the case ; and

* there are pledges for the prosecution, to wit,
*John Doe and Richard Roe. Which said

< bill follows in these words, to wit, London, to

* wit, Alexan«ler Campbell, esq. complains of

* William Hall, esq. being in the custody of the

* marshal of the Marshalsea of our lord the

< king himself, of a plea [of trespass on the

* case ; and also] for that wtiereas the said Wil-

< lism, on the first clay of January, in the year
^ of our Lord 1773, at London aforesaid, to wit,

* in the parish of 8t. Mary-le-Bow, in the

< ward of Cheap, was indebted to the said

< Alexander in the sum of 20/. of lawful money

* of Great Britain, for the like sum of money

* by the said William before that time had and

* receif e<l, for and to the use of the said Alex-

< ander : and being so indebted, be the said

* William, in consideration thereof, afterwards,

* to wit, on the same day and yoar aforesaid, at

* London aforesaid, in the parish and ward
« aforesaid, undertook, and to the said Alei-

* ander than and there faitbfnilj pnHniieditluit

« be the said William wonld well and truly pay
' and satisfv the said Alexander the said sum of

* money wnenever he the said William should
*• be thereunto afterwards required. Yet the

< said William, not regardinic his said promise

* and undertaking, but contriTiog and fraudii-

* lently intending crsAily and subtilly to de-

< ceive the said Alexander m this behalf, hath not

< paid the said Alexander the said sum of money,

* or any part thereof, (althonffh the said Wu-

* liam afterwards, to wit, on the same day and

* year aforesaid, and often afterwards, at Lon-

* don aforesaid, in the parish and ward afore-
said, was by the said Alexander required so

* to do) but to pay the same, or any part there-

< of, to the said Alexander he the said William

< bath hitherto altogether refused, and atUI

< doth refuse, to the damage of the said Alex-

* ander of 20/. And thereof he brings bis

* suit, &c.'

'* And now on this day, to wit, on Friday
next after the morrow of the Holy Trinity, in
this same term, (to which said day the said
William had leave to imparle to the said bill,
and then to answer, &c.) before our lord the
king at Westminster, comes as well the said
Alexander, by his attorney aforesaid, as the
said William, by Robert Want, his attorney ;
and the said William defends the wrong and
injury. When, &c. and says he did not
undertake and promise in manner and form as
the said Alexander Campbell above complains
against him. And of this he putti himself upon
the country ; and the said Alexander doth the
like.

** Therefore let a jury thereupon come before
our lord the king on Wednesday next after
three weeks of the Holy Trinity, by whom the
truth of the matter may be better known, [and
who neither are of kin to the aforesaid Alex-
ander nor to the aforesaid William] to reco^
nize the truth of the issue between the said
parties, because as well the said Alexander as
the said William, between whom the issue is,
have put themselves iipun the said jury. The
same day is given tu the party aforessid.

** Afterwards the process being continued
between the parties aforesaid, of the plea afore-
said, by the jury between them being respited
(before our lord the king, at Westminster, enlfl
Saturday next after the morrow of All 8o>*
then next fulk»wing, aolM the *^*
tmsty and weH bderiw*
fidd, hie

CamphcU V. HaU.

W Mtie on F> iday the lil dny or July

C Guililhall uf iliR L'lly ul' Ijonilon, RCcnrd'

> lh(t Torm of Ihe sMtule in iticb ca»e

kmnd |ir<»iilc<1) Tar dernull of jurors, be-

^^» none of tbrni did appear.

" 4| wbich ilo^, bvrore our Inrd Ihe king'
« WpatrainsUT, cRine (he aroresatd Atexaodcr
CtApfaeH, by lh« saiil B^nJEimin Rnipwell, bis
flMney aturMihl, Arid tlie lajd cbicf justtce,
trftn <*b«nt iIh inii>> wh* iriid, smi liilber his
rvenrd had in thoe words, lo wir, '■ ■ After-
' varrfi, that n in say, nn the itny *nd at (he
■ftbee whyn ronturneil, beforp the righl

■ liOMWraMe WiOiani. lord M*intiv1<1, iheebief
■jadJM within written, John Way. suntlemftn,
'Wn^ naaoUted unio hln according to the
' bm or the dalnte In Ihat vane mide ind nn>-
' tried, femes an wHI the wilhin namei) Alex-

■ aaJer Campbell, emf. by bis itioroey within
' «wncd, ■<« Ihe wiiliin named Willlani HatI,
' et^. by his Dttornry u-ttbin menlioned.

■' ■ Ami the jarors of Ihe jury within men-
'led hrios sufflnioneil, soineol' ibem, that

■ to «y, Anthony Hitrhiiiore. Peler Bostock,
[iifid ('hsmbere, JaniPB L« Molle, John
«rltim-iiii, Jnshun Bedshew, and Siltanns

■ fifoi*. erne, and are sworn upon Ihni jnry;
' (oil lT,->ii«e ihe residue of the jiiror« of the
' Mine j'l'V dii not Bi'pear, Iherel'ore other per-

■ wfo^ "t lli'iie BtandiriB liy ibe court, by the
' (hrrifla of the city anil cntinty aforeaaid, at
' Ihcrrqursl of ihe said Alrxto'li'r, Bud by (he
' fDrnmaud o1' the sniil chid' justice, are now

■ •^•Ijf mH down, w hose names are fiW io Ihe
• ifbm wriliei) lunnel, aeeordini; to the form

u thct f

«..r r

■ .W WHieh sbM jumrs, so newly nel
<■■•«, ilml Is tn aay, Jol>n Lee, Willl^im Ker-
., Cbafin Huui^ham, John G<>riiMt]. and

'IrHurJ Hull, bein; required, come, whn,
ii;-lher with tlie uidniher jurors before i»n-

• ai«(|ed, anitswnm to declare the Inrtli of

c wiihin cootenu, being elected, tried, and

'•len, iipiin their oaths say,

' ' ThJiiheialtndorUrenada.inthe West-
l--i«». wa^tn Ihe iiosseaeioa of ihe French
Lirif until it WHS cnn(iuered by ihe British
I'-naiM 17*2. And timt during that posses-

■ ••■ lh«r<> "Vre certain CiKtoms and impost

rnrtadi^

) Bndool n

nnrted and e:

Nt MMlMrTly of hn inoit Christian majesty.

• m£ ihM in the said yew iroe, 'be said island
*«» eo»|wrcd hy the kitte nf Great Brilaln,
■MaiiA opM war with the French kini{; and
•Art ikaMud kslandoTtirenada ■un'cndcred to
'A* Bniish arm* upon the Kame article* of
■•■Inilallim aa had be^n befi>re i-ranted to Ihe
•wMtanunr ihe island of MuriioiM, u|ion
'lb* (BrrtBder ihertof lo the BHliih arms.

* Im* tbai in the ■nulet of capiliitatinD de<
■ a—ill hv and rranii'd tn the itihsbltanlf of
'ttPMidlaUMlul Maninico, upon iheaurren-

B Briihh arms, dated the
re Ihe tbllawing

tlia!lb«>triot<y

A. D. 177*.

[84*

' neuter, and shall nol be nliliifeil to tale arma
' against his most Christian mnjesiy ; nur even
' aflinsl any other power.

" ' Answer — They become snbjeciK of bis
' Briton Dtc majesty, and mtlil take theoalh of
' allfginnce, bul snail nnl I'e obliered to tuke
' Brma a^inst bis most Chrialiun inajesly until
' a peacb mat determine the l'«ie of the islnnil.

•■ ' Article t]le tilth— Thet shall pmerrelheir
' citil govermnent. their laws, eustiiiRR, ond
' ordinances ; justice kIihII be administered by
■the same officers who are now in eirploy-
' meot ; and ihere shall be a reifiilaiiiin made

* for the inleriur police between the noremur i>f
'his Britannic msjeslv end the iiihabilnnU:

* and in ease that ul liie pearc Ihe ii<[niid sliall
' he ceded to Ihe hinK of Great Britain, it shall
' be alluwed to the inlTsbilania In prnerre their
' polilical ^niernnient. and lo accept that of
' Anii(;uaorf<t. Chris- 0| .her'*.

" ' Answer— TTiey become Btiiish siiljerta,
' (as in Ihe inveedini; article) but MbaDcontiniie

• tn be pirerneil hy their present laws unltl hii

■ majeity'a pleasure be hnou n.

" ' Articlethe sixth- The inbabilniils, as atsa
' (be re)ii;iou3 orders, of bntli arxes, thill be
' niaintained in Ihe pr0|rerly of I heir eftecis,

■ mofeable and iinniOT<-ahte| of what natiir^
' soever, and shall be preferred in their privi.
< le^es, rights, hnnuurs, and exempliniis ; Ihei^
' free neirroes and mulatioes shall have the en-
' lire enjoyment of ibeii- liberty.

"' Granted, in rf[;ard to the rehgions orders —
'The inhahiiants.bein^siitgectsof Great Bri-
' fain will eujny tbeir properties, and llie same
' jtriTileges at in the other bis majesty's Lee-

■ Ward islands.'

" ' Anicfe (he seienlh— They shsH not pay tii

■ bis majealy brv oilier duties ttian those n hicli
' hove liecn paid bltberin to his moat Christian
■majesty; and the capilnli'Mi of negroes ujhiii
' the same roaiini; it is paTd at present, without
'flwy oiher dian^es or imposts: and the ex-

■ fences of insiii^e, peniiuns in curates, and
' other occasional e»iieocf a, abill be paid hf

• the domain of his Britannic majesty, as ihey
' were hy that of his mosi Obrislian mtijeily.'

" ■ Anawercd in the tixth^artide, as to whil
regards Ihe iohabitants.

" ' Article the elereolh— No other than iho
' inbabitanta resident in ibis island shall, till the
' peace, pmsess any eslBles, either by acquisU
' tion, aRTeement or ulherwi-ie : but in case ai
' Ihe peace the connlry shall be eedi-d lo (he

* king of Great Britain, then it shall be per-
I milled 10 Ihe inhabitants, who shall nol be
' willing to become bis suljects, to sell their
' Mtates, moTratrie and immnreable, in whom
> they please, ami retire where they sbill ihink

■ (iriiprr ; in which caie they ahail be alloweJ

■ eonveliieni lime. [ tnswer] All suhjecH of

■ Oieat Britain may |Kii«e«s any Innils or

• hniiies by purchase. The remainder nf ihis

■ article granted, ptoTided ihey sell to British

" And the juron afnresuid, n)inn their oaiha
aforesaiil funher say— That iu ibe deliutlire
B

213]

15 GEORGE .III. The Case of the Island of Grenada-^ [944

treaty of peace aud friendship between his
BriUDoic majesty, the most Christian king^
and the kinfi^ of Spain, concluded at Paris the
10th (lav of February 1763, amongst others
are the toilowin(f articles :

** * Article the fourth^His n^ost Christian

* majesty renounces all pretensions which he

* has heretofore formed or mi«<;lit form to Nova

* Scotia, or Acadia, in all its parts ; and gua-

* ranties the whole of it and with all its depen-

* daiicies to the king of Great Britain : more-

* over his most Christian majesty cedes and
' (guaranties to his aaid Britannic majesty in

* full right Canada, with all its dependancies,

* as well as the island of Cape Breton, and all

* the other islands and coasts in the gulph and

* river of St. Lawrence. And in general every

* thing that depends oa tlie said countries,

* lands, islands and coasts, with the sovereignty,

* property, possession, and all rights acquired

* by treaty or otherwise, which the most

* Christian king and the crown of France have

* bad until now over the said countries, islands,

* lands, places, coasts, mnd their inhabitants :

* 90 that the most Christian king cedes and
« makes over the whole to the said king and to

* the crown of Great Britain ; and that in the

* most ample manner and tbnu without re-

* striction, and without any- liberty to depart

* from the said cession and guaranty under

* any pretence, or to disturb Great Britain in

< the possessions above mentioned. — His Bri-

* tannic majesty on his side agrees to grant the

< liberty of the Catholic religion to the inhabi-

* tants of Canada : he will consequently give

< the most precise^ and effectual orders, that his

* new Itoman Catholic subjects may profess the

< worship of their religion, according to the

* rights of the Romish church, so far as the

* laws of Great Britain can permit — His Bri-

* tannic majesty further agrees that the French

* inhabitants or others who had been subjects

* of the most Christian king in Canada, may

* retire with all safety and freedom wherever

* they shall think proper, and may sell their

* estates provided it be to subjects of his Bri-

* tannic majesty, and bring away their effects

* as well as their persons without being re-

< strained in their emigration under any pre-

* tence, except that of debts or criminal* |>rose-

* cations. The term limited for this eroigra-

* tion, shall be fixed to the space of eighteen

* months to be computed from the day of the

< exchange of the ratifications of the present

* treaty.'

*< * Article the ninth — ^The most Cbristain

* king cedes and guaranties to his Britannic

* majesty in full right the islands of Grenada,

* with ihe same stipulations in favour of the in-
« habitants of this colony, inserted in tlie 4th

* article for those of Canada. And the parti-

* tion of the islands called Neutral is agreed

* and fixed ; ao that those of St. Viaoent, Do-

* minica, and Tobago, shall remain in fnll right
« to Great Britain, and that of St.. Lncia shall

' be deiirercd to Fr«Mtv lo

' tracting parties guaranty the partition so

* stipulated.'

** And the jurors aforesaid upon their oaths
aforesaid further saVf that his majesty, by his
royal proclamation bearing date at Westmin-
ster the 7th day of Octitber, 1763, amongst
other things declared as follows, * And whereas

* it will greatly contribute to the speedy settling
*oor said new governments that our loving

* subjects should be informed of our paternal

< care for the security of the liberties and pro-
' nerties of those who are and shall become in-

* habitants thereof; we have thouifht fit t(^

* publish and declare, by this our proclamation,

* that we have, in the letters patent under onr

* great seal of Great Britain, by which the said

< governments are constituted, given express

* power and direction to our governors of our
' said colonies respectively, that, so soon as the

* state and circumstances of the said colonies

* will admit thereof, they shall, with the advice

* and consent of the members of our council,
( summon and call general assemblies within

* the said governments respectively, in such

* manner and form as is used and directed in

* those colonies and provinces in America,
( which are under onr immediate goveniment.

* — And we have also given power to the said

* governors, with the consent of our said coan-

* cils and the representatives of the people, so

* to be summone<l as aforesaid, to make coo-

* stitutions and ordain laws, statutes and or-

* dinances, for the public welfare and good go-

< vemment of our said colonies and of the peo-
« pie aud inhabitants thereof, as near as' may
« be, agreeable to the laws of England, and

< under such regulations and restrictions as are

* used in other colonies. And in the mean time

* and until such assemblies can be called as

* aforesaid, all persons inhabiting in, or resort-

* ing to our said colonies, may confide in our

* royal protection for the enjoyment of the be^

* nefit of the laws of our realm of England :

* for which purpose we have given power under

* our great seal to the governors of our said co-

* lonies respectively, to erect and constitute,

* with the advice of our said councils respec-
' tively, courts of judicature and public justice

* withm our said colonies, for the hearing and
' determining all causes as well criminal as civil
' according to law and equity, and as near as
' mav be agreeable to tlie laws of England ;

* witli liberty to all persons who may think

* themselves aggrieved by the sentences of such

* courts in all civil causes to appeal, under tbo

* usual limitations and restrictions, to us in our
' privy council.'

** And the jurors aforesaid, upon their oaths
aforesaid, further say — ^That bis majesty by his
royal proclamation bearing date at Westmin-
ster, the <i6th day of Alarch 1764, amongat
other things did also declare as folkiws,

* Whereas we have taken into oar considers^
' tion the great benefit that will arise t6 th«
' oooiBMivo of oar kingdoms and the interasl

* of o«r snbfcctt, froon the speedy aectlemeol

* §f Ihi isliMs of QiiMdai Iha flimadimi.

Campbell v. Hall.

• Dnaaiaki. 81. Vincent aiid Tobago, we in

ititrefore ihink fit. wilti ih<? aitrire of riur

lairy eauDCJI, to iuue thi« our roytX procln-

ni^tiua. In jinlillBh aud declare to our loring

;. i 1 ttiat we Ijate wiib ihr «dticeor our

' I e iiuncil, given tlienecessBrv powers

I • riuHs foran immediate tai\ty,»aA

i ::, iiiiu projier piriilin and diitricti, of

' "'li of (he said iilanda aa liate not biiherto

'««■ noaurrFved and diiided ; and for laying

nil Mich laods in the laid islands as are in our

I'vwer to diapose of, intn allotinente for pUn-

tiuoos of dilffrent hixe und extent, according

' u tlw nature of the lanil «tiall be mnre or Iras

' adapted U> tlie growth of BU|tnr, culfpe, cocoa,

' oHtoa, or oilier articles uf bentAcisl ciil-

' uire ; TCEertint; to as, our lieirs and BucceaaorB,

' iLcti pans iif tlie said inlands as aliall be ne-

' 'nnry for erecting fortiRcatioos ilierenn, and

<r>r all DtliCf miliiBry purposes; for glebes

' 'ur miiiiiteri, aJlutmeats tor eg lionl- masters,

'ftr wood-lands, liigh'rnails, and all other

^^■^Cn pnrpnaes; and aUo resemng such

^^^■rfi in onr islanila of Dominica and St.

^^^^Mitlt aa at llie lime of the surrendtfr

^^^■n rad atjll are in the posaession of the

^^^KcmIi, inbsbitanti of ilie aaid islands ;

^^^■U hnda it is our will and pleasure should

^^^V cniil«il to such iif Ihe asiil inhuhiiants as

■ I^ImII be inclined lo ucuepl the asmc upon

' Wm for terms absohitu, or for renewable

-rma npon certain cuiidilinns, and under

ii oprr resirictiun*. And we do herehy farther

,'ubluih and declare, thai the allolmenta for

, iintatioiia In cur inlands of Grenada, Ihe

' . madines, Tobagu and St VinceDl, shall

-nlato IVnm uoe himdred to three hundred

.-res, with unine lew nllolments ioeach island

.' fire buaitred acres; ami that the allot-

fota in our inland af Dominica, whiab is

■Tuvamied to be nni au well adapted lo ihe

luiuralion of sugar, anri which from its

' Ml— linn require* in policy to be well peopled

I' rtlhtrbilc lahabitanU, iliili lie in eeneral from
'61^ lomnhandrMl acres. Thai each purchaser
*tf lawla which hare been cleared and im-
' anitA. (ball witliin ibe apace of three monlhs
il If of ihegrani seltleand constantly
<> liie Int iKirchueil one white man
'lite womKn, for every hundred
I >tn(d in the salU lot, and in default
' itwmf tball be suhject lo the payment of
'ML prr annnm f'lr e\eTy white woman, and
' tOi, |ier aoaum fur vvery while idso, that
*iWI iHt wanliotc to complete the number.
'Thtk Hi* putchaaerof itni'lpsrad lands shall
'dHrsoid culiisali! iioe acre in etery twenty
■laMnh year, until Imif the laud so purchased
■ AaB b* cImtviI, and in default thereof ihaM
> pjr il. p«r aBDum for erery acre not cleared
< patB«aut lo Budi eonditjon. And such pur.
' ^tmtt aliall alao 1m iiiili|{ed lo settle and on-
'MMljr ll*^ upon Uie lot so purchated on«

ixiulrBl aerca aa the same thall be cleareil.
I '111 auli puicb*>«r, bcaidea the purchase
tj, abkll Im 8ub|CGl to ibe payoicut of an

[546

A. D. 1774.
' anaual quit-rent lo us.our heirs ai
' of sixpence per acre, imder the penally of 61.
' per kcre upnn non-payment thrreuf. Such
' quit-renU iu Ihe esse of Ihe purchase of ulear-

■ ed lauds tn commence from the dale of the
' nTBnt. anil the fimi |myment to be made at the
' expiration of the first year ; and in caseof ths
■purchase of the uncfeared lands, auch qait-
' rents lo commence at the expiration of iweUe-
' months from ihe lime each acre is cleared.

* That in case of failure in the payment of Ibe
' pa re base money in Ihe manner above directed,
' the purchaser shall forfeit all right lo Ibe

* lands purchased.'

>■ And Ihe jurors aforesaid, upon their oaths
afuresaid, further say, that his majesty by bis let-
ters patent, under his writ nf prity seal bearing
dale, at Westminster, the 9th day »f April 1764,
appointed Robert Meicille, esq. vapiaio general
and gorerlior in chief in and oier the wlands of
Grenada, the Grenadines, Dominica, Si. Vio-
ceal, and Tobago, in America ; and ofall other
islands and territories adjacent thereto : which
said letters pnleot are as follows. — ' Georga
' the third by Ihc i;race of God, of Great Bri-

> lain, France and Ireland, king, delender of
' the faitb, &C. To our Irusiy and well be-
' lored Koberl MelTille, esq. greeting ; whereas
' we did by our letters patent under our ^reat
' seal of Great Britaio, bearing dste al West-
' mioBler, Ibe 4lh day of April, in the first jear
'ofunr reign, constitute and appoint Charlea

* Pinfold, esq. captain- genera I, and governor in
' chief in and over our islnnds of Barbadoes,

* St. Lucia, Dominii.'a, Si. Vincent, Tobagn, and
' the real of onr islands, colonies and planta-

■ tioniin America, commonly called or known
' by the naoie of our Carnbee islands lying
' andbeingtoibe windward of Guadaloupe, and

* which then were or after should be under our

< sulgectiuD and ifovernmetil, during our will
' and [ileasure, us by the said recited letters pa-
' lent, relation being ihereunio had, may mora

■ fully and al targe appear: now know you that
' wehaveretoktuland determined, and by these

* present* do revoke and di'termine, tucb part

* and so much of the said recited leiters patent,
' and every clause, article and thin^, (bereia
' cnnluined, as relates Iu, or muotiniia, Ibe
' island* of St. Lucia, Dominica, St. Vmeeut,

■ and Tobago. And further know you, ihat

> we, rrposini; especial trust and counilence in

* Ihe prudence, courage and loyally, of yoa

< Ihe said itnbert Melvdie.ofour ea)iecialgrace.
' certain knoitWge, suil mere molion, have

■ tlinught fit in cuiislituW and uppoinl, and by

■ Iheae presenls do cnnstitutr and appoint, ynu

■ Ihe Baid Hubert Melville lo be uur capUio-
' general and governor in ubief. in and over one
' islands of Grenada, the Ureaadines, Uomi-

■ nica. Si, Vincent, and Tobago, in America,
' and of all ulher islands and territories adja-

■ cent thereto, and which now are, oi beretn-
'lore have been, tle|ieadcnt thereupon. And
' nc do hereby require and command you to

■ do and execute all ihings iu due msimcr, Ibat
' shall belong to your taid coDUOaDd, and tha

247]

15 GEORGE III. The Case ^the Idand qfGrenadi

trust we have reposed iu you according to the
several powers and directions granted or ap-
pointed you by tUis present coDiniissiou, and
the instruetious and authorities herewith
giren to you, or by suob further powers, in-
8tru«-tions and authorities, as shall at any
time hereafter l»e granted or appointed you,
under our signet and sign manual, or by our
order in our pri?y council, and according to
such reasonable laws and statutes as Aail
hprealter lie made and agreed upon by you,
with the acWice and consent ot the council
and assembly of ihe islands and plantations
under yuur gofernnnent, in such manuer and
form as is hereinafter expressed. And our
will and pleasure is that vou the said Robert
Mflville, do, alUr the publication of these oar
letters patent, and after the appointment of
our council lor our sa-d islands, m such man>
ner and form as is prescribed in the instruc-
tions which you will herewith receive, iu the
first place, take the oaths appointed to be
taken by an Act passed in ihe first year of the
reign of king George the first, entitled. An
Act lor the further security of his majesty's
person and government and the succession
of the crown in the heirs of the late princess
feiopbia, being Protestants; and for extin-
guishing the hopes of the pretended prince of
Wales and his open and secret abettors : as
alsu that you make and subscribe the declara-
tion mentioned in an act of parliament made
in the 35tb year of the reign of king Charles
the second, intitled An Act for preventing
dangers which may happen Ifrom Fopish re-
cusants.— And likewise that you take tlie
oath usually taken by governors iu the other
colonies for the due execution of the office
and trust of our captain-general and governor
in chief in and over our said islanila, and for
the due and impartial administration of jus-
tice.— And farther that you take the oath re-
quired to be taken by tiie governors of the plan-
tations to do their utmost, that the several laws
relating to trade and the plantations be duly
observed ; which said oaths and declaration
our council of our said islands, or any three
of the members thereof, have hereby full
power and authority, and are required to ten-
der and administer to you: and in your ab-
sence to our lieutenant governor of the said
islands, and to our lieutenant-governors of
eachof our said islands respectively, the said
oaths mentioned in the said act entitled, An
Act for the further security of his majesty's
person and government, and the succession of
the crown in the heirs of the late princess
Hophia, being Protestants, and for extinguish-
ing the hopes of the pretended prince of
Wales, and his open and secret abettors: as
also cause them to make and subscribe the
aforesaid declaration, and to administer unto
them the usual oaths for the doe- execution
of I heir places and trusts.— Aad ws do fiirtiier
give and grant unto vou the and RolNKt Mel-
ville, full power aaa tutfaorilgr fi
time, and il wy liat kBMtAi^

[S4S

' or by any other to be authorized by yea in

< this behalf, to administer and give ibm oaths

* mentioned in tht said act, for the finrtbar se*

* curity of his m^esty 's iierson awl goveniBieat,

* and the succession of the crown m the keirs

* of the late princess Sophia, being Protestants,
^ and for extinguishing the hopes of Ihe pre*

* tended prince of Wales, aod bis open aad
^ secret abettors, to all and every such persoa

* and persons as you sfaaU think it, u be riiaN
' at anv time or times pass into any of our said
' islands, or shall be resident or abiding there.

** * And we do hereby authorize and ioipower

* you to keep and use the public seal, which

* will be herewith delivered to you, or ahaH

* hereafter be sent to you, for sesling aU things

* whatsoever that shall p4ss the great seal of

* our said island.

*' * And we do hereby give and grant ante

* you the said Robert nelville, full power and

* authority, with the advice and constant of our

* said council to be apiminted as aforesaid, as

* soon as the situation and circumstances of our
' islands under your government will admit

* thereof, aud> when and as tdien as need sliaM

* require, to summon and call general aawm-

* blies of the freeboltiers and planters jointly or

< severally within anv of the islapds under your

* government, in such manuer as you in your

* discretion shall judge most proper, or ac-
' cording to such further powers, instructions

* or autliorities, as shall be at any tima here*

* after granted or appointed you under our

* signet and sign manual, or by our order ia

< our privy council.

'< * And our will and pleasure is, that the per-

* sons thereupon duly elected by the aiaior
' part of tlie freeholders of the respective pa*

* rishes or precincts, and so returned, shall be-

* fore their sitting uke the oaths mentioned in
' the said act entitled. An Act for the further
' security of his majesty's person and govem-
' ment, and the succession of the crown in tJie

* heirs of the late princess ijuphia, being Pro-
' testants, and for eztinGfuishing the hopes of the
' pretended prince of Wales, and his open and
' secret abettors : as also make and subscribe the
' aforementioned declaration, which oatha aad
' declaration you sliall commisskinate fit persons

* under the public seal of those our islands to

* tender and administer unto them : and uutU

* the same shall be so taken and subscribedi ne
' person shall be capable of sitting, tliougli

* elected. And we do hereby declare, that ue

* persons so elected aod qualined shall be called
' and deemed the assembly of that ishind within
' which thev shall he chosen, or tlie assembly
' ol' our said islands in general. And thai you

* the said Robert Melville, by and with the

* advice and consent of our said council aod
' assembly or assemblies, or the major perl of
' them, snail have full power and auUiority. to

* makoycoostitulet and ordain laws, statntea, aod

* ordinaocca, for the puhlie peace, wolfamp ondl

* gnodgoostOBientot oog said islands, jmstf

•ee

•adoTiho

Campbea v

Mali,

K MnI fa tlie benffit of

Wbicb nid lini, sulotea,
II to be repti|{>>Biii> I'ul,
■ n*]) be, Ki^reealile lo ibr bws and
■ •rihtanur kingdato al*Ore«t Britaia.
I] B>l sudi lawa, BlHlittH, arul ur-
wltal auiire ar durttioo toeicr,
« willun tbm muDtha dt luuDiir arier ibe
'■iiBiir thereol', tutitiniUed lo us, uuier our
'mti al mar »s'ui iaiauila. I'urour approbalinii or
' I Mllaw ce ol Uie (ame ; as ehu ilu|ilivBlca
'maaftty lb« next convcj'ancF.

■■ ■ Au<l ia ras« any or nil iiC ihe sajil liwa,
'Mtoles, auai orilinauun, ni>i U>rure cnnfirineii
'kf M, shall at ■oj' lime b« diva I ki wed, and
'M aypnH K«t. auU »o signifinl by ua, uur
'ban utd succwion, unikr ibeir siifuet or
' mga tauiual, M by nrJer of niir nr tlirii' iiriij'
■oaocil, auto >nu tkwsaul Kubtrt Alrlvillif, or
'■tbceuniiMiiiier ID cbief of ihe aaiJ ialandi

* !■ ibr Uiot beiii^;, ibcB lucb and so lUBMy of
**e B*ii) kws, siBtuiei, mnI oribnancefl, as
*«WI bar au iliHaltowed bimI nM apiirovpd, ihall
•fc^ ihmcelMlh cease, deterutiiie, and be-
*Maw Blirily toiJ and have nu eArct, anv
'^mt ■" tb« osolrary ihcreal'Doiwiibstiitiiliii|r.

** * itnil It! Ihe end Ihat nolhinn luiy be
' ■wrt in doue hy our said council or Rssem-
*liaa ID the prrjiubce of ui, our heira and «ac
' n«ui». we mil uikI onbin thpl you. the aald
' H-Wn Mrltdre, bhall dure and enjoy a nega-

* tn< mioe ia Ibe inakuif aud (laBsinK ail laws,
' ■*4Bl'«, and ordtuaBL-os, as aroreKai<l, And
'ihal«oij slioJI and may likewite, from litneto
'Ud*. ma yon >hall jud|[e necessary, adjourn,
' rwijue or disMtlve, nil general BMenlilie* as
'Mmaid.'

■ Anil <hc jnroni aforeaard, on llteir oallts

I^hhI, briber suy, Chat hia exoelleocy Itn-

I HeKille, esq. arriied in Grenada on tlie

k«( Deevinber, 1764, and in conwquence of

I leittra paient, took upon liini

Igavetuolenl of the aanie, and Ibe utUer

' I Ihewia named. And that. In conee-

ntioned lelt«ri palenl. a

J of ill e governor, coudcII, andasaembly

» Md itltnd of Grenada was beld there in

■■•iMtor «ad of ibe year 1765.

"JkmA lllBl hit majeily, by his letters patent
vAiv ibe i^rest seal (rf Great Britain, branny
*« at WeMminsler Ihe SOth day of July, in
ibe rnoMh year of bin reign, and m the year of

I offr

lalf

a uud after Ibe \

fB oeot. in »pvuie abouli

exb <tay of MeiHemtiet then

Mieil aail paiil lo bis heirs a

mi 0)100 ajt dead uoinmodilies of Ibe yrowlb

M^pniduoa of the said islawl of Grenada ilial

AaaU be «b[>ped •>« fi-om the same, in lieu

rfMciu**nnand iRi|inet thiiies lo ibat lime

htoaaidaatnf the said island, under ibe aulho-
ttj mf ki* moil Clirisiiao majesty. Wbtch
■M Micra paiMit are in the words following:
third, by Ihe ursce of God, of
Prance, xid Irelaud, kiug, <le-

A. D. 177*. [650

ftiidf r of tbi failb, Scu. To all lo whom these
prexeittB abtll cMne, greeiiiit;: wltereas a
oerLBin imyost or cuslum nf fiiur |xiundi
and a balf in aprcic fur efery hundred weiifbl
of the C'lmiuodities of t1>e growth and produce
of Ihe ial^Dd of Borbadoes, and of ihe 1^.
ward Carribbee islauda in America, shipped
off frsm the sane, or any of ibt^iii, is paid
aud (isyahle to as, our heira and auccsssvra ;
and wltereaa the islaud of Grenada was coti<
quered by us during ihe late war, and bas
been ceded and secured to ua by the lair ireaiy
ut peace ; and whereas il is reaiouable and
expniieoi, and of ioiportaoce lo our oiber
sugar Ulanda. that ilie lilteduty sliauld lake
plaice in nur aaid islaad of Orenaila ; we have
' llHiught (il, and our royal will and pleasure ia,
and we do berahy, by Tirlna uf our prrroga-
' tiie royal, order, direct aud appoint, lliat an
' impost or cuatoni of fuar and a half per
■' cent, in specie ahull, from ftiid after ibe U(Kb
' day of ijepleniber oetl eiiauin)j: Ibe date of
ibese preaeals, he raised and paid lo in. our
'heirs and suceeasnrs, hr and upon all dead

> coinmnlilies of Ibe ti">"l'< or pro'loce of nur
' naid island of Greonda tliat aball he abipped
' off from the auae ; in lieu of all cuatuuia aod

> impost duties hiiberlo L-ulleoted upon ^rowlB
' imported and exported lolo and oiil uf the s«d
' ixlaad under the aulUoriiy of bis inuA Chris-

> lian majesty : and that llie same shall be col-

> lected paid, and leviiMl in suck manner and
' by such mcana, and under audi jMnaliics and

■ furleiiures as ibe said impost ur custom of
' tour and a balf per cent, is, aud may now be
' collected, paid, atul li'vied iu oar said island
' of Barkidoes, and our Mid Loeward islands.

" ' Aud we ilo hereby retjuire and command
' the prenenl governor or commander in chief,
' and Ihe governor or cuminnnder in chief tor
' the lime bvinic, and Llie oflicei'S of our ciia-
' luiiia in ibc aaid iaianil "f Grenaila, now and

< horealler. for the tinie being, anil all ulliera

* whom it tnav cnncern, Ibat they du respec-
' lively lake care lo collect, levy, and Iu reoeivn
' the said impost or ousiom, according in our
•royal will and pk-astire, bigniQed by these

" ■ And whereas a poll-tax was levied and
' pnid by Ihe iuhahitanla nf oik si^d island of

■ Gmiiida whilst it was UQ'ier subjection tn bis
' most Christian iRq>>siy, il is onr n>yal will

■ and pleasure thai sucb poll-lax as wau levied,

• collei'tnl and paid by the inhabitants of the

• said island whilst il was under subjeclion to
' his must Chrtsiian majesty, shall becunlinued
' lliereiB duriag our Tiiyal will and pleasure;

■ and Ibat Ibe same shall be cuUeuied, levieil,

> anil [laid to uis our heirs ami sucvcssiirs, at
' such limi-Kand in such manlier, and liy such
' ways anil means, uml under suoli |H;oBlti«s

■ and fartbiiures, and upou such terms, anit
' with aoeh privilevts and esemptionB a': Ihe

* same wa» colleeled, levied, nod paid whilst Ike

< asid islBHl was under such aii^Miun to bis
' nioslCbristiau majealy, inasmuch as itresaiHS
' ar«D»t cotttrary to the laws of Great Bntatn.

S51]

15 GEORGE IIL The Case of the Island of Grenada^ [S52

« * And that the aooount and namber of the

* inhabitants and slaves therein shall be, from

* time to time, kept and delivered iu by such

* person and persons, and at such time and

* times, and ander such regulations, sanctions,
' penalties and forfeitures respectively, as and

* under which the same were taken, kept and
' delivered in during^ the time the said island

* was subject to his most Chrisiian majesty, as

* aforesaid, in as much as the same are not con-

* trary to the laws of Great Britain.

** * And we do hereby require and command

* the present g^overnor or commander in chief,

* for the time beiniif, of our said island of

* Grenada, and the several officers of our re-

* venue, now, and for the time being, and all

* others whom it may concern, that they do

* respectively take care to collect, levy, and re-

* caj||e the money arisinip and to arise by the

* said tax, and to pay and account for the same

* to the receiver general and collector of our

* casual revenue in our said island, ^br the time

* being, according to our royal will and plea-

* sure siu^ified bv these presents.*'

** Which said letters patent were afler wards
duly registered in the said island, and were

Sublicly announced by his excellency Robert
[elvilie, esq. in the month of Junuary 1766,
immediately succeeding his arrival in the said
island of Grenada.

" And the jurors aforesaid, upon their oaths
aforesaid, farther say, that the said duty, of
four and a half per cent, before the making of
the said last mentioned letters patent, was and
yet is paid in the island of BarMdoes, and the
Leeward Caribbee islands, in pursuance or by
virtue of acts of assembly passed in the same
islands hereinaAer set forth.

*' And the jurors aforesaid, upon their oaths
aforesaid, farther say, that by an act of as-
sembly of the island of Barbadoes, in the West-
Jndies, passed in the said island on the 13th
day of September, 1663, intitied, ' An act for

* settling an impost on the commodities of the

* growth of that island,' it is amongst other
things recited and enacted as follows :

' Whereas our late sovereign lord Charles

* the first, of blessed memory, did, by his let-

< ters patent under the great seal of England,

* grant and convey unto James, earl of Car-
« lisle, and his heirs for ever, the propriety of
' this island of Barbadoes; and his sacred ma-
•jesty that now is hating by purchase in-

< vested himself in all the rights or the said earl

* of Carlisle, and in all other rights which any

* other person mayclaim from that patent.or any

* other, and thereby more immediately and par-

* ticularly hath [having] taken this island unto
' his royal protection : and his most excellent

* majesty having, by letters patent under the

* great tteal of England, bearing date the 13th of
' June, in the I5th year of his reign, appointed

* his excellency Francis, lord Willoughby of

* Parham, captain general a!id chief governor
' of Barbiidoes, and all the Carribbee isiandb,

* with full power and authority to grant, odd-
' firm, and assure to the iubabitaDlaMlbe

' and their heirs for ever, all lands, tenements,

* and hereditaments, under his maieaty's great

* seal appointed for Barbadoes and the rest of
' the Carribbee islands, as, relation being there-

* unto had, may and doth more at large appear.

** * And whereas, by virtue of the said earl of

< Carlisle's patent, divers governors and agents
' have been sent over hither with antbority to

* lay out, set, grant, or convey in parcels the

* land within this island, to such peraons as

* they should think fit, which was by them, in

* their respective times, as much as in ibem
' lay, accordingly performed. And whereas

* many have lost their grants, warrants, ajid
' other evidences for the said lands ; and others,
*• by reason of the ignorance of thoae timet,

* want sufficient and legal words to create in-

* heritances tothem and Uieir heirs; and others

* that never recorded their grants and war-
' rants ; and others that can nmke no proof of

* any grants or warrants they ever had for their

< lauds, and yet have been long and quiet pos«

* sessors of the same, and bestowed great

* charges thereon. And whereas the acknow^

* ledgment of 40 pounds of cotton per bead,

* and other taxes and compositions formerly

* raised to the earl of Carlisle was held very
' heavy. For a full remedy for all the defects

* afore related, and quieting the possessions,

* and settling the tenures of the inbabitanta of

* this island, be it enacted by his excellency

* Francis, lord Willoughby of Parham, and

* his council, and gentlemen of the assembly,

* and by the authority of the same, that, aot-

* withstanding the defects afore related, all the

* now rightful possessors of lands, tenements

* and hereditaments, within this island, acoord-

* ing to the laws and customs thereof, may at
' all times repair unto his excellency for the
' full confirmation of their estates and tenuref,

* and then and there shall and may receive

* such full confirmation and assurance, under

* his majesty's great seal for this island, as

* they can reasonably advise or desire, accord-
' ing to the true intent and meaning of this act.

** * And be it farther enacted, by the authority
' aforesaid, that all and every the payments of

* 40 pounds of cotton per head, and all other
' duties, rents, and arreai s of rents, which have

* or might have lieen levied, he from henceforth
' absolutely and fully released and made void ;
' and that the inhabitants of this island have
' and hold their several plantations to them end
' their heirs for ever, in free and common soc-
' cage. Yielding and paying, therefore, at the

* feast of St. Michael every year, if the same

* shall l>e lawfully demanded, one ear of Lidiao

* €M>rn, to his majesty, his heirs and successors

* fur ever, in full and free discharge of all rente

* and services for the future, in consideration of

* the release of the said 40 pounds, end in con*
' sideration of the confirmatioo of ell
' this island, as aforesaid, end in
' meot of hie majesty'e sreoe mad .i^
' sending to end enooiel'

* eicelleiieT. of v

Ca>»p6e/l V. Halt.

net. Ui<I do reat man nwarH lliercar

111 (iiruinuc)i aa nnthing^caiiilucelh more

« Bod pTas|)crity ol' >ny jilBCi-, nnil

i<io of errrj txti^Xc jicrson lliereio,

be public revenue tlieteiit* may hf

ieMur« [iru^rtinned lo the public

s aod expeiu^es ; and bIsa well wel^ih-

[be great ch»r^;«s Ihat lli^re miisl be of

' til]' IB the malnliiiniiiif the honour and

y of bit niaJMly's aiiilinrity bere ; ihe

le meeting i>l ibe ivsiiunii ; tbe oixfti at-

T ot'thccauucil ; ibf re|iarationorihe

lb« buililiDff a sessionB- haute and a

1 aad all other public cbargea Jnciim-

'«gA«eriiiiienl; do, in conaideralioD

ite and grant unto his majesly, hia

' dniire your excellency 10 accept
ir ^rauU : and wc bniiibly pray your

J' ibal It luay be enaclnl, and he ll
J hia excellency Francis, Inril VVil-
J if Parham. captain eeoeral and
rnnr or this island ol' Barbndocs,
^^___ !t the Carribbee ialnnds, and by and

■ oiah Ibe cunieot of ibc council, and the gea-
■ '-'"«! 'if ibe oa*emhly,repr«reiilatiresof'lliig
iUnd, and by authority of the tame, that an
.>l<Di( or cuttom be, I'rnm and aflcr publica-
' n herrot', rained iipi>n the native comrandi-
11 uf ihiti inland, alter Ibe pro|K>riii>ng and iri
. -iiiat!! and form as is heteuniT «et down nnd
.^'g>oiotrd, llialia loaay, upi>n all dead oim-
.xliiiM of ibe ffrowih nr produce of Ibis
land, tbat (hall he Hbipped nff '

' |>aid t

if catcreiftn liird the king, bia

id a half

I lj< inmrs albreaaid, upnn their oatha

.iiIkt My. that, hy on act of aa<

: ' iilaod of Si. Christopher, in tbe

I'liaavd in tbe said island, in tbe

l-uid 1737, intitled, < An Act lo

i;i>ods and commodiliea of the

<< [iiiHluoe uf Ihe late Frencb part

< ^ <<i'l fit Hi. Climtnpber, nbirb ar« or

••■; 11- •liippeil olT from Ihe snid island, lo

K iwymanl of ihc four and n half ]ier cent.

M«, Mit lu aaoertain di nhat places all ihe

■to of four and a hulf per cent, sbull be

* ll ia, BiDangut other ihinfft, recited and
idHl BB followB ; ■ tVherena id and hyan act
r ntulc uf the i;eneml couDcil and ^enernl
■entity of ib« Leeward Carribbee islands,
catlnl or known by the names of
r Noil, Ki. Chrialnpher. Antigita,
1, msdc! in or about tbe var of
, and entitled. An Act liir ael-
m tbe cumniudilles of tbe
LcBward Carribbtc islands,
enttoffl of four puunds and
i»r»»wy hntTdrcd weight of

. ni'lei

ard«

A.U. 1774. [254

' snTereiga lord Cbarles Ihe 9d, then king of
England. Scotland, France, and Ireland, and
to his heirs nnd succennra for erer. aa in and
by Ibf same act or slatule, relation being
Ihereunlo had, may more fully and at large
appear.'
" < And uhrrcaa aince the making of tbe aaid
'alatuieilowil. inand by ibelatetrtalyorpeace
' and friendship concluded at Utrecht helfteeo
' tbe two cronns of Great Britain and France,
' an enlire ceasion was made hy tbe moat Chris-
tian king Lewis tbe 14ih to our Inle sovereign
■ lady Anne, queen of Great Britain, France,
' and Ireland, and lo her crown for ever, of all
Ihat pan of the island of St. Christopher for-
merly belonging In the crown of France ; so
tb at I be same late French pari of tbeaaid island
' of Nl.Chrisiopber is now become parcel of ibe
realm of Ureal Britain, and is under the anle
dominion and goveramenl of tbe crown of the

'" Andwherea»somedoubtshaTearisen,whe-
' Iher ibe said Inie French pari, so yielded np bb
' afbresaiil lothe said crown of Great Britain, be
' subject in the payment of ihe afor^aid duties
I of four and a haif per cent, so as aforeaaid, in
and by the said reciled act, given and gi-anleil
' lo our aaid late sorereisn lord king Charles
the ad. hia heirs and successors ; fur avoid-
ing, tlierefure, all disputes and conlroversiei
ivbicb may for ihe future arise within th«
samo island, touching or concerning ilie pay-
ment of the same duties, we, your majealy'a
' most dutiful and loyal subjecis John Hart,
' esr|. your majesty's captain general, and go-
' vernnr in chief of all your majesty's Leeward
' Carrjhbce islands in America, and Ihe council
and assembly of tbe said island of Si. Chris-
lopber, do humbly beseech your iDa}esty that
it miy he eoacled and declared, and it is here-
' by enacted and declared, by the king's moat
' excellent majesty, by aud with tbe advice anil
consent of the captain general and gnvernor
inchit^of ihesaid Leeward Carribbee island*,
in America, and the council and assembly of
the said island ofSt.Cbrialopber.and hy the
' suibority of the same, Ibal all and aingutar
Ibe goods and commodities of the growth and
' pi-nduce of the said lale Frencb part of tba
said ialand of St. Christnpber, and which at
' ibia time are, or hereafter aball be, shipped
' off from tbence, in order to be carried lo any
' Dlbei port or place whalsoeTer, ore, and for
' ever alttr shall be, subject and tiablr, and the
same goods and commodities, and every of
' them, are hereby made auhject and liable, to
' Ihe payment of tbe afnressid duties and cua-
' torn 9 uf lour pounds and half a pound per
' cent, in specie, lo your most aacred niaiesty,
' your heirv and successors, in such maimer
' and sort aa Ihe goods and commoililiei of the
' growtli and produce of Ihat part uf tbe said
' island known and calle<l hy tbe name of Ihe
' English part thereof, have beretotiire and
' bilberio been subjecleil and linhle unlo by
force and virtue of llie aliovu reriled act or

15 GEORGE III. The Case of the Island of Grenada^ [S56

* pointed : that is to my, Qpwi all commodilktf

* of the growth or production of this ialaiid tbtt
' shall be shipped oflTthe same, aball bejpud to

< our soveretii^n lord the kmgf, hia beirt and

< miccessors for e? er, four and a half in ipccie

* for every [fiye] score.'
" And the jurors aforesaid, upon their oaths

aforesaid, farther say, that by an act of at*'
sembly of the islatMl of AMiffoa, in the West
Indies, passed io the said island on the 19th
of May, in the year of our Lord 1668, en-'
titled, '* An Act for the settlement of the cos-'

* toDi or duty of four aad a half per eeot,' it
is, anoooKBt other things, recited and enacted'
as folloivs: ' Whereas by reason of the late
' unhappy war which arose betwixt bit royal

< nnjesty Charles the second, king of Great

< Britain, Franoe, and Ireland, dec. and the

< moot Christian kioff, in Prance, as wcM ai'
' the states general of the United NetherlHds«'

* sereral of his majesty of Great Britain hb
' territories on this side the tropic, became mlK

* ject (through conquest) unto the said Frencli

* king and his sabjects ; and, amongst others,

* this island of Antigua also waa so sohdeeii'
' by Monsieur de Labarr, lieutenant general bf

* sea and laad to the said French king, being as-

* sisted by the Cannibal Indians ; by mcanr
' whereof all the lands within this island be-'

* came forfeited unto his majesty, &e. as bj an

* act of this country, bearing date the 10th

* day of April lant past (reference being there-

* onto had) may more at large appear. Knoir
*ye, that for and in conmderation of newgrantr
' and confirmation of our said Imids, um&r tto

* groat seal appointed for Barbadoes, and the

* rest of the Carribbee islands bv lits exceHencj

* lord Willoughhy of Farham,'(Sec. we do give*

* and grant to his said majesty, his heirs and

* succesBom for erer, and most humbly desire

* your excellency to accept these our grants :
' and we do humbly pray your excellency

* that it may be enacted, and be it enacted, by

< his excellency lord Willougliby of Farhant'
' captain general and chief eni^mor of Bar-

* badoes, and the rest of the Carribbee iaiandi,

* and by and with the advice and cousent of the

* council, and gentlemen of the assembly, re-'
' presentatives of this island, and by tM an-

* tiiority of the same, that an impost or enstem

* l)e, from and after the publication hereof,

* raised upon the native cooNnodities of this

* island, after the proportion and in manner

* and fiirm as above set down, that is to say i

* u|ion all commodities of the growth or pro-

* duction of this island, that shall be shipped

* off the same, shall be paid to our sovetviga

* lord the king his heirs and successors rar

* ever, four and a half in specie for every five
*8core.'

** And the jurors aforesaid, upon their
aforesaid, farther say, that a cuatoB
was established in the said island of Ofif"
and proper officers aptninted tiiiieiB

«' And the juren afai— ^■'
afofesaid, fhratrsa-^

S55]

«« And the jurors aforesaid, upon their oatiis
aforesaid, farther say, thai by an act of assem-
bly of the island of Nevis, in the West Indies,
passed in the said island in the year of our
Lord 1664, entitled, * An Act for settling an

* impost on tlie commodities of the growth of

* this island,' it ia, amongst other things, re-
oited and enacted aa fbltows:

<< • Wliereaa our late sovcreij§^ lord Charles
« the 1st, of blessed memory, d^, by his letters

* patent nnder the great seal of England, grant
« and convev unto James, earl of Carlisle, and

< bis heirs ror ever, the propriety of this isUind

< of Nevis ; and his sacred majeat^ that now is

* having by pnrchase invested himself in all

* the rights of the said carl of Carlisle, and in

< all other rigfhta which any other person may

< clahn from that patent, or any other, and
« thereby more immediately hath [having]

* taken this island and the rest of the Carribbee

* islands into his royal protection : and his most

* excellent majesty having, by letters patent

< under the great seal of Mgland, bearing date

* the 19th da^ of June, in the 15th year of hie

* reign, appoinled his excellency Francis, k>rd

< Willoughby of Parbam, captain general and

< chief governor of Barbadoes, and the rest of

< the Carribbee islands, with foil power and

* aothority to irrant, confirm, and assure to the

< inhabitantB or the same, and their h«rs for

* ever, alt lands, tenements, and hereditaments,

* under his majesty's seal appointed for Barba^-

< does, and the rest of the Carribbee islands, as,

* relatinn being thereunto had, may and doth
' more at large appear.

«* * And whereas, by virtue of the said earl
^ of Carlisle's patent, divers governors and

< agents have been sent over hither with ao-

< thority to lay out, set, grant, or convey in

* parcels the land within this island, to such

* persona as they should think fit, which was

* by them, in thenr respective tinnes, as much

< as in tliem lay, accordingly performed. And
« whereas many have loot their grants, war-
« rants, or other evidences for their said lands ;

< and others, by reason of the ignorance of
« those timea, want sufficient and lawful words

* to create iehcritanoes in them and their heirs;

< and otiiers that never recorded thehr grants

* and warrants ; and others that can make no

< proof of aay grante or warrants they ever

< bad for their lands, and yet have been long

* and quiet possessors of the same, and be-

* stowed great charv[es thereon. And we do
« humbly pray your excellency that it might
' be enacted, and be it enacted, by his exwl-

* lency Francis, lord Willoughby of Parbam,

* captain general and chief governor of the

< islanil of Barbadoes, and the rest of tlie Car-
« ribbee islands, and by and with the advice and

* consent of the council and gentlemen of the

< assembly, representatives of this island, and
« by the authority of the same, that an impost

< or custom be. from and after the publication
« hereof, raised upon the native commodities of

* tbia isUnd, afVer the pro|>ortion and in manner

* and form as is hereafter set down and ap-

&7]

Campbell 9. HidL

A. D. 1774.

[95»

Bhtaia, oa Ibe third day of March, 1763, uur-
chised « ccttain plantaiion in the said island
of Grmada, of the French iohahitants, in pur-
fuaoee of the said articles of capikulatioo, and
•f the said treaty of peace, as many other
BhtUh subjects had then, and since have, done.

** Aod tlic jurors aforesaid, a|)on their oaths
Araaaid, farther say, that certain sugars of
ike phiatilTs, and of the growth and produce
•f the said island of Grenada, and made from
4* Ike itiaintifrs said plantation there, sulise-
faeat to the granting and registering of the
UkJ letters patent of the SOth of July, 1764,
■ere exported from thence. And Ithat the
■onici IB the declaration mentioned to he had
mi reoeiferi by the defendant to the plaintifTs
BR, were paid to and received by the said
WiHiam Hall, in the said island of Grenada,
IS afciesaiil, as and fur the duly oFl'our and
a balf per cent, imposed by the said letters
ptratoi' the 30th of July, 1764, he, the said
Williaa liall, being then aud there the col-
keior ol* the said duty, for the use of his ma-
jcrty. And that the said William Hall hath
ist paid the same over tu the use of his ma-
JM^ ; but, on notice ol this action intended to
he mvght, hmh, by and with the consent of
bis tjfsty's atlui ney general, kept the same
■ bia bands, for the purpose of trying the
^nrttisn arising upon the mcts ; and lor which
Ibis action is bniusrht.

** But whether upon the whole matter afore-
■ii, found by the said jurors, in manner afore-
Hid, ibi? said impost or custom of four and
•se hall' per cent, in s|>ecie, fur and upon all
kai commodities of the growth or produce
rf ibe said island of Grenada shipped off for
AssBine, was lawfully imposed or not, the said
jfltia am altogether isnorani, and pray the ad*
lise of the Court in the premisses.

" And if, upon the wliole matter afurcMid,
lend by the said jurors, in manner aforesaid,
it Aafl appear to the Court here that the said
JBpaat or custom of four and a half per cent.
is ipecie of and upon all dead commodities of
tW growth or produce of the said island of
Gienada shipped off from the same, was not
bvfoUy imposed, then the said jurors, upon
Ibeir oaiha say, that the said William UaU dkl
mitttakm and promise, in nunner and form
M ibe said Alexander Campbell, by his said
dsdaraiioo, baib declared agaio*4 bim ; and
ibcy 8»eas the damages of tM said Alexander
•a that occasion, besides bii cntu and charges
Isid omt b^ hiio about bis suit in tKi« behalf,
Is 5/. and tor such c^ts and charges 40j.

** Bat if, uiKMi the » tio!e ma iter found by
ibe Mid jurors, it ai^pe'^r to ihe Court here,
that Uie said impost or coii!orti f^f Vmu and a
kaf per ceol. in specie of zui opoo all dead
of the ;;roiiih or cr^nltic? ol tbe
of Grenada, SMip(*cd off from the
lawfuil% imposed, then the said
tbcir'oaiba, say, that the said
dfal Bol promise and ooderuke
V mdhtm m in bis pica aUcdgad."

m

This came was first argued for the plaintiff
by Mr. Alleyne, upon tlie above special verdict,
in Easter term, 1774, in substance nearly to
the effect following.

Mr. dikyni^^My lords, if the wishes of go-
vemment, ur professional rank, could influenco
the decisions of this tribunal, 1 should now,
considering the cause, and the dignity of those
advocalea who support it against me, adopt
the example of the Roman or^itor, and begin
witli recommending my client to tbe grace and
protection of his judges ; but experience bar-
ing taught me that here the genuine merits of
a cause are the judicial guide, 1 gladly follo«r
the practiee of an English court, where the
laws are heard by their own recommendation ^
and rise in humble confidence, of counsel witb
the nUiotiff, who, through me, aolicils }'Ottr
lordships' justice in hio behalf.

This long expected and truly interesting
cause now comes before the Court upon a spe-
cial verdict, found at the trial of the general
issue before your lordship, on an action of
* indebitatus assumpsit;* nominally, indeed,
brought for the recovery of an inconsiderabi*
sum of money ; but substantially, to take tbo
opinioo of your lordships upon a question of the
first magnitude. The verdict, when relieved
from tbe embarrasament of form, reaolvea it-
self into tbe following case.

The conquest of the island of Grenada, in
the West Indies, was one among the mwny
gk»rious achievemeiita of tbe last war. It wao
surrendered to the troops of bis Britannic fDa*
jesty, under general Moocktoa, on tbe 7tb of
Pebroary, 1769.

Tbe articles under which it eapitnfaled ac-
knowledge the inhabitants from thenceforth as
Brilish subjects ; require them to uke the oath
of altegianoe, as a redprocal doty resulting
from their adoption as sucii ; secure to them
the enjoyment of their religion ; assore ibi-m
of protection, in tbe same manner as the colo-
nies receive it ; with whom, by this surrender,
and tbe cenwquent reception into the privi-
leges of British sulgeds, they are placed upon
an equal foot in the possession of the common
libertT ; and permit them to dispose of their
own lands, provided it be to Britirii subjects.

On the general traaty of peace, signed at
Pteis, Fcbroary the lOtb, 1763, this island was
ceded by bis Christian nMJesty, in full right,
to tbe crown of England, under stipulations
similar to those on which tbe province of Ca-
nada waa ceded ; and in general confirmatory
of the articles of capitoUtion. And in this
irsaty his majesty engages, in tbe roost ample
manner, for the' free exerdse of tbe Koman
Catholic religion ; aud giv«s hi« French sub-
jects liberty to sell their goods and retire.

On tbe 7 th of October foUowinir hi« majestyp
to make gof^d, in the fullest manriir, tiiow; en-
gagements, upon the faith of which iIm isUnd
bad surrendered, and to p«rf«ir« at tbe same
liose tbe oonditioos of tbe treaty of pf a', e, bod
fanhcr^ with » view to tbe better pesplin; and

8

S59]

15 GEORGE IIL The Que of the Island qfGrenadi

caltiffttingf of bis said island, was pleased to
issue his royal proclamation, inviting nis Britiiib
subjects to colonize in his new acqnired domi-
nions, and, as an encouragement, assuring
them and the inhabitants in general already
there, of the benefit of the English laws and
constitution : and, for that purpose, declares to
this efiect; reciting that it will greatl;^ con-
tribute to the speedF settling of his said new
gOTfrnments, tnat his loving subjects should
be informed of his paternal care tor the secu-
rity of those in their liberties and properties
who were or should become inhabitants there-
of ; and farther, for the effectuating of such
intent, ** We have thought fit to publish and
declare by this our proclamation, that we
have, in our letters patent under our great
seal of Great Britain, by which the said go-
vernments are constituted, given express power
and direction to our governors of our said co-
lonies respectively, that so soon as the state
and circumstances of the said colonies will
admit, they shall, with the advice and con-
sent of the members of pur council, summon
and call general assemblies within the said
governments respectively, in such manner
and form as in those colonies and provinces
in America which are under our immediate
government'*

Having thus declared his resolution to exe-
cute the engagement in their favour by this
first step, as early as possible, of calling as-
semblies as in the colonies and provinces in
America, under his particular protection, and
his inclination and desire to manifest his pater-
nal care of his subjects ; he proceeds to shew
the extent and justness of the accomplishment
of his design, by a full and particular declara-
tion of the nature, powers and design of these
assemblies when called, by adding : *< and we
have also given power to the said governors,
with the consent of our said councils and the
representatives of the people so to be sum-
moned as aforesaid, to make, constitute and
appoint laws, statutes and ordinances, for the
public peace, welfare and good government of
our said colonies, and of the people and inha-
bitants tliereof, as near as may be agreeable to
the lawsof Enghmd.** Here tfien they saw the
full idea of their becoming British subjects
(which they became at the surrender) by this
clear and perfect image of the beauty, order,
and freedom of the British constitution, im-
parted to them, and declared to be the model
and foundation of their own. '

But as it might happen that this benefit,
thus pledged and confirmed to them, could not
be immediately communicated in its full ex-
tent ; his majesty provides thos ; ** in the mean
time, and until such assemblies can be called,
all persons inhabiting, or resorting to, our said
colonies, may confide in our royal protection,
for the enjoyment of the benefit of the laws of
our realm of England.*' So that the enjoy-
ment of these laws was to anticipate even the
calling of the assemblies $ which was not to be
a eoanaencemtat jpf Ihur frtedooy nor of their

[9B0

exercise of the ri|^ts of Britisb sokgecta, nor
of their participation in the British comtitu-
tion; but one act, most important and illus-
trious indeed, of that freedom, those rights,
and that constitution already in their poi*
session.

And it is material to conaider what is the firrt
step which the governor is to take upon his ar-
rival in the island, for the purpose before ex-
pressed, of giving the inhabitants the benefit of
the laws of England. It follows iromediatelyy
'* We have given power under our great seal to
our governors of our said colonies respectively,
to erect and constitute, with the advice of our
said councils respectively, courts of judicature,
and public justice within our said colonies, for
the hearing and determining all causes, as well
criminal and civil, according to law and equity |
and as near as may be agreeable to the laws of
EngUnd."

Here then the laws of liberty and of Eng-
land are enthroned in the island as soon as ever
the delegate of the executive powers arrives
there, and he is sent to give them efled
amongst tliose who were already entitled to
them as British subjects, and both in criminal
and civil causes, both in strict law and liberal
equity ; in the whole, and in the great mem-
bers and distinguishing distributions, both in
the objects and the manner of spplying them,
the laws of our constitution, the laws of Eng-
land are to prevail, and, as near as may be con-
sistent witli local circumstances, are to bo en-
joyed as the general privilege of British sub-
jects, there as bere.

Conformably to these repeated acts, and in
prosecution of the same intention, on the S6lh
of March 1764, a second proclaoMtion was in-
sued ; having the same object, the establishment
of the colonies, and declaring the same views
already wisely adopted, and firmly engaged as
to the means of attaining and perpetuating that
establishment ; and reciting the great Mnefit
which will arise to the commerce of the king-
dom, and to his majesty's subjects in general,
from a speedy settlement of the new acquired
islands, of which this of Grenada is named the
first. It gives directions for the survey of thn
lands, the distribution into districts and parisbeiy
analogous to the English divisions, the cultuin
of the various produce of the country, the ap-
portionment of the ground into due lots Ibr thnt
purpose ; and in general recognizes the inhabi-
tants as his majesty's loving subjects, and pro*
vides such means as were judged expedient for
their necessary support and defence, their in-
temal order, plenty and happiness, previous to
the completion of tbese by the ei\)oyment of tho
laws of England, which, as they bad in righ^
they were to have speedily in possession.

In further prosecution of this design OD'IIm
9th of April 1764, his majesty was pleased io
grant his royal letters patent to general Mel-
ville, constituting him captain-general and go-
vernor of the new islands, Grenada, the Orean-
dines, Dominica, St. Vincent, and Tobago.

Thii patent is set forth verbatim in tho rt^

Campbell v. Hall.

» 10 uke KDi] BilmLoiiler (be oaths of allpsi-
uw kod sunivroiicy ; ^reii outliority to tlie
fiWBOT, and rwjuires anJ oomniinds liiiu to
munoti an amemtily, <lMcril>es the manlier of
teliMi by the freehoUers, and Iha9 called

a>rs loiit ur«pre»eniatiT«i; and (0);Hher
lh« |[«*mior and euuntil lo be the l^ia-
hnMoflbecDutilfv, and lo make laws aa Dear
n poMiUe to tlie [■»i of England, nilh the
Mual (iTOviuoa lliat ihey shall be roid if nol
aftawMl by hia Rinjetly within a limited lime;
m4 Iiarc4ty ii Aoatly egUblishnl in Grenada a
I— ililiilioo. JD priocipk and form, in the de-
rifn of the wbule, in tbe dUpoaiuon of the
pana, in Iheir reapeclite runclions and joint
MMMioa*, on exact epilomc of (be Briliah
Mm oT goTemmenl : yrt a conatilxlioa nol
pNn by Iba paleiil, but uiily lu be put in full

Hitb ibese pov/m bis excellency airifed in
Grcsada, and innantly took upon bimaetf the
itoil Jiti alioD nf the ifovernmenl ; and in obe-
fiwM to hu commitaioii called an assetiihty
mt opened the scene of legislatioa in tbe

tin tbe .'0th ofJuly 17U4, poileriorin point
af dale lo thtte prncruaMlioDB and this patent,
luaoHjnly by bis letters pnlenl under tbe g-reat
wal. rrcilin|[ an impnal of four pounds aud a
ball' (II apecie fur every hundred wei){ht of the
o^wxlilies of tbe erowth of ihe iatamt uf Bar-
Ui»n. and of the Leeward Carribliee iilaBda.
ui.l aail payable lo bis majeily and ilia siicces-
' rt ; recitinic tbe cession of (he island uf Gre-
.li, bbJ that it is reasonable and rxpedient
ii llie hke dultea sbould take place there as
Iba oallfT suicar islands, iberefore in lieu nf

A. D. 1774.

[S6S

.loutirtbciaidisland to the French, on guoda

■ ' pmtil and tmpnried. imposes ihe above duty

! t-itfr sikI ■ balf per ceul. and requires the

••niMiT and oSicers nf the customs lo raise,

^ett, a«il receite it to his majesty's use-

riiaa trltert patent were July registered

lail publicly onnonnceil by his excellency the

|*>(n«r in Jan. 1TA5. A rustom-hnuse was

mmitAt officen appointed tu act ns colleclora

rf lh» CMloma, ainou)^! whom the defendant

flaiiiill tliaii li anil II linm iii 1 1 ml ofhisma-
jan*a M^i>cta, imlucnt by ibe royal promises
»|nfB*Ml]F inade, resorted to Grenada and
Wmw pnrdiaaeni of lands therein. Amongat
•e firat vf whom was Alexunder Campbell,
praaeol plaiuiifT; whose plonUtions
, and he wah about to ship off his
hr islaml of Grenada tu the Lon-
nhrn he was inlerrnpled by the
I* paymeni of tbe im-
■laled ; ihe jury lind he jiaid it,
B is (be money on which the
: Ihe verdict concludes ii
d liates to tlie Court i
laor Ibe ca»e tbe impoat be

[Lord ManiJiilJ here reminded Mr. At-
leyne, ihal he bad oinitleil Ihiit part of tbarer-
ilict which linds (hat the money is retained In
tbe bands of (he delendani, by consent of (he
Attorn ey-Geoernl, in order tu try (he right. I
only menlioo this, bei/ause o(her wise you could
nni have had yuur action against a custom
officer in (his form.]

And my professional duty now leads me l»
contend, (hat it was not competent to the crown
on the 90lh of Jul^ 1764. the day on which
the patent fur raising (his imposl is daipd, to
impiiae a periuanenl tax, as this, on the island
of Grenada — of course that the present sum in
question was improperly exacted ; (he money
erroneously paid, or at leut witbuni any legal
obligation to pay it ; and the plelntifT therefore
entitled to yourlordship's judgment.

Aa (bit claim is founded upon a suppositioD
of royal prerogatiTe, which ought (o Itu trealed
with deference and respect, it wilt be perhaps
cunTenient-()iefore 1 make an essay which the
importance of the point renders an anxious one
lo me of discharging that duty) to delioe what
prerogslive is, that 1 may be understood not to
make any exceptions to it in general ; nor to
nrgue B(^inst a high and beneficial privilege
of the crown, and as 1 apprellenil beiieficisl to
the people in wbnl I conMive to be its true and
proper sense. The term is too often received
wilii indignant jealousy by an English iiudi-
ence from mistaken notions of it, which wera
formerly entertained, and which have excited
prejudices surviving, as is common, the par-
ticular causes which gave them rise. To aiiti-
cipele any such misapprehensionf, I beg leave
to offer this definition of prerogative, in which,
I trust, I shall have your lordship's support :
Prerogative is that portion of political jiower,
which (lie conslilution has iotrusieil with the
crown fiir its Diiii and the publiu honour and

There are a few facts in this case which lire
introduc(ory to the direct point in argument,
and those tberel<>re will merit a particular

First, the effect of the proclamalion of Ihe
7th of Oclol>er t7<;3. Tbe substance of it is,
a recitnl of the benefit naturally mulling lo
the Urilish empire from a system of coluniza*
tioD In Grenada ; and in order to invite tbe na-
tural Bubjrcis of that country, on whom na-
turally would be Ibe first depeodanci', and by
whom there was tbe fairest prospect of answer.
ing Ibis desirable end ; — lo invite them to
settle there, il repeatedly assures them thai a
CDOBtiliition aa aoon as possible shall be fonurd
in exact cuoformily and rcproentalioo of the
Kiiglish government; whereby all powers of
slaie Should be duly distributed, and Iwlged in
hands comjwtent lo execute it lo tbe frmloiii
of the subject and the security of the infant

* Pneragaliva eat jua regia bonum el

quum, in decus ct tutamen rrKoi, t

bonas el aniiquaa populi liberlatcs, el
glicaui lp};es«t cunsuctudinea.

fiSSJ

15 GEORGE in. The Cate ^ihe ItUmd of Grenada^ [S64

eolnny, by a full partici|mtiOD of O0r wise tnd
adaiirable comtatutian. Then follows the pro-
claroatioD of the S6th of March J 764, pottingf
the eouDtry in order, and pre|wrin^ the face of
it t(» rejoice as it were in the laws it was to re-
ceive : tbeo follows the patent to got emor MeU
tille, with an imnediate execution of these en-
f^gemenis^ in part, by directinjf him to con*
stitute courts of judicature, for the administra-
tion of the whole internal policy of the country,
as near as possible to the laws of fingiand ;
and to call assemblies as soon after as was pos-
sible, in the very effigies of the English oonsti-
ttttion, vith the same powers, and to the same
«nds of public freedom, order and happiness,
and of uiaiittaining a similitude between the
parent state and the colony.

Hovr wise, how politic the measure ! for the
•rown st tliat time conqueror of Grenade, the
eld inhabitants subjected to the laws of con-
quest, it niijrht naturally be presumed that
British subjects would be jealous of such a
power, and disinclined to settle where, under
the circumstances, not only a change of place,
hut a change of political relation might ensue.
To remove these suspicions, if any yet re-
aaained — for his majesty, both by the terms
voder which his general had received the sur-
render, and by the stipulations of the treaty of
peace, had given assurances of better things to
the old inhriMtants themselves, with whom he
liad been at war ; and had wisely, and as be-
came the honour of a king of Great Britain,
disclaimed to govern in the spirit of conquest
when he haii sheathed the swonl. — But to gure
the ftillest satisfaction to the inhabitanU in ge-
neral, and to those particularly of his own sub-
jects who should be inclined to settle, the pro-
clamation declares that all the inhabitants there,
er who should in future resort thither, should
have the fnll enjoyment of the laws of Eng-
land. This construction arises from the true
meaning of the words, if any words of our
language admit a definite senne ; it appears
fiwwarded and enforced t^' the subsequent acts
just now slated. And the necessary effect of this
great and solemn inttnnnent is a waiver of the
rights of conquest, whatever they were betbre.
"ay the proclamation of 1703, in the most ex-
plicit terms a recognition is made, of the prac-
Hcability of governing tbis island of Grenada
by the laws of England, and a receiving of this
■ometinnc oonqnest as sn English colony ; and,
until I hear the contrary, a short argument
shall evince it.

A constitution is promised ; but that might
be a work of time to complete and execute in
actual operation. In the mean lime however,
oeiiris of jiidieatore are erected; they shall
administer justice, and the measure of tbis ju-
dicial romtuct shall be the laws of England.
Can this be compatible with any principle of
conquest ? Can the benefit of the laws of Eng-
land be esjoyed, without laying aside the go-
vernment of a conqueror! Certainly not. The
strong hand of power enforece the lawft of
arms ; the peaceliil voice of Uw; secures tha
enjoyment of the rightt of British lubjecti.

The same observations will bliew that the
crown held it neither impracticable nor dan-
gerous to introduce the laws of England* and
ettaUish freedom in this conquered country.

From the whole 1 argue, that the inhabitaste
of Grenada were considered aa a colony an-
nexed to the crown vOf England, and not to be
governed by the laws of conquest ; but on a
plan similar to that which issues firom the cobb-
mon centre, and pervades the whole lyatem of
oor American settlements.

If this be granted, and I see not how it eaii
be questional, consistently with facts, I then
conclude by direct and necessary inferenees
from premisses which I think clear and mieaiH
trovertible, that every constitutional right of
the British subject neeeesarily belong to
them; they were entitled to call upon the
crown to secure those rights, and were compe-
tent by every legal means to defend tboaa
rights.

Of course the crown could assome no legia*
lative power over them ; could impose no pef^
manent tax ; for taxation at least requires wtt
act of legislation. These observational wbiek
would allresnlt, and I should think irreaistiUy,
from the single proclamation of the 7th of Oio-
tober 1763, receive additional force from tha
second proclamation, and from the patent ta
Mr. Melville, which shew the same opinkm ift
the royal mind, the same purpose, the saoM
idea, and repeat the same assurancea to tha
subject ; and, if it were possible to make thcoi
clearer or more certain, they would have that
effect: however, at least they cannot weafcea
wfcMit was dear and certain betbre ; they woald
strengthen it, if it bad need of strength.

From them we get to the exact point of the
argument, *' Whether the crown, on the 20tk
of July 1764, possessed a legislative authority
over the island of Grenada ?"

The technical learning of Westminster- haN
can give but little assistance in the investiga-
tion of this question. The great principles of
the law of empire must determine it ; to which
the political history of EngUbd atfords particu-
lar illustrations.

This course I shall pursue, and, as I prqpecd,
shall glean up the learning to be found m tha
books; from which progress, I trust, 1 shall
safely draw that conclusion, which fomss the
ground whereon my client now stands hoping^
success, and I trust, not hoping it in vain;
since 1 hope to prove he has on his behalf the
most powerful advocate, and most preeailun^
in this court, justice and right.

The principles of the law of empire are
fbunded in the social nature of man. — As na»*
tural law is derived 4rom natural coiinectioDS |
so political law is derived from social eonaee^
tions. That considers him as a creature as ha
came from bis mother^s hand ; this as a mem-
ber of society paying obedience to the laws af
his community, and reciprocally deriving pm-
tectinn fVon them.

Fron hence arises one inoontestable princi*

Kle— -so long as he pays due obedience le tha
tWy so long he if entiued to ita eecurity ; prd^

_>CampbeUv. liaU.

BMiS pltce where ilie*)i«rci«e

■elicaliie ; iriieiuil lilo imliim

~ ■ liireign Btnle, tlie iniiulcipal

^^_ -ii cuUDiiy being uot tb« mea-

mMip^^^ cnuiluct lliere, |>rulecliuii Tiir

0e M tiit|icnii«il, ji tnlermila uiilil liii

If l»« nrtatt to a coitnlry newly acqiiireil b;
mt, Lkanqtt by biiuwn slale i thvru. il' the
MWMitj lit lUtaUie rvfjuirra tbaltucli cntio-
Vj ba irotmird by more ri)[ar<ii>i mcnni, be
■ol luimit tu tbKTii ; bul it' be reiort to a
MMly lUKMiereil cnuDlry or coluay ; aixl setlle
lUra im^ar Uw luapice* of the mollivr stair,
ibwathsUwi oriiis original country still affbrri
ibtK firolcdian, di far n* amy be agreeable to
ihiMalcirciinMlincesuf iliui country to wbicb
h* hw wtireil ; anil Mill are the measure nl'
bs civil oobiluct: ibe >!xecutive mtKistrate
Aill ffaiii* B cvnslilution I'nr bim to secure bis
Unb-riglii. wilberery atii»enilBgeol' hisBacienl

A. D. m*.

[SCO

TM* ntcwBrily Itillows from ibe priociple 1
fifM rr«ir°**^!~""' il is lordly neceasary 10
MMM lo ma aulhorily where reasun ia so clear ;
jet, I am b«i>py to refer to Ibe illuilrious
■BBS of Vailell, and fond of lhi» occasion of
iBHrtiaiMOK It nilh dewrved Teneration, arid [
itft u i* c««uud, tf I ioilutge Lbe plessure of
•muag biiD, with Bome rsnity periiapt, ivben
I liBJmy nalHin* i^fraccil by his autburily. la
i I0b«««. B. 1. Yoiir lordship will find bim
' ,tnmmt[ biniself in thfie tvnrds, >■ When a
:i^ii lakn pntsrsKiun of a distant country
1 1 U4lk* a cnliuiy there, tbat eciuntry.
' "ititb acparaled Iroin (lie principal eatablisb-
--(it or mnlU'r coiiulry, nBtiirally beoiiues
fiaX of the sinic, equally with ita ancient
J —I isiiim Wliriieter llit>relare tbe polili-
id Uw«, or trentirii, make no diitiDClioD
U*««» them, rirtry ibiiif; snld of the ter-
avry uf a oatiun uiigbl bIbo to extend to its

U ihmfcre the political laws areco-exlen<
■sa«)ibibB leriilor^nflbe slate, buwever dii'
iriaad m Sf«cv, aa this excellent anihor decides
tiy an. Hies every MmslilntianBl right of the
N^satt of llial «(au> is cu-eMenBive with il«
tvfiliiry ; the funilainenljil .laws of the stale
weCfMlly SB, and personal liberty and private
ym*HJ alike uni*en>Klly protected.

TUa n«r««Brily r<.ll<iv*g IVom his general
pailiasi ; liM, tliaui^b I illnstme my ar^n-
■iHlky tb» ifuutaiiun. 1 da not vhelier myself
miu aay IkireiKn auttiurity t oor merely iiDiler
■■baviiy <•( whaleier growth : I anpeal to tbe
bubs of rvBsun. llmt a cbaD|;e nl pince can
■star merrly as such nuerate a foriciture of
wipmt Metal riiibiB. Truv, a* I bate befnre
mi, H may timn iitnri ■.i.iienrl ilir- enjuymeni

Let iisnaw, la close tbis part of the argu-
ment, hear lbe leifal suihoriliet nf our own
country. We shall And tbe ([eneral learDinf
of tVeiiiniiiBter<hall miocide nitli tbie tlirory.

In Blankard and Guldy. aSalk.4i1, lonl
Holt, chief justice (says llie reporter,] and lbe
nhule court wilb him, held lliiis :

1st, It) case of an uniuhubited coDatry
newly found out by Enelish sulijecls ; all laws
in force in England ore in force there.

8d, JnmBica being cnni tiered, and not

fdeuded to be parcel of tbe kingdom of Eog.
and i the laws of Englaud did mil take place
there, until declared so by lbe «ouquerar oc bit

Tbe lirst |ioint ekpreialy maintaius lite prepo-
sition of Vattelt, and his inijegty has |iui Gre-
nada in express lerma uimn the same fiioting;
with " tbe other colooieaj" therefore all the
laws of EngliLnd (ao tar as is aiireeBble lo that
island) are in force t lie re.

But further ai a cooquer«d counirv, the
conqueror has declared that lbe iuhanilaola
of Grenada sh.ll enjoy the laws and cimstitlt-
lion of Euglanil, which biiiiga il within the

Aereeuble In tbis is h hat is rrporied by Ifi*
RiBBierDrihemtlsina P. W. TS, ofadetermU
nation before llic Ling in council, upon ao ap-
ueal frota the forci);ii plaotatiana, that iftber*
he a new and uninhabited country fnuiid out bj
Enjflish Bubjeels, as lbe law is lbe blrili-righl
of every aubject, so wherever ihey i;o they
carry their law* tvitli Ihem ; and Iherefore
such new furtned country is lu be goverocil by
the laws nf England, then in being wlieo thej
first sen led.

As tn lbe second point, it goes Id be sure on
too large a gruuml, in supposing cnnqiiesi giiea
a prufietly to the conqueror iu lbe people coO'

This principle is liken up by .Mr. Justice
BlacksloueinhisCominrnliU'ies.wbuallnwsthe
doctrine, and lbe exceptions lo it which ha
niabes in i^oeral are such as result from the
inconTeiiieneei which wuuM tall on the cutoay,
from a general adopliuu of the laws of the

Every day's experience before tbe council
warrants this principle : tbe laws of descent
•nd nf all real properly are current in Ireland,
and iu every plantation ; in every part of the
empire. By what law ? By none posilive
there ; but as a oecessBry miiseqneaDe of ihe
Guaniry heiiiir a pan of the Briliiib empire.

If ihis Ik ho, what was the sittiBtinii of Mr.
Campliell and his countrymen nt and prior lo
the 30lh of Joly 17(1*? Tbej were Bntiih
nib|eetB; they wore aeit led in n new acqnisi-
lion : the laws of En|j;1and were practicable
amoi)G:al ihf^m ; no peculiar circiiinstances of
policy required tbe suBpension of ibeui. His
inajeaiy, ilie sHprtme eteoutive ma^'lsirste of
Ihe slale, nompeUnl li decide nn the propriety
of inlrodiicini; the Ibwi of En{{1and inio Gre-
nada, ba^deolared Such propriety ; has intro^
duccd thetii. Then, by ueccMory c«aiMiu«Dce,

S67]

15 GEORGE ill. The Case of the Island of Grenada^ [268

tbey were entitled to them ; they wanted no
other act to ffi?e it to them ; and Mr. Alelville
was only to hasten in the performance of this
duty, tu pat their constitution in act, and se-
cure their rig^hts.

■ By what mode of reasoniniB^ then am I to
learn that his majesty had at this time a legis-
lative authority o?er the island of Grenada?
To make temporary regfulations on a sudden
UDtil all was finished, was the extent of his
prerogative ; to impose a permanent tax was,
as I submit, illegal.

This argument, foonded on the evidence of
facts, anticipates, 1 tliiok, every objection that
the patent to Mr. Melville was executory. It
is agaiost the words, against the spirit, agaiost
the great end of the proclamations to suppose
it was. The Court will not give such a nar-
row and forced construction to a public grant,*
founded on the most liberal and wisest princi-
ples of policy, and upon which numbers of
British subjects have fixed their settlement, in
confidence of all the rights of freedom in a
country so remote; a construction ill adapted
to its terms, to its plain scope, and to the ma-
nifest reason of the thing, if it had been a fprant
not to a nation at large, not to British subjects,
to Englishmen, invit^ to settle for the eocrease
of commerce, but to a single private individual
under any circumstances. Will the Court in-
tend that it was the design of the crown that
British subjects. Englishmen, should be called
to cross the Atlantic by tlie royal voice itself
under such assurances, and when they arrive
find their hopes dependant on a future discre-
tionary possiMe grant ? It is sufiicient for me
to say, by the patent, and by the proclamation
of the Sdlh of October, nay, bv the verj^ terras
of surrender and the general treaty of peace,
the inhabitants are recognized as British sub-
jects: the laws of England are recognized as
practicable and beneficial to the island, those
who were there and those who should allerwards
resort there are promised the enjoyment of
them. From that admission, this mutual con-
tract, and these acts of the crown, 1 draw my
argument, and thence derive the rights of the
colony to the full benefit of the English laws
and constitution.

And now, my lords, from the consideration
of the case in the general view of political
theory, and from such authority as eminent
writers and the decisions of our courts of law
fornish more directly to the point, I proceed to
the review of the history of this country ; and
I trust, that the account I shall give your lord-
ship of our several acquisitions by conquest or
colonization (in which latter conquest with us,
as with antient Rome, hath always terminatetl)
will abundantly prove the antiquity and uni-
formity of my general argument.

* It seems that in public grants, the rule of
the civil law holds, which says—** Beneficium
impcratoris quiLm plenissiro^ interpreuri debe-
mpa," thoogn our law adopts the OQiitrary in
private grautt.

I have spared no pains to infomi myself of
the history of these transactions ; and, after a
tliligent research through the writings of Dr.
Leiand in his history of Ireland ; of sir Joha
Davies in his discoveries, and the case of Ta-
nistr^ in bis reports; of Dr. Harris in his Hi-
bemia ; and of Mr. Molyneux in bis contest
with Mr. Carey ; and lastly of the noble his-
torian of the age of H. 3 ; I trust I am war-
ranted in the principal facts and conclosioM I
have to offer concerning the history of the ac-
quisition of Ireland.

1 shall not refer to the books by pages, ex-
cept that in sir John Davies's reports, I would
wish particularly to submit to your lordship's
notice the d7th page B.

Ireland, when Henry 3 first ascended the
throne of this kingdom, (1154) was divided into
many small states, and was subject to all thoae
evils and convulsions which distract aavage,
unpolicied, and divided, countries.

bermot king of Leinster, being driven from
the throne by his rebellious subjects, solicited
the assistance of H. S, who, covering his am-
bition under the supposed sanction of the papal
autlioritv,* and taking the conquest of Ireland
to be a desirable object, readily permitted cer-
tain of his subjects, with earl Strongbow at
their head, to land in Ireland, and to engage in
the enterfirize on behalf of Dermot

Tbe stipulations were— in case of victofy
Dermot was to be restored ; and in return a
grant of lands was to be made to the English
subjects.

The event was prosperous ; the terms on th*
part of Dermot were fulfilled.

King Henry went over, and extending tbo
conquest became possessed of a great part of
the south-east of Ireland.

The natives whom he subdued he ruled
with the rod of empire, communicating, as ho
thought fit, certain privileges, and withholding
others ; and making, as he judged necsessarj,
certain regulations : but those of his siitgects
whom he found settled there, he recognized as
such ; of tliese he demands tbe perTormance of
the feodal services ; nnd, as a necessary conse-
quence uf their being subject to the obligations
of those laws of England which were in fores
at their becoming a colony, the laws of Eng-
land diflused their protectiou over the colonists ;
and he proceeds to sixiire the benefits of those
laws by perfecting their constitution, and form*
ing their government with every appendage of
English |)olicy. We see biro dividing tho
country into counties, establishing sheriff^
erectinsf courts of judicature, corporations and
general assemblies.

This account surely furnishes an antieoi

* From Pope Adrian the 4th, whose nanno
before his accession to the see was Nicholas
Breakspear, and he himself was an Eiigiiab-
roan. The' letter authorizing II. 2 to conqocr
Ireland, and bring it to the obedience of Ht.
Peter, is a very curious one ; it is dated 1 154t
and may be seen in lovd Lyttelton's history.

CampbfU V. Hall.
iaBUnce tu my general atgu-

itlawKOTEDglotiil arc romninnicateil M
_^_ •iftllie oomiuerrtl iiMiveii liut result
■ ike Engluh ColimialA on ■ iiecHSmry couse-

rM;" lUii poipl i( RiDst eliburntely lUicnsseil
l>r. UI>D<(, >lML<l«t by -iir J'lho Du*iei in
ir ; and •doptcil in Ihe manner I alale it
i Hale, Willi remarks tbat the cnlonits uf
naiM, iilatiled iu cunquered Rauoirie»,
1 the Itomao law ; anil Inkei it a» ul'
r, not a««i^^■nt( any reasiin tur it or ex-
'' ; llie reason ite'mg initee^l

i of the Ihintf. But lie
Ipia large explanilluni how cDii<|iiernl cuun-
irin ■■■; have Ui«ir la»a clian^eil.

1 uniu tlie s'eat aiilliority ot Iniil Hale ilnes

Mt ■rem Id agree willi me on llie wlinle in lhi«

Mcvtinl III' the eslalilishment of the English

la* iH IrtUnit, in the book jntt qiioieii ; anil I

am aware too lliat this nccaunl i:< materinlly

MercDi rmm wtial lunl Cake lays iluwn in his

111 luliiiiie* 141, b. and in Caltin'a case 7

Ota. at if lliey were PaUbliBhed by kini,' Jubn,

lui hia aoD ilenry ;), and, I'urlher, Here lint

<hr eBra nf rolonivalion.

Tha*irikini;tliderpnreeiig«i;ei] metolrare

.' •object minniely ; anil la ihe learned

■ -I'fra whom I have l'>llowe<l, hnd accet* in

-. ircbi*es of the city o( Dublin, and kpent

I irh lime in oery means of inlomijIiaD, 1

^r la r«llnw ihein, aa luy leaders, in a pulnt

'!i:tHKy which they had made itiesuhji'ci of

-II particular atlcniiou, rather than tlie ^reat

Tiie ttibaeqiteiit liiilory is as fulliiws— and
-I, b^ t.UliDg^,Bbew bow lord Coke fell into
>■ moulie ; tbr tuch with delercnce I must
ari ii ; aud such the taclB, I think, prnte it lo

1>« ban om. 9, bcin;; ton much negtecled
i^ ibe intercourse lieiween the English eo-
ktj attil tUe native Irish, iho Utter obKlinately
b^ frf thai lend ciHlom, ns it is valle<J,
fcBichoci law. nr which there is much aaiil
e (4^ Taniatry already cited : and this
rtititit icround in the Engtish eelabliili.
'" "" ' .1 necessary in tUff reign of
a prDcl-tmatiDn, cnmmandioK
: of Ihe laws ol' England to
ibjrcta ; and king John hiuiself
r t« Ireland to infnrce obedieni-e lu
And king H. Ihe 3d, hix tnn, speaking
•f ka* faib«- aa havini; '■ ordiiiied and coin-
is lord Coke Uket it, hot I think
iMeally with history ■' settled and
d Iba ofaaervance*' of ihe laws of Eiig-
Imd, (thick bad been already eslablished. The
laur dl>4 by loni Coke,* front whence in^
ihi m )|aMal, sayi king John reduced them
^twnung.snd at tbe Jnatanceof the Irish.
Idrtni natural to aduiil this, wilhont iiiji-
-vM *Mber that kinij John was the original
^Ddnof titovr laws in Ireland, or that ihey
•«« MB Ant ibcrx in GuniiefiuFnce of coloniza'
' K. Tbatv waa *rry little stalulc law at thai
k; ami ilmiglit be thaujfhl aiUisable by

A. D. im. Cfipfl

the ■dminislralioo here nt that time M divert
ommon law of England into writing, the
heller to atuid confonuding it with the Brehun
law ; and probably at ihe request not only of
the English coloniats, but uf the wiser and
f moderale part of ihe Irish who had per-
nl its excellence. But however fond kiag
John or his son roiglil lie, lo suppose, that king
John himself was the founder of these laws,
(though I think it dues not appear that either
have asserted so innob] ihere is no grounj
from facts lo deny this honour lo king Henry
llie seconri ; but, I think, abundant to the con-
trary ; and at Ihe same lime I think there is ihe
atroDgest evidence from facts and reason, not
without support from the express declaraiiun of
great autboritie*, lo prove that Ihey were ori-
ginally introduced not by conquesl, but aa
ighiB attendant on British subjects settlings
here as a colooy.

What it staled to have hMo dune by king
John, atiil is taken by lord Coke as llie iwluU
geni act of that king, commuDicaling the
of England to Ihe Irish, I take il was no
! than a proclamation enforcing obedience
lo the laws already established ; a prerogative
'"-e crnwn may exercise this day at London.

Indeed the seltlement which he restored wa<
fnrllier improved under king John's reign, auit

ilarged in point of territory.

The same policy prevailed in the subsequent
reigns, and weflodking Edwsrd the tirsl sum-
moning members 10 the British parliament in
the third year of bin reign, for the purpoae of
taxing the colony. We tSnd wrila returnable
into this court, the Aula Regis, and in every
instance limilar protection and latvs to lh«
English and Irish Bubjecls.

No instance more similar lo the present case
of Grenada can be cnoceived : and, surely, the
IMlitius of a crown infinitely more ardent to ex-
ttiiid its prerogative Ihnn the presenl liiues will
alluw,shall not surpass, in alfording proteclion
to Ihe subjects, the laws of this day.

The next instance we Rnd iu our political
history is that of Wales: from it I shall derive
strong argument in support of my general pro-
|ioailion : and in this 1 am yet farther satisQed
that 1 proceed upon solid ground, as 1 fiud Ihe
result of my enquiries to iiuadrale with Ihe
opinion of the Court, delitered in the case of
Ihe king aud Cowle.

King Edward Ibe first laid claim to Wales,
as bis leodal principality. The priuce refusing
tu acknnwlodge bim, he treated him aa hia ^
rebellions vassal, reduccil the country by arms,
caused the prince lo be punished as a irsilor,
and took upon himself the immediate soie-

He subjects them by arms; but, whaterer
was the real right, bavin v subdued them, ha
recognizes Ihein as his iu1>je«Ii (he could not,
indeed, do olherwiie upon ibe principle which
he professed, of reclaiming Wales as a feoila-
lory Slate, and declaring it, as he dm-i in the
13lh yfar of his reign, lo have been bel'ura
subject to hint of feudal right); ' -

S71]

15 GF,ORG£ III. The Case qfthe Island of Grenada^ [278

eatm to tbeni the Uvrs of Eogland, and takes
every measure to secure to them the benefit of
the enjoyment of those laws.

The hintnry iiself of those times (many va-
luable collections of which are to he found in
Kymer's Fesdera) proves his conduct towards
Wales not to have been as iu ri^ht of a ecu •
queror indulj^eotly benefiting his subjects, but
as the act of the feodat sovereign, and at the
same time supreme executive magistrate of
Ibis country, securing to his subjects tliat pro-
tection which was their due, in return for their
feodal homage and services, and securing it
by a communication of the laws and consti-
Uition of England, Gonsi<iering Wales as
ipndcr the general comprehension of the Bri-
tish empire.

Pursuing his magnanimous design, of
uniting all the adjacent countries to the realm
of England, he next turned bis thoughts to
Scotland : and the history of the town of Ber-
vick, 80 fully developed by your lordship in
the case already cited, warrants the like obser-
^▼ation as on Wales. He claimed Scotland ex-
'presaly as sovereign lord of the iief, and go-
verned it as a part of the great general fief,
the British empire.

The reign of Edward the third next fur-
aishes matter of a similar nature ; and the
ever memorable treaty of Bretigny gave that
prince an opportunity of extending his empire
upon principles whidi hail animated and di^
rected his fore -runners.

1 have not been less assiduous in examining
the springs of his government over these coiu-
tries which were thus ceded to him.

I have pursued this enquiry chiefly thrnngfb
Rymcr's Foedera, in which are preserveil all the
stale papers from the treaty of Bretigny, re-
specting the conduct of king Edward towards
his dominions scquired from the crown of
France; and from them it appears most
strikingly how uniform he was in following
those principles of government, which had
been pursued by his predecessors Henry the
SCeoDil and Edward the first.

Permit me, however, in ibis place, to men-
tion the sources from vhende 1 extract the
t»i«iory f am about to give. Besides Hymer,
O^E^res Jouruals ; Notitia Pariiamentarii, Co.
4 lust- title Calais, ilie year book, 20 U. 6, 1
R. 3, and Rot Pari. 50 'E. S.

Asa preliminary observation, I would beg
of your lordship to remember, that by much
t|ie greater part of the couoUry, thus ceded to
l^iog Edwsnl, was dsimal By hiss under a very
4«ff^reBt title from that of an appendage to the
crown of England.

So much as he claimed as in foreign right,
this be erected in|o a principality, and ooaferred
it upon his illuslrious son Edward the black
prince, by the title of prince of Aquitaine. I'o
this, which was much the graater part, he
communicated a isonatitution totally diffisrent in
forvi end pdneiple from tbe English gnvem*
menl, allowing unboundsd powers af sovereign*
tjr t9 bis ipiii ami wck m.Uisl English nadon

could not have borne : but as these countries
were c'aimed by the king, as duke of Noi^
mandy, heir to tne house of Anjou, and lo the
crown of France, through his mother,* this
nation did not concern itself what powers he
assumed, with regard to the countries wbieh
he did nut hold or claim to hold as part of tlie
realm of England ; as the feodal sovereign of
those he acted agreeably to their laws, and to
the flowers wliicli they allowed their prince ;
the subjects of this country had uo right to
interfere.

But wiih regard to Calais the case was dif-
ferent: Calais he had conquered as king of
England ; and, having turned the former in*
habitants out of their possession, be invites his
own subjects of England to colonize therein.

Herein we find every principle of lair
adopted ; the inhabitants participating in every
security the English constitution afibrds : writs
of error returnable into this court ; members
representing the people of Calais in the Eng-
lish parliament.

How striking is this distinciion ! Over coun-
tries obtained by conquest, and claimed by a
diflferent title from that of king of England, he
exercises an authority according lo the title he
claimed, very different from the authority of a
king of England : over the countries acquired to
the crown of England, and inhabited by English
subjects, be claims to himself no utbt-r power
than the lawful prerogative of a king of Eng-
land.

This lively distinction, first adopted by H«
9, and continued by H. 3, at this time prevails
between any American plantation and the elec-
torate of Hanover. T» the furiner all preroga-
tive writs will run, as to the counties palatine
of Chester and Durham ; over the latter what
power has your lordship, the great seal, or the
|)arliament?

The history of this country, then, as to the
political government of the lands ceded by the
treaty of Bretigny, joined with the last obser-
vation res|iecting Hanover, furnishes additional
iiroof to those of Ireland, Wales, and Scot-
land, already mentioned, and encrejises the
weight of evidence from the experience of the
nation corroborating this argument in a series
of ages.

Hitherto, my lord, I have endeavoured to pe-
netrate pretty far ^o the ancient history of
En(rland,to wbksh ffi nature of the question di-
rected me, as it depends on the law of empire,
evidenced by historical facts ; and as uo evi-
deucc of this occurred to me so pro|ier and
unexceptionable on this oocabion as the history
of our nation, in which I purjiose to advance a
step farther yet : tind here a modern edifice
presents itKcIf to view, murh worthy of obser-
vatk>o, not only for the beauty and order of its

* Who was sister to Charies le Beau, and
upon Edward's construction of the Salique law,
as excluding females, hut not the descendants eT
femsles, be wss entitled by descent thr
his SMlher Isabel to the crown of Franoe.

Campita «. ;/»».

A. D. 1774.

[27*

>, mi the RtiRlDE; of it
nujoflic fsbrie ol' our own aoclei
hot iMrticulacI; ujiod

■ Oirae (o the
It constitution,
nnn ; becaune
FsrifctK an «xiininntion of it trill
(Mirilmte moch, iri am not Jeceived, to a clear
AMranienl of (liemmli'irilie preaent Cbqbc:
OcgbiMt (o which I atn alluding is the Ame-

re totally

Utrent from nliat i? meant by llie same
wida wlim apiilird lo Bnnlanil, the JurainioD
rflhe Kn»a. The Americans have been cou-
"ifcrnil *» a penple of a itiffeTent |>olilica1 !i[ie-
dn rmcn fW Eu^li«h ; an<l have been calteil
malsrea of tlie hing. Their rights have been
Mid (■ baTc been derifeit from their cliuripi-s ;
•od H ia pruluble the misapprehension of this
(•nicitlar has produced this*ery cause. Since
it IS the tnt in which the principles of colony
Iwr bate been integtigTiieil, it is my duty to
NMe Iboae priDoiplea tery minutely, ami en-
tatwM lo rescue them from ni'

Tu 4o ihia I n

t beg leate tu draw your
0 one great leading con-
»)•) principle. The crnno by ita prc-
'^;«m may execute any plan whereby the
b»» wf tbe country mny be prumulgated ,or
—c . luicated or tecured to the

t only may, bnt it is a
InMh of Ihe cxecntlre trust.

pMnded on this principle, Ihe right of i*-
•SH^; pfiidamstiuns, of incur poratine bodies
•■"Oic, fflr the purposes of municipal jiiriidlC'
' J, neciinit tribunals, and constiiulhig-coun-

1 palatine, may strike your laidshijia ; and
•-uinlj, UD ihli principle, Ihe Ainerican con-
MaUuiM hate been tetlled.

There ia not a single clause in any charter
HkA oan itnpugn ihia idea ; bui etery part of
Ihn bold* out Ihe most conclusive etideiice of
Mr hmofc legvl acis of (irero^atite, for ihe
WKfrnm Dt wcnrin^ conaiiiuiiiinst ri);hls lo our
tahwmfajeeuintlistanlpartsor the empire.

n* diarten do not define richla, nor esia-
Uhk tarn, nor gite any other direcliona than
— ilj for the formal estalliahment of an in-
knm\ l«|[i«lature and tfuveroment.

Why, ibcD. shall il he argiiol that Ihe rights
•T liie ndooiea are emanatiuns of Ihe royal
hwnly? Nol a aiogle constitutiMinl riKhlia
piDMd by charier; andyeleTfryconslitutionat
dfbl ■■ B4(ftiii«d to be the birth-right of the
AOMvieaiM. Tbe idea of the contrary is ion
fcitolaaa to be arracd in this place ; and jwr-
kapa lay c«nteQ<iiiig against it was therefore

bi gcnrral I coocluile, and propose it ai a
pW coDMiHtttDDal truth, that (he American
Aartera aail paleitti are accommodated to pro-
■SM Ibe aMmuT rjghia of tbe colnnisls, and
sat u cwnrey ll)u>e rights, as dependent on
" " ♦», and drn*ati*« from them.
rMoica in America, il i« wHI honnn,
r a Ihivafold description ; firal, pi'o-
-^ — f n i:*i:aiis>lTaiiii> aad Mary

lani); aeconil, charter goternments, oi the
Massachosers hay ; third, provincial ealabliiih-
menls, as Carolina and most olUera. In ori-
ginnl principle the government is in nil the
same, though somewhat different in exlemal

The first sort nay bs assimilated to coun-
ties jialaiiue, the second lo muoicipal corpora-
tions, the ihird sort are a speclrs by theintclves,
as 10 their external conalitnlion ; nil, however,
flnw from Ihe principle I stateil ; all u:nd to
secure lo the Biihjecl the eDJoymenl of the
laws of Ensland ; all, in the very nattire of
their estahlishinents, shew that the rights of
the culonim (;re inherent and innate, uot deii-
fative, or communicated bv charter.

But here I expect I shall be told that the
clearest a rif omen t uosaiblc will rebut me. The
objection, if it shall be made, has ilie sound of
something material, and therefore, rather than
to be thought either to have overlooked it, or
to hare leaml ii more than I can persuade my-
self I ought, I will now oficr to meet it.

It is certain thotin the early charters grant-
ed to America tbe king re«erTes to himself nn
appeal to him in council, in the Inst resort;
and frnra hence the ultimate judicature haa
been usually understood to be in the king per-
sonally, anil not as in right of the crown of
England, nor through bia courts, as to Brilith
subjects. From tins circumstance, I suppose,
it will he contended that the king is sovereign
uf America, not as king of England, but per-
sonally ; and ihe colonies are nut governeit hy
taws like Ireland, Wales, and Berwick, derived
to the inhabilanls In consequencs of their being
subjects of Ihe British empire; hut are like
to Jersey and Guerosey, which belong to ihe
king, and not to the crown. Uence the ar-
gument would be, that all the colonies of Ame-
rica are dependent on the king, not as bead of
the general coustUiition, but la ■ very diAerent
relation, and my general principle would ba
EDO eh a fleeted.

To obviate all Ibis, I need only desire it la
be remembered tbnt such a circumstance can-
not alter cnnstitulional law, or the priodplfa of
the law of empire ; not even if it stood clear
and unimpeaoliMl by that which I coni^eiTs
will most completely reprobate it, the extreme
art with which it was introduced into Ibe
charters, aud the pretajliog [Htlicy uf Ihe limea
when it waafiral conceived; I mean ibepolicy
ofkiog James the first.

The first charter was granted In tbe Vir-
ginian advenlurera, in which this reservation
does unt appear. In nil ihe other chartvrs it
certainly does; andihisis»wing, I apprehend,
to ibe extreme anxiety of Jainea, wliose fa-
vourite idea it was, from tlie Brat moment in
whieb he ascended the Ihmne, lo consider every
part of tlie British empire, not immediately
within Ihe Bctual limits nf England in respect
of local rituation, ao holden of biinielf. and nut
a* coiuponeot meinliers of otie great enipire, at
Ihe head of which he stood as Novereigo, in
light of tbe crown uf England, therein directly

B75J

15 GEORGE III. The Coie of the Island of Grenada— [S76

invertinijf the priociples and practice of H. 8',
E<l. 1, £tl. 3, and other princes, bis prede-
cesKors.

To prove this there we many remarkahle
passag^es in the history of those tinies. The
iirst is mentioned by lord Vaughan, as being
communicated to him by the f^at Mr. Selden.

Kinf( James asked Mr. Selden, whether Ire-
land {mi that time, as your lordships know, the
subject of much political speculatbn) might not
be considered as belonging to him personally,
as the heir of the conqueror thereof; that the
lauds therein might be taken to be his own,
and the Irish themselves as subjugated to the
laws of conquest, and of course not entitled to
the rights of Englishmen, nor to be considered
as mennbers of the same community, but de>
pendent on his will, and beliolden to his in-
dulgence?

filr. Selden's opinioD will be mentioned by-
and-by: it is not reported in Vaughan, but
that learned judge himself there decides
against the king ; ** That it cannot be reasona-
ble to make the superiority only of the king
and not of the crown of England." In the
case of process into Wales my lord Vaughan
uses this expression ; and adds, the practice
has always been accordingly, as, says he, is
familiarly known by reversal or affirmance of
judgments given in the King's -bench in Ireland
m the King's bench here ; which, he con-
tinues, is enough to prove the law to be so ia
other subordinate dommions.

And in the case of Craw and Ramsay, it is
decided that Ireland and the plantations are
holden of the crown as the sovereign of the
British empire ; and the like distinction which
I took before between Anjou and Calais is made
by the lord chief justice. The same case is
reported io Ventrts.

But, to return to kin^ James : another re-
markable anecdote of his notions of govern-
ment, to the same point, is to be found in the
Journals of the House of Commons. It occurs
ID many places, but particularly in the Journal
oftheS5th of April 1621.

A bill was brought into parliament for the
liberty of a free fishery on the banks of Ame-
rica, at that time in general called Newfound-
iand.

Government seemed extremely unwilling to
sufler parliament to meddle. Says Mr. Secre-
tary—I take it from the Journals—" What
ha? e we to do with America ? They are planta-
tions ; they belong to the king.'' But good
old sir Edward Coke, Mr. Selden, Mr. Brooke,
and other great men, reply indignantly. What !
when the king grants letters patent to them
under the great seal, arc they not part of the
empire, and shall not we intrrfere ?

These observations shew the prevailing
policy of those times. And are we, then, to
wonder that the right of ultimate judicature
shoohl be claimed by the king, and that he
should artfully introduce into charters a reser-
vation of it. A reservation indeed superfluous,
if there bad been such a right ia the king per-

sonally ; and of no effect, if there was no such
right ; for then the reservation could not create
it, contrary to the princi files of the constitu-
tion. ' Heservatio, ut et protestatio, non facit
<ju8sed tuetur/ We see what Mr. Selden,
what the parliament at that time thought of it;
what lord Vaughan afterwards ; what the prac-
tice of some of the greatest antecedent kings ;
what the doctrine of the books ; what the ex-
perience of nations; what the testimony of
ages ; what reason itself speaks ; all concur*
ring that all the parts of the British empire are
under one constitution, and have all the rights
and immunities which result from that consti-
tution. The intri^es, therefore, of king
James must not weigh against natural reason,
political theory, legal auuiority, and the prin-
ciples of the constitution. * Nemini licet quod
* non per leges licet.' The gentlemen who
first went to the American settlements, in ages
when the principles of political theory were
scarcely known to the most refined, might not
foresee the tendency of, and therefore might
unwittingly submit to, this claim of king James.
But on any consideration, knowingly or nn-
knowingly, they could make no concession to
the prejudice not only of their own constitution^
but withitof oura.

If ever that question, of the relevancy of a
writ of error from any settlement of the western
world, shall come iuto litigation in this coart,
and it should fall to my lot to argue it, I hope 1
shall then know my duty, and what to say
upon it I hope I shall prove that the juris*
diction of the king in council, as the ultimate
judicature, is unconstitutional and void ; but if
the experience of a century and a half shall
be then held to outweigh arguments founded ia
principle, your lordships will say, ** The expe*
rience supports though the principle denies it,'*
and will take care that neither iheu nor now it
shall be carried farther, and argue from a peca-
liar judicial authority, upon whatever ground,
supported however by precedent if supported,
to a legislative authority supported by no pre-
cedents ; and, i beg leave to submit, not war-
ranted by the principles of the constitution.
To meet, however, the conclusion which might
be attempted to be drawn from this claim of
ultimate judicature in council, I have been
drawn insensibly into this length of discus-
sion— The occasion must l>e my apology.

I return now to conclude with the immediate
point before the Court. And in this, on what-
ever ground I consider this cause, whether in
the general view of reason and experience, tba
opinion of eminent writers of foreign nations ;
the learning of our books; the principles of the
law of empire ; the history and experience of
this country for ages ; \i ht-ther as to this par-
ticular islaud of GrcnaUft, on the terms ot^be
surrender, the treaty of pt>ace, or more especi-
ally the proclamations and patenU; whethar
on thegnpat principles of our constitution, or
the principles of natural justice and equity ;
on all, on any, on every ground I draw tnia
condustODf that on the 30th of July, 1764, bit

CampheU f. HaU.

*«• »ae cotitlEd, by Ihe prero-
n uf Eugland, to impute llie
■ liatf per cent, in inanner
I in the decUralion, ailmitted
> pica, anJ tiiuiid liy ihe *er-
h bdag an acl of IrgnlalioD, and re-
it 10 Ihe nrinciplea nl' tiial pjTernmcni to
li tUe inb*trilaiiu or iliat islaad vtm ai
ime entitled, aud wbicb heloozed parti-
Mlariy tu Mr. CampttFll, llie plaintiff, a nalii-
ni bnrn «ul>i«et of llie crown at Grral Britain,
bead *» and dticlared by Ibe verdict, and was
hi by nerj rigbt, secured to biin by every

AdJ while 1 have ibas ciatended for, and, 1
In^, eaiahtiiiliwl my ulient'» interest, I further
tria lliat Ibis Eeneral revien. of oof coi
tiMi.aatlprihcliiitary uf ourroiinlry, en
bj Ihe riecixiun of Ihis court, will n-arra
m Myli>e "^ Britatn what tbe Itoman
.1— of Rome: ■ AIi>b natit

Ml; pnpali [tumuDi propria libertas.'
"^lip, Ota.

for the dEfendant.— Tlie ques-

•pecial verdict is, whether the I m-

n of lour and a half upon the ex-

kland, in the luanner found by ttie

was, noder the circumsTiinces in which

Wand thmatuod, at the nine of the impost,

iDtl legally imposed by the crown, or

Mr, Alley na not hniio^ f^one intotbe dispute
Jlbcauthorily and pieroualive of the crown
ti any lime to niake procUuiatioDR, but exa-
■raioit ■!>« natare of this, and contending' that,
■teUtver mi^hl be the atate of the liland before
feN period, it wai iocoinpeleiit to the king
^^ thai time to give any laws whatever to
4r aUifl of Grenada, (for if any, there ii no
<>«bt of lasalioo) this has relieved me from
hjM)r brfore your lordihipa the righu of a
W( of ihia country over a cuuquered country.

What ilt'ne righti are is a principle nnl only
if lb* law of natioiia, hut has been recDgiiized
vtatcvrr it came under consideration, even by
tkc joilii«> of ihia country ; by acts of slate,
•n4 biBiiDriao* ; and, in one great inttance, de-
fiari by all the judges. In Calvin's cnse it is
rnaifalxed that the rights of conquest do be-
)<«K t" 'ti* ('■"K- *"'' t''^ rights of con-
^otal arr in titat casu extended farther than I
»i>h they sliuuld be iioderslood ; but thus
much, 1 like II, they neceuarily give, a legis-
liL:!!' authiHily. It is ool now as formerly,

"" !:ain oiptives and •la*ei,

..."II, but now the conqueror

>ii, under due reslrictinns.

■■ ■.'■■< .•.'• hfl acquires subjects. Not
> ^i^riTij. '> 111 i^'hmIs, but an authority, as
■'a BMO, (uaMMiftbie and still IVre.

Tbt «Ai^ of ib« l«Uen patent is not to alter
ik* <ifliMnm of Ibe iaiasd : it is only (n raise
iTlaiB 4utir« laiavd tbera by Ibe French king,
•lAataA lo iba kin)^ of Enfflsnil by the island
•I Baibajoea mai iba other Lesward iilaDds ;
*a dw w^ tbn^; u, ihu ii dune July, ItM,

fSTS

Lord Munififld. It vtat oiler the proclai
matiun nnd l^Dmr^i«sian ; fur, I Ihink, the pfrti
claination was in UcUiber, l;G3; llie cnmmis-
sioi) in Ajiril, 1764 } aud this is iu July : ao it
is after Uith.

Mr. Wallace continued— The patent is r,
ritd not by the governor. At the time lie take*
upon him ihe office of garenior he promuiges
ibis lax : hi* tirst uffice as governor is lu p
mulge it. Now the question is, whether tha
liiniCi bylhis]iroclaiiiaii<m. niGnnt immediBiely
In waive llie ri|/hls he had as conqueror of the
island, or nt a lulurc perioil, when Ihe flute r— *
circumstances uf Ihe iiland would admit o
legislature: when that would be was very i
cerlaia. In fact, it does not appear that tb«
tirst assembly met earlier than Ihe latter end
of Ihe year 1763, (about a year and a half
from the date uf llie letters paieni) nor does
the rerdicl find that nn asstiuhly could hav*
met sooner.

The proclamation begins with a general di-
rection lo his majnty's four governments, hy '
nameofauebec. Enst Fbrida. West Florida,
and Grenada. Then the assvmhiy of Greuada,
as 10 that part of the pniclamaliiin upon wbicU
this case turns, is to meet " as soon ns the Nlata
of the island will admit,"
ible Ihut in tilt! mean while ihff
king meant to divest bimself of his right of
tegislalinof There is no such denlaraiion; ills
' nposiible there can be such a constructtun.
If the king hnd not coiilinued a right of
laking laws before the period of their having
legislature of ibeir owu, who was the legis-
lator i* Here is no relinquishmeni on ibe part
of the crown in the mean while ; but when ua
assembly meels, the crown, will bnud orcr iha
iwers of legislation to that assembly.
It is necessary in these disiinci countries lo
provide legislative constitutions within them-
' when circumsiances will aduiit; ihey

be govemeil by ordinances 'iir acts of
ent made fur all cases and inslances
whatever. The best judges wbal laws ara
nrcestary and proper for the peave, tranquJU
lily, and gnoil order of the island, are the jiep.
sons locally resident ( thereliire it is necessary
some legislature uf this kind should be exta-
■" ' A: hot till II be, of necessity, every order
king must be observed by the governor
aud ihe jieuple.

But Mr. Alleyne has said the king hns wairei)
the right of iwioquesi. by inlroducmg court* of
Judicature ; ami that it is a part nl the benefit
uf Ihe ihtroduclioDoflhe laws of England, ihnt
all the laws of the country not agreeable lit
these ninsi he abro^aleil.

It IS ool nsual in these times in lake con-
quered natiuns under protection njmn Iheis
terms: and as U is unusual, su I Hnd, iu ihtf
opinion of Grntius, it would lathvv l>r hnrsW'
anil rigorous than indulgent. Yuur lordship)
vrill teinemhti that be sayfe it la iwnal to auttti

279J

15 GEOBGE IlL The Case of the Island of Grenada-^ [880

the ID habitants of a country conquered to pos-
sess their own laws, unless they are abaoluiely
necessary to be abrogated, for the security of
the conquering state. And similar is the opi-
Dio« of Puffendorff.

Would it be for the security of the conquer-
ing Slate to introduce so dangerous, so total, so
unnecessary a change; to alter the whole
course of their law of property, by introducing
the law of England to theuo, a peculiar Uw of
descent, differing from all other ; intricate and
complex modes of eoufcyance; a new foreign
unknown law ; its ?ery language unknown to
them ; by which those rights which have been
the subject of contract roust be devested;
owners under a fair title dispossessed of their
^tates; settlements in consideration of mar-
riage overthrown, for want of the forms eaaen-
tially required in our law.

I conceive nothing more can be meant than
that civil and criminal justice according to the
laws of England were to be introduced, for the
punishment of public offences, and the redress
of private wrongs ; and as far as might be for
the prevention of both, in which the mode of
trial, of conviction, and the whole legal pro-
cess, is the common benefit to all. ' Lex An-
glia) est lex misericordiss.'

The lenity and excellence of our criminal
laws is known throughout the world: mora
bad been burthensome ; these wera expedient
and necessary.

Mr. AUeyue has compared the situation of
this country with the other dependencies of
the crown, particularly with Irdand.

It is true my lord Coke held an idea of the
laws of Ireland being established there by an
Irish parliament ; but in this he was singular ;
nor do I think the idea of their having been
established there through the medium of an
English colony is Less uncommon, or promises
more success.

In Calvin's case, before the chancellor, and
all the judges, the case of Ireland is put as one
of the conquered countries, and tlie title of
Henry tlie second was accordingly king of
England, and lord of Ireland, 4cc. cfistinguisb-
ing between the title by right of conquest and
his title as king of England. And king John
irave them laws as a conqueror, and not by act
of parliament, and this plainly appears in Ven-
tris, in the case cited by Mr. Alleyne, where it
is expressly laid down, on the authority of three
of the judges, that Ireland was a conquered
country, and in king Henry's time remained
governed by its own laws, and so continued till
his successor, king John, in the ISth year of
his reign, by charier, and not by act of^^parlia*
ment, introduced the English laws.

But, if your lordship had found that eren by
act of parliament the laws of England had been
introduced into Ireland, would the least in-
ference have followed tliat the king alone, by
his legislative authority over a conquered coun*
trvy could not have introduced iheio, or otberii
iflie had seen expedient P
IiTeitber Wales nor Berwick-mpMi-Tireed do^

as I conceive, apply to the preeent qneatioo.
They were not pretended to be holden in right
of conquest, but as immediate fieA under the
crown of England, on the terow of the same
feodtfl protection and obedience by which Eng-
land itself was then held, and as roemben re-
united to the entire original fief; for that waa
the claim, whatever was the fkct. Nothing
like this can be dreamed concerning Grenada;
no dependence on England or Great-Britain
till the late conquest And by all the diflTereuoe
between what is claimed as a re- union an4
what can only be claimed as a new acquisition,
by right of arms, the cases difier.
■ Indeed, not relying on this, it has been
thought necessary to endeavour a comparison
between the case of thil island of Grenada an4
the American colonies, of which, in general,
the rise is known to have been from new dia-
coveries of uninhabited countries, in which tha
discoverers were encouraged to settle by cbartar
from the crown. No pretence of conquests
thev could not live without laws ; they couU
find no laws in an uninhabited country ; what
laws shouki they have then, but the lawa of
England ?

But is this the case of a country already set-
tled, where they find a people and laws? Will
the laws of England expel those laws ahneady
established, fitted to the cireurostances of tnn
place, known and familiar to the inhabitanta, m
pass themselves into a country where fhey will
beatrangers, and for which they are not locally
adapted?

Is it possible that British subjects, coming
into a country where there are other lawii
should carry the British laws with them tbU
ther, and not be governed by the laws of thn
country to which they are gone ? Can it bn
supposed of a British subject going to Han-
over, for instance ?

As to the cireumstance of an appeal to thn
king in council, as I do not think it neceosarj
to lay any particular stress upon it, it maj
suffice to say, when the crown granted tlin
charters under which the settlements were
made, it was competent to the crown to pre-
scribe the mode of appeal, which, in some rona
or other, by the royal prerogative, and for tbn
benefit of tne subject, necessarily lay in all thn
variety of disputes concerning the rights of thn
colonies. Narrowly as prerogative has been
kM>ked into, never has this branch been qnnn-
tioned, as not legal and constitutional.

When a writ of error shall be brought ha«
fore this Court, to reverse a judgment given in
the colonies, or a re- hearing moved, or, bj
what name shall I call it, to examine in thia
court a decree in council, then will be the pro-
per time for this question ; but I believe that
time will never arrive. They will look lo that
jurisdiction as they always have done: thejr
will find that redress which never vet has ' "

them. It would be a oonsiderabie aoquisitian
tQ the business of this court if your lordship
were to sit here to exercise that appellant jnria*
diction ufon wnt of error finm the ptotntnm^

Campbell v. Hall.

r fnrm ; for llie practice is nn-

|VB U Mir tMoba as murli u the theory ivas

■e lill ibii dair, in whirh lo raucli iDgenuil;

ntgnintal hiii been emplnyeri lo raise it.

•I kfli« I mmol belp aWrvint;. that it ii

t diMige in llie tanging of Ameriu to

!■ Ihr* h«*e iloiie. rdiI iIo, iliil llie |uir-

A of Entland has no riplit to titx tnem,

, il tbcy den** their coniiitutioa IVmn the

bsoiiljr ; aod now to uy, in this oanse, tlint
M> nng li*i no poner orer tbein hut as the
^ai >t ihe Briliili c«nsliturion.

Bat is lhi« caie, if the klu^ by conqaest bad
Ihfirilaiiie authnritv over UrenittU lill the ds-
■Bakly ounVI b« calleil, he hns waited it. It
koMMiJ be has parteil wiili i(, (Ibrhnw could
it, ■h«n there was nobody to lake it) but he
tat wajved the ri|;ht.

1 ««D, fay wliat I (.-an unJersiand of the
tatki, I have no idea of the possibiliiy of ihe
enim'a inii*iD)t a ri|{hl. It must be more or
miImk ; il miist be iraniil'erreil lo snmehody
fhc. Of ii remaioi In Ihe crnuii; for in Ihe
tntm there is nn luchei, no DF{i[li|t'ent abandon-
■vni, feant of all in »uch « point as this, so ei-
-si«l to order and good goYemmtM.
But, not rxoeptini! lo the mere temi. at nhat
[I J, lo whnai f Tn tbeaMt^mblv, if (o any
L-v; 1 f K that is Ihe condition nf the eranl,
IM, when ihe stale and circumataiM'es of the
iimt Uiall ailmit ihe cathnf; ol' aii asiembly,
Ibrahall be called, and fb all meet and mate
*"" ' wbicll te|(i«lati

milted to them by the c

aad

ri);hl of taKin^ tltcm by hii rale

•^i^aii'e 'ilhoHl an aMeniMy. B«l this

drably diil not meet till after (be patent In

^ — __ ._ . - -jgiu^iiiiBinififflit; they were,

the impost ; and il wt.% esla-

y Ui* pra|wr and only aulhuriiy then

|! before the iMembly did, or

I littit. ibrrefon, the Coart «ill think, from

ftiDnplai of reann and justice, thai the

^liMaitnn fur calhog an aatembly was, boih

' F wiwda and iniml of it, and in the ne-

7 of ihelhin^, enecatiiry ; ihal Ihe duly

_._ ._ ■ ^ jijji pj, j^j,) „.,j not eseculory,

lie, and liy leeal autburiiy, by lir-

r lli« paleul. And that it could not be

that Uir nUinfc of the assembly, under

ihority and by IheTolonury eram of ihe

I. abonld dehsl the doty first lefrally ini-

*- - -* - ame auibority, and lliercfore tliat

« nut rntilbsi).

H to be won-

; I ■bouU ^are expressed myself

Mit (o I centinly must, since I

» much miwuidcrBtoad by Mr.

■ I the ahnle tenor of whose artpiment

' ilat*d lo meet a <iippa«ed idea of

Uoaof En^and were introduced

k anielv by llie prodamallon of

"~ t Dy no mcuu tbe object of

A. D. 177«n

I ODUlended that the ))ro:lai
cngnitioo of the rif{hl of the i:
Grenada, as British nubjecu, to be CDVerued
by Ihe laws sod conslilutian of Eiii;lanil ; of
the praclicsbDity of rcdticina that ng^H !•
practice, and the retolutioii ot hrin^iug in all
its parts into actual eKeivlioti ii sunn as pom-
ble : tlierefore I cited the case of Ireland, and
iipuQ auihorilies. I hope, of more weigbl at
this day, Ihao Calvin's case : and I did infer
that British subjects, settling in a conaueied
country, conquered by Ibe arms of a king of
Gieat Britain, carried with them iheir owd
tana and pririU^es ; and that the moment tbe
crown rece^nizea a colony of British suhjecta
to have been settled, from that instant ii en-
gages its aulliiirily for securing to tbeui all the
rights and exemptions belotigingiothat cbarao'
ler. And I thought 1 bad proved that ibe
practice of tbe crown had been conformable to
this principle.

But, to meet Mr. Wallace upon bis own
Crounil, who asked, supposing Ibe crown en-
titled to exercise taxation over Ihe inhabitants
of Grenada, who were there, or should resort
thither, indiicriinioBtely, by tighX of cowjuesi,
how the cruwn had parted with this right, 1
ackuowleilge not properly waiveil il ? I an>
swer, let us suppose for a moment that, ante-
rior to the proclamation, llie cruwn. is con-
qiieroi', had a power to raise a permanent las
un Ihe then and future iohabilanla uf Grenada ;
and had (be xiila nccitgue poleitai, the legisla-
tive authority in the fullest tense, when the
crown declares ibey sbsll have a Icgialattoii of
their OM-n, and in Ibe mean while be governed
by tbe laws at' England, I contend from that
(iioraeDl the king bad parted with Ibe right,
supposing be hxd that right till ihen of impoi-
■Dg upon them himself, by bis sole aulboriiy, a
permanent lax. And 1 contend that the pa-
lent to gnvernor Alelville repealed and enforced
the grant, taking it as Huch for ibe present, in
the most solemn manner.

In vain would it be argued thai these grants
«f ihe laws of England were execuiory, and
therefore might be suspended : proclamaliocB
and patents such as iheie are not of soch a
flimsy nature, lo be susjieDded, that ia, fir-
tuallv repealed, to be granted lo-day, and re-
■umed lo-niorrow. And if this cinnnt be de-
nied, then Ihe English laws were the laws of
Grenada, either by prior right, or, as I have
been willing to argue, since Mr. Wallace haa
laid io much stress upon Ihe executory natura
of ihe pnwlamatinn, by actual immeiliale grant.
And there iH no one priadple of Enghth lair
more decidedly clear than that the crown ean-
nol. by its sole prerogalive, enact a law.

It win next argued, that principle* of equity
require this duty to be imputed : because il la
recited in the patent of Ibe SOIb of July that
the Leeward Carribhet: ialsodx pay it.

To this there is finil one (general ami eoarlu-
aite answer — whatever equity, wisilom, or ex-
pedience there may be in ibe mcuura, it must
be eMcalcd by legal neani. The propriety of

983]

15 GEOBGE lU. The Cate o/the Ulando/GrenaJa— [SM

th« olgect nn never, in a legal *iev, uoclif^'
the meaiu taken. ' Nil cuiquam expcdit qnod
■ DOD per lege* lioel. Nil utile ant lioneitum
*qnMl tepboa contimrium.' But a pailiciilar
UMwer ii likewise ready.

The lint place in whicfa ttiit UZ wat erei
tlioii([bt of waa the island of Birbadota ; bul
there it was not inpoaed under claim of prero-
gative, bat hy a national act of Ibeir own in ■
lemal legislature : and it waa a grant for ipe-
dal purposes esprewed, of buildiug theii
priKM, tbeir courts of jiMtic«, tbeir fortreasM,
•od lusBping ibem Air (be fnttire in repair. And
fartfaer, in conaide ration of the onfirmation of
tbiir tidea which had been leat, or were become
obacnre in eooaaqueoee of the confoaion of the
iaiaiid during the troubles of the preceding reigu
of Charles Uie first.

1 moal be particnlar in slating Ibis. The
iirti srant ofBarbadoea was to the earl ofCar-
lislnTrom Charte* the 6r«t: he dirided the
lands by aabinfeadation amongst raiioua pur-
chasers.

During the troubles lord Carlisle abandoned
4h* island; the protector, Cromwell, took pos-
MHioD, and made aeTcral grants of different
pari* of it i on the realoratino the king made a
new grant to lord Wiltougbby of Parbam.
In conKquenceofthesasereral changes of pro-
perty, and the tiolenl and sudden rerolntion of
■Hairs >in the island, mncU confusion aroae.
Tbe creditors of lord Carlide anerled their
claim; the grantees of Cromwell held by very
uncertain claims ; and lord Carlisle's creditors
aneeeedinp would necessarily hare defeated Ihe
f[nntees of lord Willou(;hby. To settle these
dispute* the crown agreed to purchase the
whole ; and for tbe purpose of raising a fond to
discharge lord Carlisle's debts, and the other
purposes already mentioned, this duty was
granted by ihe assembly of Barbadoes.

Your lordship will find tbeiie particular* in
the act set forth on the record, but more fully
in lord Clarendon's answer to tlie seventh arti-
cle of his impeachment, which is in the con-
tinnation of his history, lately Dubliahed.

I dare aay Mr. Wallace will find the princi-
ples of equity not Terr cogent on Granada, in a
comparison with BaiMdoea in this particular.

As to Nevis, Alontserrat, and Antig-ua, with
the English part of St. Chriatopber'a, the ssme
obserrationa, iu great measure, will occur.
The grants of four and a half per ccnL in these
iaianus were likewise on S|ieaal purpoaes, and

A* to tbe part of tiU Christopher's conquered
from the French, and ceded by the traaty i^
llticcht, tbe very same claim was made in the
reign of queen Anne, aaanted by an act of
privy conncil, and exemplified under the great
■aal, the same which is now made upon Gre-
nada, of imposing this duty by prerogative.
Tbe Mt waa withdrawn ; the duty never eol-
lected ; the people warmly opposed ^ admi-
^smtiaa yielded, atHl oonaenled to take it by
ad of aaaamU J ; « circunutanM inorediUe, if
Ikej hid Dgt ben oMnDood Ihu tlw ncMun

was unwsrrsnted by law, and the opposiliaa
jnsl. And when Ihe duty was finally granted
to the orown it waa nut only by aasemUy, bnl
under terms.

So much, Ibercfore, fbr an argument bnill
on the principles of equity, comparing Ibe im-
position of llii* duty by act of prerontiTe ia
Grenada with tbe same duty in tbe otoer Lee-
ward islands, by act of their own assemblies.

Mr. Wallace observed the duty waa iKb
posed in 1703.

Lord Manifield said it could not vary tbia
question an iota : that the cause was put on ill
proper footing ; tiial he took it as admitted th«
duty was laid on in 1703, and added, it waa
raited long before tbe act, which ws* in 1737.

Mr. I^atiare said the whole duty in IhattiiM
amounted lu but iot. Hr. Alleyne obaencd
on this that M. raised in 94 yenra waa «
Strang argument that hardly any planter, M
least any coneidcrsbte planter, bad aubmilltd
to pay.

Mr. All^e continued. — But farther, u
to equality, beaides the reasun* given, commM
observation will shew in wliat manner Ibea*
new settlement* in tbe inland have been made.
Large interest on loans payable yearly out ef
their estates. So far from additional bnrtlMa,
it might have been hoped from governDCnt
that Ihey would have assisted ibis inftn)
colony, alwaya much below tbe other setlt^
mcnls when in the hand* of its former posses
Bors ; and now, if this impost should prevail,
miserably below indeed.

Bul, not to want an argument, which can-
not readily baitpen tn the ingenuity^ of Iha
learned coonsci who sapports the defendanfa
cause, ir it be true that the proclsmaiioa !■
words appeara fiilly either a conveyance nr
recognition of all the righta of Britialt aulgeein
to the inhabitant* who were in Grenada, «v
should resort thither ; and that the iiland ii
not under circumstances which should make k
consLruction to aup|iort the impost faioorable ia
equity, independent of higher conslilerationa
still against such a construciion ; yel Mr. Wal-
lace argues that it must mean tliia, that lber«
should be such an impost ; because if there in
not, the enjoyment of tile laws of England ia
secured to the inhabitants, which will be an
unwise and cruel construclian. I believe Hr.
Wallace is the first politician who ever tbou^t
that waiving the claim of conquest, and in~ ~
to Ibe conquered the blessing* of a free g
meni, was cruel. And how would ii nav*
aitonithed Ihe wisdom of imperial Rome ts
bear that it was unwise !

Nor doour own writersomltloadmirelhep^
licy nt' king Edward the third, in planting a etb
lony in Cafai*, and of course communicating (s
that place the wi*e and beneficial law* of En|f»
land, to firm asupport of public order ; su pro-
ductive of security and happiness to every indU
viduil living under them.

I have the aathorit* of the great and ezcd-
Itot air UaUbaw Hale, affirming thii to hav*

Campbell V. Hall.

fectn btv pncliee in liia other conquests, as I
We ktready utMerrecl, both in ScotUnil anil
WaiB«, BBil ipiilauiljn); it highly. At least this
■k^iun may be rc«erve<J tiH Ihe inbtbltaols ol'
GimimU l^iak this benclit k burthen, tind com-

Kat it » Kucb. Mr. Campbell, certainly,
b MTt, tItHw unt fMmplHiD, fur he comes to
din ine beDelil of thote laws, as bis ilearesi
Ivtb-riftbl: anil il will bo siuffular if it ihall
bppen lh«l Boy eloquence sliall persuaile any
Miiilnat vf GretiBila ttiat il is a reproach to
th C40(|itere4 to jiartike e(|iially in those laws
iD<l conttitution nhich are ibe glory anil hap-
(lacnof ihecooqueron, and the admiration of
nsabiiid ; the English Inws : and il' Ibey
(liwiM rattier cbiiose lu sink again iota the
,>.,. ..t .. |.eo|>!e under Ibe hioJ of conquest
tlini equal liberty Hhich abohshea
.li^tinciiuns betwiuMi llie cotiquernrs
^■■il.
, . ^. , ;h iiliircruelty, boweter, which Mr.
tlTaltacc »ii(rg%9ts ia llits ; estates buve lieen
tttiti, coniracls mode, and things dune wiih
atit« lotbcregulalioni of the law Iben pre.
WBH. toaller ibis by the proclamation would
hutm muil dinppoioi tbe parties, and aiiaul

Slathing can be more fallacious ttion this ;
fair at any lime poalerior to the proclauialinn
^ tleeO, conlracl, setlietui-nl, or any olher
Mm of law had been brought into litigation,
tat appeared to have been tranncted in con-
ftnmy lu liie French law*, previous to Ibe
Baclamalioii, and while tbe laws ol France
"K yd in tbe island, thune laws would bare
"U aii»]ile<l, and tbe iuatrumenl would bavc
' i its iaietided effect according lo iliem ; and
~ Uw of Euf land would have lakeu iiolice of
"•v.aa it does of all foreign laws, where con-
''^'•ttr* Dkode nuder ilie authority of those
IT]; rxactly a> in cases which fiace hap-
-vi ID Chancery and in Ibis court. — All
■veanliie cunlracis haie Ibis eH'ccl ; and so it
isollMred, ■■ a settled rule of Uw, iu the case
ri Pwawatril and Oediie. The line, therefore,
is ■sIlLiiiitlj brood, and, at Ibe same time «uf-
Umly clear and dcfliied : from ibe pruclnma-
Wt Um Engliib Khali prevail as to all subse-

CUwiMCiiana 1 tdl the proclamation the

Dot iM Birpporl of his general proposition,
MMonutiK the nalore of Ibe rights ot a cou-
«nd people. Mr. Wallace bos cited two
MtioiM ■am**, (Grotius and TulTeudorA')
BMaa wbicli I aholl ever menliou with the
PMlaot rcfarFnec. Yet I have ever wisbeil lo
Ufaefnrai tbeseulimeiitaof writers who bate
Mmoaukd prvjudicv), and reasoned bbeially,
Mt 4«*Mni« iiiyMrIf to Ibe greuteit name with
MOAlitDttJ atlacb'iwnt. (ircat and extensive
■ Uwir groia: iheir leamliig, tbeir apphcalion
wm. It n >rtl Lnowii in Ihosc who lire conver-
■wis lb*>rwriliiig>, that they have adopted in
MM. ploers ilic iiusiuvr constiln lions of tbe
l^pfMl kw. a* BbiiraGt gtiicral Iriilhs of iia-
■awi better iD i<in*i 4>laccs their rcasnoing is
jWjMh|yui ffloB lied fetibiE lUiverHJity of

A. D. 177*.

[SSfl

the subject, and in many liable to exceptions.
Far be il from rue, howeier. to speak irre*e-
renlly of them ; Ibey have broken the grnuod.
(hougli tliey discovered not all the treasures of
the soil ; and though tbey migbl in some in-
stances be mistaken in the true quality of the
soil itself! And to their great lalioors the re-
finement of public law is originally owing.

Willi respect to the instances of prerogalira
intended to have been adduced to justify this, 1
find only one mentioned, which, surely, caoDOt
be supposed to support it by tbe comparison ;
the sriiure of Ibo Massacbuset's cliarter in
1Q83, in tbe reign of James ibe second. No
man will wonder at the violence ; tbe imprison-
menl of Ibe bishops ; tbe campaign of Jeffe-
ries ; the seizure of etery cliarler \e(t by bis
brother ; were then as acts of ordinary Justice
at home. And, when Ibe city itself was not
sale, we shall nut wonder Ibe Musachuiet't
bay was iuiaded.

Mr. Wallace has not chosen lo argue Ibe
right of ultimate judicature in Ibis courl and
in ibe House of Lords. He leaves me, there-
fore, at large, with Ibe observations I made on
that point ; and wiib a concession ibiis far at
least, that there is no argument from ei[pe>
rience lo the contrary.

The last stress, on tbe close of the argn-
menl, was placed od tbe expedience and neces-
sily of the power of legislation continuing in
the i;rawn till tbe legislaturu of lb« island »c-

Tbis argument wonld go far indeed ; it
would ultimately prove tbal ia tbe r^ess of
parliament the crown is arbitrary legislator of
this empire, and may imposes permanent Iitx
on Great Britain itself.

But the constitution has happily provided a
power in ibe crown, by which it i* enabled to
ohiiaie luddcD emergencies; or in cases not
provided, bills of indemnity have always con-
firmed by an act of state, what was required as
an exertion of extraordinary power. * Salua
pupuli suprema lex esto. fie quid delrimeuli
caperet respublica ;' affirming and strengthen-
ing Ibti generol rule by the very means used
lo protect the necessary deriation, and wbiob
notbing less than sncb a solemn judgment of
the cuUeclive body of Ibe slate allowing its ne-
cessity can protect.

iia in Grenada, from tbe first proclama-
lion in October, lrC3, lo tbe session of ihe as-
sembly in i16i, the crown bud slmdar power*
(or Dbviating sudden emergencies, amongst
tbe number of wbicb powers a permanent tax
cannot be esteemed.

i have now had tbe honour of submitting lo
your lordsbips wbat considerations occurred ta
me in reply lo Mr. Wallace's argument, oi*
which it would ill become me to «|ie>k wilb
disrespect ; 1 shiill only say ihal il apjieant
fiiirly answerable in tbe luaoucr I havu sub-

And now I trust, I may take leave of Ibis
subject by congratulating uiy client (for if belter
argiiinnts were to haw beeu fouud, Mr, Wa|<

S87]

15 GEORGE III. The Case of ike Island of Grenada-^ [888

laoe would htva discovered them) with beioflf
MCiire, and tUndiog^ on a unround which wiU
warrant my application to the Court for judg-
ment for t£le plaintiff.

Curia ulterius advisere mlt,

[Note, After the argument lord Hanalleld
•aid ; The cause has been Tory well argued.
There is one thing, bowe? er, which neither of
Tou have defined prediely. Have you any
idea a colou]^ can be settled by British subjects
without the intervention of the crown ?

Mr. AlUune, If subjects settle on an island
wninbabited, for instance a shipwrecked crew,
they cultivate, they inhabit. Jf the crown
clmuns Uiis island as a settlement by its own
■ttlyects, they have a right to say give us
a constitution, govern iis by the laws of Eng-
land or not at all. Jf it demands a tax they
have a right to say, No : till it be demanded
leplly in a constitutional mode.

Lord Mansfield, All colonies have been es-
tablished by grants from the crown. I do not
mean it as material to this question, but that it
should be understood no colony can be settled
without authority from thecn»wn. As to the
doctrine of those cases In Salkeld, 1 do not
think much of it ; it is very loose.

Mr. AUeyne, To meet the whole argument
in the cause, I at first stated, that this colony
was settled by authority of the crown.

Lord Mansfield, 1 understood you so ; let It
staod for another argument]

Afterwards in the same term on the 5th of
May 1775, it was argued by Mr. Macdonald
fbr the plaintiff, and Mr. Hargrave fur the de-
fendant, nearly to the effect following :

Mr. Macdonald. This is an action brought
•gainst a custom-house officer in the islanfl of
Grenada for money had and received. The
object is to recover a sum of money levied by
the defendant as a duty, and paid by the plain-
tiff; but paid, he contends, without legal con-
sideration.

There is a special verdict, which, after what
has been argued so fully and with so much
perspicuity, it will be only necessary for me
in point ot form to state very shortly.

The iury find the island of Grenada in the
West Indies, was in the possession of the
French king, and conquered by the British
•rms ; that there were several customs paid and
payable to the French monarch, upon goods ex-
ported and imported from and into the island.
They find the surrender of the island to the
kmg of Great Britain, in February 1762 ; in
the articles of which the inhabitants are re-
coKuixed as British subjects, and the same
protection and privileges granted as to the
ether ooloniee of America. Ami that they
•hoald not be obliged to bear arms against his
moat Christian majesty, while the then war
continued, and the Ate of the island remained
undatenniDed ; that tliey should take the oaih
of uUcgiMicf ; that they should be governed

by their own laws, until his majesty's jileasuro
should be further known.

They find the treaty of the 10th of Febma-
rv 1763, by which the French king renounoea
Nova Scoua, Canada, aiNl other oguntries to
the king of Great Britain; and in October
1763, the king of Great Britain, by his pro-
clamation, assuring the inhabitants of his new
conquests, and amongst them Grenada, of his
paternal care ; and that he has given order to
his governors that, so soon as may be, they
shall call assemblies, vrith power to the go«
vernor, with consent of the council and repre-
sentatives so assembled, to make laws as near
as may be conformable to the laws of Great
Britain: in the mean time all persons may
confide in his majesty |s royal protection, and
the benefit and enjoyment of tlie laws of Eng»
land. Then the proclamation proceeils, and
constitutes a council to determine all civil and
criminal causes according to the laws of Great
Britain ; the jury find a second proclamatioii
in March 1764, reciting the benefit of a speedy
settlement of the island of Grenada and the
other islands ; directing a snrvey of lands, and
a certain number of men and women to be
maintained on the landif under penalties ; they
further find that his majesty, by hi^ letters pa^
tent in April 1764, made Robert Melville, esq.
his governor in the island, in the room of go«
vernor Pinfold, to act under instructions given
and to lie after given, ordering him, as soon •■
situation and circumstances will admit, to call
assemblies, with full |M>wer to make andor*
dain laws, statutes and ordinances, for the
welfare and good government of the people
of the island of Grenada.

Afterwards by letters patent the 20th of
July, 1764, they find a ux imposed by claim
of prerogative in the same manner as in the
island of Jiarbadoes the 20th of July 1764, of
four and a half per cent, on commodities ez-
p<»rted ; they find the defendant levied the tax,
and plaintiff paid it.

The verdict farther finds the action brought
by consent of the attorney -general.

I am humbly to con tend before your lord-
ships, first, that no such tax could be imposed
by prerogative.

And secondly, that, admitting the crown by
prerogative was entitled to have imposed such
a tax, his majesty by his proclamation of Oo-
tol)er 1763, prior to the instrument for raialog
such tax, has waived that rif^ht.

Your lordship finds by the special verdict
that the island of Grenada was conquered by
the British arms in February 1763, and bj
treaty siirretidnred.

1 take it to be clear that the sovereign of the
state conquers not for himself personally, but '
for the state : and according to this I have m
great authority, which 1 shall beg leave to die
to your lordship.

Vattel— He save, it is asked to whom the
conqfie»t belongs, the prince or state? This
question ought never to have been asked*
Whose are the arms ; whose the expenoe T If

4

8S9J

CamjMl V. Hall,

A. D. 1774.

[390

be coni|iiereil tt his own, yet whose blood is
shed .' If he use<f mercenary troops, dofs not
be expose his slate to the reserjti;:ent of the
esHny ?

I collect from the same author, tvho lays it
down as a princiiile of \\\o. Inw of imtion«,*i!iat
ifau uu in habited country \w plnnti'd hy British
laitjects', all the Eu<rlish laws (which nro the
lirtii ris;lil of evary subject) are there in;-
Bti'iately ; hut, W it be a conquered 8tate
vbich has laws i«f its own, those laws rouiain
ibcre until uttiersare provided.

liord Mamjicid, Does he quote any autho-
ritifs?

BIr. MacJo'iuld continued. After a country
is become part of the state,.|ie seems to take
it, as a principle, that it partakes of its consti-
Ihtiun ; and Ihcrcfure not to think autiuirities
necessary.

Lurd Coke.*s Reports— Calvin's case — that
tke kio^ uuky a!t( r or c!inn;;o the laws of a
ciinqucreil cou^itry^ but till he doth, thr foinief
laws remain. This can only menu Jlugrmtle
i>r/Aitbat he may do it ; or in countrich whvi'C'
ia the whole Ir^rislation is in the kin*^.

S«tk..411, the dinWcnce of the fac-i.s in that
faie, preveDlJi my i|U0tin(; to your lordship
Ihc derision itself; hut upon the t^eneral prin-
ciple nliat the Coint laid down ua^ (hiiK: Jn
tbiecase of ;in uninhabited country, oil laws in
fiiree in £nji;lanti are in force there ; hut, Ja-
■aica bavint; been a conipiered counliy, and
am found pared of the |}riti<«h domiiiiouN, the
bws of Jamaica stand in power till otli^TS are
ipiminied.

rijord MansQeld said upon this, the opiuiiMis
Vie tery IfMise, ami with a total i|;*nuraucr of
facts: Jamaica uas conquered by Oliver
Croiuwcll ; I (>elieie none of the iMiiupiered
ubjects remaincil. It is ahsi'ird, that in the
rui'inies liiey should curry all the laus of
Eogluml with ihi>m; thi'V carry only ^uch
ai are applicable to thrtr siiuation : I re-
BCQiber It lias been determined in the i'(>iin-
Qi : there was a (piestion whether the sia-
toie of cliaritalile uses operated on the i^ldini of
.\e%ii: it was determined it did nut; ami no
laiikbut such as w^re applicable to their condi-
iioD, unless expre^isly enacted.]

I would farthfr rcmaik. that where the words
** kitii^or M)verei;(ii'* in treatises of ircneral law
are introduced, I would understand them ac-
cordin«r to the naiure of the state of which
tliey are spoken, or to whirh to be applied.
Those wonls of (Jrotios, *' Rex el re^^nuiii,"
tnll^late tliiiu into iJntch, I should call the
AkiKi general the kiii«r or sovereiirn ; and if
iiii'i En^rlish *^ kiu<; and parliament." I don't
eoiitfnil that lli«' furiiial part of the law of
Eiiif-and, hut that the iei^islative part, goes thi-
llier. 1 1 I am ri«rbt in my idea of the law of
bstiwfis, it confines the power of the con-
quprrir, merely within the time of contiict, and
whiUt I lie sword is the only law to which
tither aide can resort ; but, wheu a couhtry

Vt>L. XX.

surrendrrs to the British arms, when militarj
<l^')vernment erases, what can come in hut the
law which ^otcriis every particular sutijt'Ct ;
the h'G^islaiioii of (iSreat Britain l* When the
sword is once s^crithed, I cannot conceive of
tlie cxistenr.e ol any other power but the legis*
lative prwcr. ttip cunsutntiona! law, or c^overn*
mint. Tiie fprnis of their constitution may
an>l must reniriin tilT the executive |iower dif-
fuses ti:o'<e wh'i'h ohtnin in his other domi«
iiioiis. 1 take it that layi'-ic on imposts with*
out constant ot'pnr'inment was one of the f^reat
points on which the Kevolution turned ; and
Huother revo!uti'>n much earlier; and MajTna
Charta, and almost innumernble statutes. When
we talk ujron this sul.ject, the present state of
thinirs is a!wa\s out of the question : 1 shall
therefitre discuss the topic freely.

Lord Coke in his treatise on the statute of
taMin^e i<nys, no subject shall have money le-
vied on him without consent of parliament ;
and after i^oes farther and says, no man, thai
is, I conceive, who can call hiuisclf a Hritish
sid»jert, !hoti<;h in another country ^ shall be
taxed without his representatives.

Here upon the principle of the law of cod-
qui St, hy what reason can the power extend
over the conquering people them>e|ves; shall
those who conquered wiih him share the fate
of the conqncrt'd? It would be repu>^naiit to
every principle of reason, and to every writer
upon ttie law of nations. '

Vattr!, pa'j:e 02, lays it down as a principle
of the law of nutioos, that wherever a nation
Settles and establishes a colony, that colony
ht'coniirs a part of tlic dominion, and all that ta
said of tilt parriit state applies to the colony.

(■ rutin { >:iys, that subjects settled in a coun-
try larry the same privileges they left behind
them.

^V hat is thr difTerciice between settling in a
country unii.habiied or inhahiii'd ? As lo the
evrcolivi- pnivf'V it is this : they must wait the
directions ofihat power ; as to tlu* legislative,
the iaw is \\\f same to them as that whi'jh go-
verns nic. ;iiul rvery man who hears me.

1(321, >rtich irlii, 26th, a hill hrouuht into
C'iuncil. — It was that which restrained the
fishery.

The journal of the House says — The se*
cretary said this i<; a conquered country, it ia
the kint^*s ; }ou have nothing to do with it:
the pailiament held they were part of the do-
minions of the state ; they say the nenalties and
forfeitures are void, as not t>eing by authority
uf parliiment.

Sir K. Coke said, how ! not subject to par-
liament ! why they pass by the king's Utters
patent ?

To be sure it is true the king cannot (cr.int
penalties and forfeitures; for that would be
imposing a tax under colour ; and it is proved
demonstrably the prerogative of the crown had
not that power over them.

[Lord Mantfield, I take it those penaUica
were recoverable here.]
U

*91]

15 GEORGE HI. The Case of the Island of Grenada^ [293

The coDfiemipnce in the ?ery next charter
WM a f^rant or a free fishery.

In the charter {^ranted to Mr. Penn there is
this remarkable clinse, that no imtiosiuon shall
be le?ie(l on the colony without consent of the
proprietor and assembfy, but by act of parlia-
ment in England. Calais was a colony.

[Lord Mantfield, Was Calais a colony ? It
Vras ceded by the treaty of Bretig^uy.]

Lonl Vaoghan, 290, states writs of Non Mo-
lestando, issuini; out of Chancery to the mayor
of Calais, and di?era writs of error.

With regard to the other parts not colonized,
airnaandatory writs issued hence as they might
do to any part of the kiug'a dominions. Lord
Faughan, but without pr^edent, says, writs of
error might issue to Ireland ; I don't find
however that remedial writs ever issued^ but
mandatory writs.

The conquest of Wales, by Edward the first,
hat already been very fully considered, and I
find no reason to depart from the ground then
taken. The language of that king was that
every part of his dominions not in his possession
was teudatory to him, ' quia in propnetatis do-

* minium totaliter conversa et tanquam para

* corpori annexa et unita.'

From the conquest no instance of any but
the legal authority exercised.

The conquest of Ireland is the next. Co. 4th
Inst, aavs that H. 2 ordered the laws kept in
England to be observed in Ireland, and that
he sent a transcript. Leland considered this as
merely declaratory of the necessary conse-
quences of the laws already received.

In Harris's Hibemia, from the records, a
mnt to Felix Stephens, with the wanlships :
tnis could not have been constituted without
manner of recovering according to the laws of
Eiigland.

£ord Holt says, (which cdncurs with this ar-
gument,) it was not the mere conquest, but the
subsequent settling, which let them into the
tame rights with the other subjects.

In Mr. Petit, 80, to shew the Commons of
England sat separate before the S7 H. S, a re-
gister is cited.

In the S8th of Henry the third, by the queen
regent to the archbishops, bishops, &c. of Ire-
land, to assemble. Therefore Ireland, Wales,
Scotland, all partook of the constitution ; all
were and are exempt from taxation by prero-
gatire. I have spoken already of Pensylvania ;
the same argument will apply to the other
colonies ; the same to Grenada.

But secondly, even if the colonies are not
exempt from such taxation by prerogative, ex-
cept the king waive and renounce it, has not
the king barred his right ?

The capitulation req'iires liberty of selling
lands. They are allowed to sell them to Bri-
tish subjects.

They desire the laws of Antigua and St.
Christopher's, which, except a few local ordi-
nances, are the same as in £nglan«l, and they
are promiied in answtf thai they sbaU be con-
iidered ai Biitiah soljeq^.

October 7, 1763. That all persons paay rely
on the royal favour of Great Britain till the as-
sembly can be gut together, courts of jostice
are to be erected, with authority over eaasee
criminal and civil, as near as may he to the
laws of England.

Then in March it is taken for granted that
they have relied on the encouragement and as-
surances of the former proclamation, and a sur^
vey and distribution of lands is ordered.

Then by the patent creating Mr. Melville
^vernor of Grenada and the other islands, he
18 ordered to call an assembly as soon aa poe-
sible, for the purpose of making laws. 1 can
see nothing stronger than the language of the
proclamation.

That proclamation was said to be executoty*
« The calling an assembly is merely discrer
tionary in the governor." Shall the eflfect of
the proclamation he suspended on that event?
Must we construe, " J give the law of En{p«
land until you have an assembly" to this,
<* You shall not have the laws of England till
you have an assembly ?'*

The legislature of the colonies might make
such addition of local ordinances as they sboold
think fit.

One of the benefits is this proclamation.

On what authority was the proclamation f
The king had no right to levy the tax 80th
July 1764, unless under the patent in April.
We need only compare the dates.

But it is said there is no law at all. If the
kin|f has not, who has ? I answer, the supreme
legislative power of the state. The stamp- act
prevailed at that time.

It is a principle in contracts between politi-
cal bodies contracting, still mora necessary
than between private persons, that the grant
once made, can never be recalled, and cannot
be released till the conditions of the contract are
broken by the one or the other.

This compact is what every speculative
writer requires in his closet ; what practice re-
quires in all ages between nations; and which,
mutually and irreversibly bound both partiea.

As to the island of St. Christopher's, the opi-
nion of lord Ilardwicke and sir £. Northey it
observable.

They certify they have prepared a draught
of several laws of iour and a half per cent, oa
the conquered pari of St. Christopher's, as Au* aa
they thought the condition wonld permit, coo*
formably to the proclamation 1703, which wat
in the time of the war.

Sir Philip Yorke, in the year 17S9, and rir
Clement Worge, attorney and solicitor-gene*
rals, were asked how far the king could, by hie
prerogative, levy a tax on the island of Ja«
niaica. They answered, that if Jamaica ii
still to be considered as a conquered country,
the king has that right ; but if it be in theaituft-
tion of the other islands the tax cannot be leviedl,
unless by act of assembly, or of Kngliih
parliament.

[Lord Mmi^field^^l belie?e your report
wnnig*]

Cam}ibdl V. llaU.

t was ex|ie<]ieai. II' it is
It thai it Ti ex|iedienl lo them \a li«ve llieii'
_-> l^ro from lliein (Iml I rkDool conceive
> ihal (buulJ be) tlie tax i> tery i-ip«>lient:
I I liat* uu iliiiilil ihe Cniirl will cooKJtler
U ii Uwl'ul, ami upon ihul ground
1 giHHl ex|>eGlalion, llie cauie of ihe

■^ ManififJi—Thej «llow the laliilily
_to hUrri poleiit of 1764, iii fitr a» Ihry an-
Bibe poll 4uly ; (his come!* in lieu or it.

t*'tg uetti paid niter the
was au iDierial of two

Mr. llargraM. My lord ; when I caii<tider
lit great imporuncu orthei|iie«tioas arisiDg in
llm now, Koil tiow ably aail Icnrnetlly Uiey
lM*a biwn ari;u?<I by ihe gtrDtlemun oq Ihe
uhfT aide, I find inyiflf unilrr extreme dilH-
nltics; and I wi»h, that llie Isak of auswei'iaK
Nch Irtrueil arffitmenti bud Tallen upsn aome
p«i«Da more capable ol acquitting biniself of it
than I am.

TwnquFttidiiihaTelweD made io thiacauae;
n»r II a genenil (jUMlioD, Whether the king
ly liin |<rer<if^iite haa a rii^bl to tax a cod-
ipttvi iiiiinlry T — The other u a more uarli-
tularqui-ition ; and thai ia, Wbelhi>r the ulaiul
■"'(■■riiads at the lime of impnsiui; Ihe djiy of
'^uran<l M hall' |ier cent, naa to be conaideied
>i 1 ci>oi|iivrvd coiiiilry ?

11 jr (ard ; it is not necessary to debute geiie-
rilly, utiat ia the tlfect ofcomiuest, or what
r^ii« thecontfuerur hi* over ibe iieajdetoo-
' i-red. Tu dralioy, to kill. In deijioil aud np-
■rrt, are pcelension^ I should be ibiicked lo
i-Eue in favour of. Butlbrre are some righb
■dicit nluBt be allowed lo (he conqueror; and
(■ liai, as 1 apprehend, a rl^ht of making lawi
Li gaterti a Conquered (leopte. If, indeed, he
rmiMiit* to aiifiulatioiia ia their favour, Itiey
smtmttl ibe l*iti*Ulire|)aweraf the raoqueror;
:>d ouubl la Im rigidly obaerved. Bui if ihere
' I lUAmiiuoo williout any particular lermi,
itK-B tiie full aoverei^niy vetu in the canquerur ;
U'l br haa llic IpKnUtite power without any
uW rules In ilirect him io Ihe exercise, than
ibocr wliicli natural justice and equity pre-
KcihF. Kuril is Ihe i^eDcral doctrine in respect
\i I rfinijiiFred coiinirv ; and under the quali-
ar.iHJi>. I haie alalei] llie ritjhis of Ihe coa-
'j'lrii.r I.I rii.i, 1 appreheuil my learned friend

Kill ic4ii't' iliiuk projicr lo deny Ibeni. Bui

ibi'ii.'li Uic Keoenl prnpoaitiun maybe true,
uilMitilf cHn b« mfrrred from it to explain,
• Il.i !>'.'> r.h aiiil what iireioiiati'es tlie kinjc of
(('••I lliii.iin ia roliilcit In eierciiie oter iha
rmii.iri. V 111' iiblaina by eonqiieat. The Keiieral

|> 'y iilii-m, ihni ihe cmquerrd coun-

■ ■ I . 'iilijipi In ihediimini'inuf the iie"-
i"'iii|;: hut huw tu< h dominion ia to
V- ■, Mi>ril. in what iirrwin* the |>ower* of
r tealail, ilepandu upon ihrir uwn
■I cuitnma, and the I'onti of ll^eir own
' «#od (OMruaMOt.

A. D. 1774.

[90^

If Ihe king of France make* s coni]UNt, lh»
aoyereiKn ufcourKe, as KOun ai the conquest ia
DDBde, unsnmes the sole l^iiUtion of the peo-
ple conquered,

In the case of a mixed g^rerDmenl like aurf ,
tl)e lesiElmire power over a conquereil counlry
may be in the kini; only, or in the king and
llie two Houses of Parliament, ll might be a
nueslion of some difficully (o decide, in whom
the lettialalive power ought to reside in such
caseaccoi'iling to our conslilulion, if there were
no precedents of law lo f^ulde and direct ui.
But unless 1 am greatly deaeited the point haa
already been determined: and all the aulbo-
riliea which are to be ni^l with upon the sub-
ject, uniformly concur in Ihe doctrine, Ihat
the power of imposing laws upon a conquered
country belongs to tue king as a part of his
I>rerO};alI«e. It has been ohjeclcd by your tord^
ship, thai the cases which were died upon the
former argument, as well as those now cited
by my leuned friend, were so full of i(iaccurK-
Gies, that they were not mucii lo be depended
upon. So far as regards historical fact^, I
agree, that the ubservaUon is just: f>|il ^ill^
respect lo ibe principle of taw, the cfises ar^
clear, strong, and uniforni, ami all of llieni
ascribe to Uie king ihe urerngaliie of imposing
laws upon a coiiqueTed couDlry iu leritis lbs
most explicit. What countries fall under Iha^
description, whether Ireland, Wales, or uther
countries which have been mentioned fall under
it, Ihe authorities differ abuul '■ but in respec^
lo Ibe dDctrine uf law there is nut the jeaal dis-
agreement.

The earliest case, in which 1 find any thinir
upon ihe suliiect, is Culriii's case ; and I will
slate In Ihe Court so much out of that case as
is applicable to the present lubjeet. Lord Cnk«
raenliuna ia Caliin's case, thitl a disiinclion had
been taken between countries vested in tha
king by conquest and couiilries coming to him
by descent. This ifave uccusiun lo an enquiry,
whether Ihe king bad greater powers over ihe
former ihan over the latter ; and it was atjreed
by ibe judites, ibat he bad; and that

to i

y obtained by conquest he had authority
i laws, In reporting this doclri

lord Coke mixes with il another diatinclion be-
tween Infidel and Christian louotries, which ia
now Juhtly exploded. But ibis ought not to
prejudice the other pari of ihe doctrine, wbick

is nul liable to I lie same objection

Mr. Uargrave. My lord, I cite the case, not
nn account ol Ihe dislini;lion between Infidel*
and Christians, but lor Ibe doctrine assenied l«

Terence derived from the rrligiuti i
try may he absurd and unreaMmnble, mill ihrra
may be other parts of the rase nol liable lo ub-
jectiun I^rdt'oke, dnu'ribiiiu the kii-u's power
over a cuoqoeced cnunlfv.snyii, " lie may at
^euura alur and diauge ibe iaw« ef ihf

295]

15 GEORGE III. The Case nfthe Island of Grenada— [296

ku)«;(lom : hut till lie does make an alteration
ttie undent laws remain." So that accordintr
to the opinion in this case, the kinji; has the
cou)|)lKe power of chann^ini^ the laws of the
conqu.'red people, as he thinks proper and
OMivenient. He may give them the laws of
£nt;laud or any other laws: hut if the En;i:lish
laws are once f^iven, from that time the kin<;'8
preroirative of imposinti^ laws ceases; and lord
Coke au^rees, that then their laws can only be
<^an;;cd by act of parliament. This doctrine
from Calvin's case is of impoitanre: tvir it is
the 0|)iuion of all the judj^es, and not altogether
extrajudicial, being an observation on a dis-
tinction, which had been made by the counsel
against Calvin; who distinguished between
countries acquired by conquest, and kingdoms
coming to the king by descent; and assorted,
that countries of conquest arc parcel of £ng
land, because acquired by the arms and treasure
of England, and that such countries imme-
diately become subject to the law of £ngland.

But this is not merely the doctrine of lord
Coke's time, the same prerogative has been at-
tributed to the crown in all cases, in which it
was necessary to consider the subject both be-
fore and since the Revolution. Indeed no case
has arisen, which required a judicial opinion ;
but there have been several cases, in the argu-
ment of which the doctrine in Calvin's case has
been mcnf ionod and observed upon ; and in all
of them it has been asserted botli by the judges
and counsel as law.

The first case I shall mention is Dutton and'
Howell, Hill. 3 James 3, in the King's-bench,
and afterwards in parliament. It is in 3 Mod.
159, and in Shower's Parliamenury Cases 1^4.
This cAse was an action brought against the
jgfOvemor of T5arbadoes for false imprisonment ;
and the counsel for the plaintiff agreed, that,
according to Calviirs case, the king may im-
pose laws upon a eouquered country, but de~
tiied that Darba<loe« was u conquest. The
counsel for the plaintiff, whose interest required,
that the doctrine should he controverted, if
there was a chance of doing it with suc-
cess, assents to it without hesitation. The
words of Shower are, ** It was a^^rced that
according to Calvin's case, upon the conquest
of an infidel country, all the old laws are abro-
gated CO intfantc^ and the king imposes what
laws he pleases ; and in the case of the conquest
of a Christian country he may change tbem
At pleasure and appoint such as* he thinks fit."
The rejiorter goes on and sa\ s, ** though Coke
quotes no authority for it" (wl)irh is a mistake
of the reporter, for lord Coke cites the case of
Ireland and other instances in which the crown
bad exercised such a povier) ** this may be
consonant to reason. But it was denied that
Barbadocs was a conquest. 1 1 wa^ a colony or
plantatioii, and that imports the contrary, and by
such uanies these plantations ha%e always gone
in letters pratentj proclamations and acts of par-
ItaroeDt." The book then cites some autliori*
ties to prof e, that Barbadoes was a plantation or
litdcneot of EngliiluiieQ wiui tb« king**

consent. Here your lordships will observe,
that the sole question was, whether Barbadoes
should be deemed a colony or a coiiqnest ; and
it seems to have been agreed by all, that if it
was a conqurred country the king hati authn-
rity to impose laws. But this case was before
the Revolution.

Bianchard and Galdy, which has been so
frequently mentione<l to your lordship, is the
next case. It was after the Revolution, and h
in Comberbatch 238, and 4 ^lod. 215. and 3
8alkeld411. The question in that case Mas,
whether selling the ofiice of deputy provost
marshal in Jatnaica was within the statute of
Edw. 6, and tiie Court held that it did nut ex*
tend tu Jamaica, because it being a conquered
country, the laws of England did not extend to
it till 'introduced by the conqueror or his suc-
cessors, meaning dearly, the king, for the word
' successors' will not apply to parliament. I
will not repeat to your lordship the words of
the report in Salkeld, as they have been al*
ready state<l more than once.

Another case since the Revolution, in which
the doctrine is mentioned, is in 2 Feere \\\U
liams 76, and there, my lonl, it was said by the
master of the Rolls to be determineil by fbe
lords of the privy council, that if there be a
new uninhabited country found out by English-
men, as the law of England is the birthright of
every subject, so wherever they go they carry
their laws with them ; but where the king of
England conquers a country it is a different
consideration, for there the conqueror by , saving
the lives of the people gains a rii^ht and pro-
perty in the people, in consequence of which
lie may impose upon them what laws ha
pleases.

Lord Mansfield. It is ill expressed in the
report ; 1 take it the master of tlie Rolls did
not express himself so.

Mr. Harpravc. My lord, the^ are (he only
cases, in which I find, that the general doc-
trine in respect to the king's prerogative over a
conquered country has come into question.

But there are instances in \% hich the kin^
has artually exerted this prerogative of giving
laws to a ctMiquered country.

The first instance is that of Ireland. My
lord, authois differ very much in their opinions
about the manner, in \s hieh the laws of Eng-
land were introduced into Ireland. Lord Cuke
in Calvin's case considers king John as having
given the !aws of Envrland to Ireland. The
words are — ** If a king has a Christian kingp-
dom by conquest, as kinif Henry the 2d bad
Ireland, after king John had given unto them,
l>eiiig under his obedience and subjection, the
laws of Kiigland for the government of that
country, no succeeding king could alter the
same without parliament." Calvin's case, T
Co. 176. Here lord Coke treats Ireland as a
conquered country, and king John as giving
laws as a conquei^r. But in the 4th Institute
king Hvnry the 2d is said to have partly io-
trodnoMi tbam before; and there lortl Colit

897] Campbell v. Hall.

rifps several reconis of the reififn of Henry 3,
in which kin|;^ John is said to have ordained,
that the laws of England shonld be obtierved id
Irdaod. But one of them expretisefi, that he
ntrodnced them with the common consent of
dill Ireland. The words of the record are,
^consuetudines et lei^fes re^rni nostri Angliie
^■as bonae memorise Juhanne<$ rex pater noster
it coram uni omninm de HLberni^ consensu
ineri statuit in terru ilia," 4 Inst. 349. From
dw record and other circumstances attcndiuji^f
tkeennqueitt of Ireland, Mr. Molyneux in his
areuraent ani^ainst the authority of the Eni^listb
parliament to hind Ireland by statutes, has in-
ferred, that the laws of England were not im-
posed upon the Irish as a conquered people,
wt were extended to them at their own desire
lad with tbcir own consent. But sir John
Darib's account of the introduction of the
Ea^liali laws into Ireland seema the most
a^^reeabie lo history ; and according* to him
ihiey were not established * bimul et semeP
over the whole country, but pfradually, first
aver so muc4i of the country as was possessed by
the Eof^lish colonists in Ireland, and at lencftb
orer the other parts of the island, as the kinsj^
from time to time thou$(ht proper tp extend the
protection of the Enij^lisb laws, which was not
uaitersally till the Sd year of James 1, who by
prochunation declared, that he received all the
aativca under his royal protection. Sir John
Dario'i Reports, 101 to 108, and bis book on
the causes why Ireland was not aubdued ^till
the bei^inning of the reign of James the Ist.
Tbe further particulars on the subject will be
fiNwd in Pryn on 4 Inst., sir Matthew Hale'i
lirtory of the Common Law, tbe 1st vol. of
Ubnd's History of Ireland, Nicholson's Irish
fliflorical Library, and two controversial tracts
« the Eneliah parliaiueut's power of making
]im% tor Ireland in Harris's Hibernica. Tbe
two tracts were nritten about the year 1641,
ibotti^h not pulilishedtill within these few years.
Tbe occasion of tlie rontrovertiv was the Act of
Adventurers made iti the 17th of Charles 1,
vhich declared mauy Irish persons to be rebels,
lad disposed of their lands to oihers. The
tract against tbe right of the Eni^lish parlia-
neatis said to have been written by sir Rich-
ard Bolton, or as Mr. Hairis rather thinks, by
Mr. Patrick D'Arcy, an eminent lawyer of
Ikaae times ; and the tract for the right was
written by sir Samuel May art, Serjeant at law.
& much for the time and manner of introduo-
iag the English laws into Ireland; and it is
ffvmirkable, that however the several writers
differ in explaining tbe mode of establishing
tbe English laws, there is not one who denies
tbe right of the kintj; of England to impose
laiva on a conouered country by prerogative,
eieept Mr. Molyneux, whose arguments, it
nnst be coiitesoed, have a tendency that way.
tbme actually attribute the introduction of the
EoKlisb laws to an exertion of the royal pre-
toyative, and tiie assertion aeems well founded
ja napcci to such parts of IrelaiMl as were not
Sogliah •oloBiet. Butirbatef er the fact might ,

A. D. 1774.

[SgB

be in respect to Ireland, all, except Mr. Molj*
neux, agree, that the constitution invested th«
king with such an authority over a conquered
country, lu the treatises by D'Arcy and
Mayan, Calvin's case is particularly 0010^
mented upon ; and both writers concur in th«
principle there laid doHu as to conquered coun-
tries ; and both recognize it to be the law of
England ; the only difterence between them in
this particular being, that Mr. D'Arcy lop-
poses king John to have introduced the lawi of
England, and that serjeant Mayart aupposei
tliein to have been introduced by kinir UenrT
tbe 2d. J B J

My lord, Wales is another instance in whick
the prerogative of imposing laws either hma
been, or as all the books agree, might have
lieen exerted. When Edward the first had
conquered Wales, some of its ancient lawi
were changed, and made conformable to tbe
laws of England, though the greatest part of
them remained in force till the S7tb of Henrj
8. But it ia not clear, whether tbe 19tb of
Edward 1, sometimes called Statutum Wallita
and aometimea the statute of Rothland, by
which the alteration was first effected, was an
act of parliament or merely a royal cbarteTit
It ia printed among our statutes, and lord Coke
and lord Hale call it a statute, and it ia so called
in Plowden; but sir John Davia calla it a
charter. Lord chief justice Vaugban aeeoM
doubtful what it is, and Mr. Barrington in bie
Observations on ancient .Statutes ia of opinion,
that it ia not a statute. 4 Inst. 239 ; Hale'a
Hiitory of Common Law 182 ; Plowden 126; ^
Davis'a Reports 114 ; Vaugban S99. and Bar-
rington, 2nd edit. p. 84. But whatever was
tbe mode of first abrogating the Welch laws
and aubstitutingthe Uwa of England, lord chief
juatice Vaugban allows the authority of king
Edward to make the alteration without an act .
of parliament. In speaking of Wales, and of
the 12th of Edward 1, hia words are, ** 80 at
from this time it being of tbe dominions of
the English, the parliament of England
might make laws to bind it : but it waa net
immediately necessary it should ; but iti
former lawa (excepting in point of aove-
reignty) ibight atitl obtain, or such other as
Edward tbe 1st should constitute, to whom
they had submitted, and accordingly their
laws after their submission were partly their
old laws, and partly new ordained by him,"
p. 400.

Lord Manificld, Edward the 1st considered
Wales as an aotient fief of the crown of Eng-
land. The statute so represents it.

Mr. Hargrove, My lord, so far aa lord
Vaugban goes the authority is the same ; be-
cause he treats it as a conquered country, and
doea not found himself on Walea being a fief
of the king of England. He considers Wales
aa having auhmitted to Edward the first aa a
conqueror ; and therefore attributes to him a
power of imposing laws ; though he ia doubt-
ful whether lie exerciied it, or wbetlMr theal*

9S9]

15 GEORGE III. The Case of the Island ofGrenadt

tirttioD of the Welch laws was made by the
Aathority of parliament.

I am now come, my lord, to America ; and
thall ftata bow the |irerogatiTe has been exer-
cited there. One ffeneral obser? ation may be
CLBplied to our colonies in America and the
It eat Indies, which is, that all of them, except
•ome of the few ceded to us by foreign states,
whose constitutions bate not wen yet Taried,
derite the whole frame of their gofernment
from an exercise of the royal prerogati?e.
Their sroTernors, their councils, their assem-
blies; uietr courts of justice ; all orifpnate from
giAs of the crown. Their legisiatife powers,
•fen their powers of taxation, flow from the
came source. The more early charters from
the crown, those antecedent to the reign of
James the 1st, were mere grants of the soil of
newly disco? ered countries without fixing any
form of g^eramcnt. The first charter for
erecting the government of an American
colony bears date the 10th of April 1606, and
was to the two Virginia companies. It is wor-
thy of notice, that by this charter the king ?ests
the powers of government and legislation in
Mich as should be appointed by a council of
wersons resident in London, tknd abo imposes a
my of two and a half per cent, on merchan-
dise bought and sold within the colony. But
this was before the Revolution, in times when
the prerogative was too oflen carried beyond its
d«e and constitutional limits; and therefore
much cannot be inferred from exertions of the
fMPerogative during such a period. However,
even since the Revolution, there have been
great law^ren, who have attributed to the king
a prerogative of taxing such of our American
•ml West India possessions as are countries of
eoM|uest. The case of Blanchard and Galdy,
in which lord chief justice Holt and the other
judges of the King's- bench recognised the
doctnne in Calvin's case as to the king's gene-
tal powers of imposing laws on a conquered
country, and the case from Peere Williams, in
which the same doctiioe was laid down as
law, have been already stated as a confirma-
^n of the same principle of law.

The instances, in which the king's particu-
lar power of imposing taxes on a conquered
country has been exercised or come into ques-
tion with respeot to America, shall now be
mentioned.

In 1686, the government of New England
being seized into the hands of the crown under
a jii«lgment in a Cluo Warranto, kinflf James 2,
appointed a governor and council with power
to continue the former taxes, till they should
■ettle other taxes under this commission. The
ffovernor and council nasned an art continuing
-me fonner taxes, and in the year after the Re-
volution (and it is u|M>n that account 1 s|)eak of
'the case, for I should be ashamed to mention a
preceflent of the time of James the 3nd upon
4he sul^ct of prerogative, unless it was sup-
porteil by the opinion of theme lawyers, who
lived after the Revolution,) loni 8omm«^« and
«r Geoife Tkeby, upon being ceosiilMd io the

[90(

case of one Usher, gave their opinion, that thi
ofiicers of the revenue who collected aucl
taxes were not liable to auy action for •
doing —

Lord Mansfield. The king appointed tb
governor and council. What were the power
given them ?

Mr. Hargrove, A power to collect forme
taxes till they should settle other taxes ; aw
under this commission the governor and coon
cil passed an act continuing the former taxes.

Lord Mansfield, That appointment reapeol
ing the collection of taxes was temporary.

Nr. Hargrave, It was the year after tiK
Revolution that lord Sommers and sir Geoigt
Treby gave their opinions. Lord Sommer
and sir George Treby were consulted upon tb
legality of such taxes in 1689.

Lord Mansfield. They were attorney and n
licitor general, I believe.

Mr. Hargrave, Their opinion iieing givai
so soon after the Revolution becomes a vtr
strong authority,' unless a difierenoe can i
established between a tax revived and a nai
Ux.

Lord Mansfield, How do von autbentiaite it

Mr. HttTfrave, I have the case in my kam
with the opinions upon it.

Lord Mansfield. Is it official P

Mr. Hargrave. I believe it is an oflicial can

Lord Mansfield, Is it referred to them as sf
ficers of the crown ?

Mr. Hargrave, It don't appear in whm
name they were consulted ; but most probaMj
it was by the directipn of the crown. [Hai
Air. Hargrave stated the words of lord 8o»
mers's opinion.]

Lord Mamfield. They considered the cbarlR
being vacated as if it never had existed, asi
the charter was out of the way, and they hid
no particular constitution given them by thi
crown, and so it went from the RevofuliM
down to 1694 or 95 till the 4th of king Willias^
their present charter was given them in the 4lh
of king William.

[Here Mr. Hargrave stated sir George 1W
by's opinion, which was much to the ism
effect with that of lord Sommers.]

Mr. Hargrave, I don't however msaa ti
extend the doctrine as far as lord Soomers sii
sir G. Treby extend it. They seem to nslit
no difference between a conquered oomriifi
and a colony without a government.

Lord Mansfield. You mistake it, the ehailV
being totally void, they could have no sortrf
government but that which the ooloaies ihit
are called provinces have. They are govcraii
not by any charter, not as proprietory gevsia*
nients are by any grant or patent, but hf ibi
king's commission, and instructions added tl
I hat commission ; and in procem of timetbtf
had an assembly given them by the kingV
commis«ion, but had no charter. The IwojiV
tiemen meant the charter was vaGated|.and tf
he gave a new charter it miial bo getamidljf
the Jung's osmmiasion.

Cimpbrll V. f/«ff.

. Tlitre Bre Mill more recent
jiia mp«rt In our Arncriunposseisioiis.
■ 1709 tb« Eiif^lisli coniiuereil (lie FfEDL-li
' lleislinil of Si. Christopher's; aiid
r ifr Gdwlril Nnrlhcy, then allorney
I, M a rrference lo him by ihe pi'ivy
ipidion, thai the
[hi by Icllrre pnletit im|iasc b iluly
■ exporttd from the conquered [larl,
n li« gave was, " ihu Ihe i]iieen
tcfO||fative GOuM make Uvn in bind
'■iOFil by MrKjiiest «nd all thnt inhnhit
Aecurdini^y a duly uf four ami a
a cm. was imiimeU by the queen, thni
t it)ty as WB« pnyaUe io the
k part nt' (he island under an aut of as-
Thii iluty on the French part was
1 till Ihe peace of UtrechI, when the
a of Ihe whule iahiid was confirmed
1 Britain, anon after which aii act of
i pBised exlendinc this duty of
J* half per cent, lo the French part of

Bol tbne is a more recent case. In the
B of ihe late king the aa^i^iiibly of Jnraajca
^~'d tlie Bcual ijrnnlB ; and this K>Te oc-
> the crown's consulting sir Clement
d Ibe lale lord llardwicke, then at-
d Mlicitor eenerBl, to know, whether
f bad out a right by his iirerogBtire lo
, I laxea Jti that island. Their answer
n, " Thai if Jamaica was still to be con«i-
1 conquered island, the liiog bad such
'11 if it was to be considered in the
< r -Mill Ihe other colonies, no tax could
11 Ibe inhabitanls, but by the as-
1 1'.' island or by act of parliament."
> 'K1 lourge Bgminsl these aulhuril let,
■ ! in (irral Britain, in Ireland, and such of
I ir iM>luDin as were originally settled by emi-
rninia frum ihisoonnlry, Ibe le^islaliTe [mwer
inaleatrUBledtuUiecmwn. It might perhaps
-< iMf* codformable lo Ihe general nature of
I'l- couatitution, and It mi){bt be more coD*e-
' -nt. il certainly would be mare uniform, if
■"r tinttta of tlie king's preroijatiie were as
(MCHiBMiribed in a conquered country as in ibe
■sla ef Great Britain. But the queatinn tn
bt^euled here ia iiol, what would l>e the best
taawitiilifin, but what Ihe conslitulion actually
h; nut what bounds ought lo be set to the
lodg'a (imoiCBliTe, but what ila liinita really
arc. If the rvyal prerogalire ii in tliia iustanre
^v»[>er, iocoareiiienl, and dailgeraos, it is the
^inCM of Ihe British parliament to correct
<-;4 rafonn it, and lu reduce it wiibin Darrower
'- -adai but Ihe buainesa of thia court ia of
!■ miliar kind.

l^onl Mniufield. You did tint state ilrBil-
> I'd Norihcy's opinion follv 1 his opinion, 1
•■ I md il, >< Ifaia : ■• The law extended ori-
. <*II* la nidi part of 8t. Christopher's as be-
^ to Ibe cfown of England. Wheo thai
" waa made, by virtue of that Inw ibey
•Id nM r«l«e Ibe duty upon Ihe conquered
\ yat iMr majeaty niuy if she lo pleases
'U mi 01' finglaiul direct aud

^upsn I

A. D. m*. rso*

command the like duly lo be lef ied ti|»n fnnih
lobe eicportad I'mm ihe conquered pari, ami
such comioand)! are law there, hpr majeaty
bj' prer^Blive being enabled lo make laws tn
bind |ilnce> obtaineil by conquest, and alt that
iliall inhiibit IherHo."

Mr. Har/iravf, If, my lord, I have suc-
ceeded in ebtahlishiiig the Hml poitft, thai (fa«
kio^ hna a righl hy prerogatiiw to tax a «m-
i|uered cuunlrj, the only remaintrtg vaniidenl-
liun is, whether at tlie lime of iin|Ki«ing the
dutj of fonr and a half per cent. Ihe ialanil of
Grenada answered lo that description. Ii is
stilled in the apecial irerdid, thai the island of
Grenada was conquered during (be late war ;
and there ianothingin the terms of capitnlstion
which giies a right to the inhuhiianis of thai
islund to the laviB of England. By Ihe Sifa and
[ith articles the inhabiiRnta lequire, ttiat they
should preserve their ciril government, their
laws and ordinances with reapect lo Ibe admi-
nislralion of justice, and that there should be
regiiloljons made between the governor* of liis
Briianuic majesty and them for ihsi purpose;
and in ca«e at the pence the island should be
ceded lo Ihe bingof Cireat Itriiam, H aliouMbe
alloived lo the inhabitants lo preserve Iheir own
form of government or accept tliat of St. Chria-
topher's. This was what was demanded un the
part of the island, but the demand was niA
complied with. The answer was, that liiey
would become British snlneets, but should lie
conlinued to be governed by their present law*
till liis majesiy'a pleasure should be known.
Ho that tlie articles of capitulation neilber ati-
iiulate a constitution nor lawa for the island;
but leave Ibe tovbI prerogative ai free and un-
restrained, as it there had been a aohmissinn
without any terms. But the great difficulty in
the cause arises from the lirst proclamaliuo, by
which a prorincial legislature and Ihe laws of
England ere promised to the island of Grenada,
and the commission lo governor Melville, by
which be is auLliorixed lo carry thai promiae
into effect. It is saiil. that these iustrumenta
were an immediate gift of llie Briliab consti-
tution and liberties, and of Ibe English laws ;
and being antecedent to Ihe letters patent tor
imposing the duly of four and a half [ler cent,
were a waiverofthe prerogative of taiing. Il
is true, ihal an admin tslrDtitiu of ju<itice accord-
ing l» Ihe laws of England was lo lake effect
Immedialelv, but both Ibe proclamation and
governor Iflclville's commission suspend the
calling of a general assembly, till the cii-
eumstances of the island slioutd admit of a
clianile so important. It was left entirely to
the discretion of the trovernor and liis «nnn<il
in decide, when it should be proper lo eaeeuta
that part of his cammla^inn : anil in fact it was
not executed, an aasrinbly was nut called, till
afler imposing the duty. Before tlie first pro-
clamation, the king was the lawgiver of the
island; but he thought fit to promise a tegis-
lalure more conformable to the general frame
ul' uiir govenimeul, and he comiiiissions hi«
KoverDOr to lUlfil thu promise when ibe slate

303]

15 GEORGE III. The Caunfthe Island ijf Grenada— [304

of ibe iBltnd should permit. Till Ifaat timp
came, 1 aubpiit, tlialilie prerogative cnolmupil.
1 aubmil, lh>t (he kin^^'B Icgislalire powen iliil
notcette till llie UMinbl]' tn nhicb he (ira.
niied to IraDafer them was nailed. At a sea-
annable lime a aem IrKi^'^'i'^ |)Ower nat to Im
constituted : Luttill ibal lime arrived, the old
one, howerer arbitrary, remaiueil ; and it wu
not the king'a intention tu diTestliimieH'of liit
prero^tire ■ooiier. Tu my otherwise ii sup-
posing, that the kin^ mniDl to leaie the island
Ibr a lime without any N'Eiklalure, and to quil
bii legislalire poners befiire the aweinbly, in
which he proioised tu vest Ibeni, was calkci

Lord Manifitld. There are three inslni-
■nenta. There is the iiTuclamalii)n, ihesurvev
ip March, and the conimisBioii to the governor,

nir. Harfrevt. I did not mention ibe ae-
COnd proclainaliOD, because it Keeraa merely tu
concern the surrey of the inland, and the maii-
DCT olgraiitinK crown laads to new settlers.

Lord Manifield. Il recites ibe terms of the
proc lama lion, auil invites selllers upoa those

. ftlr. Eargra-ee. But then 1 answer, it was
not a pan of those terms lo ivtive the kini;'s
prerogalive of making lans, till a uev legisla-
Inre was constituted under governor Melville's
commissioD. k promise waa made to call an
. uaembly (vhen the circumsiances of Ibe island
■hould nerrail ; and il would have been dis-

Ceful not to have performed Uiat promise,
it was performed. All I contend for is,
thai till actually executed, and till the legis-
lature tvas eslablisbed by caJliog an assembly
jo order to succeed lo the legislative power of
the crown, the kini;'s prerogative remsined the
uroe as before. Notbing further occurs to
me; and I am the less unwilling to trust to
the few observations I have made in the latter
part of the cause, because it iras ilie priiici[ial
subject of tbe former argument.

Mr. Macdonald in reply. My Inrd, as 1 have
alrdaily troubled your Inrdahiptoa mucb greater
length ihan 1 am warranted in duing, and as 1
conceive 1 have nlrearty anticipated niusl of ihe
arguments and inttancea inentioned by Mr.
Hsrgrave, I slmM be very short bj way of
reply. — I shall only bring back In your lord-
■hifis recollection, that I endeavnured to ei-

Iilain lo the best of my uuderstanding, Ihat the
ing caoaot extend hia prerogative power of
imposin^T laxtsbejond llie lime that a country
becomra a regular settled part of the slate — by
Ihe ti^rms of pruclamaliun ia question, he ex- ,
pressly irattKfers to Ibe island of Grenada, tbe
taws of Eoglsud. And lo impose a lax H.iiliout
the concurrence of any other body, is to retract
Ihal gill : but Mr. llari;rate bus said there are
precedeuts, ihongh not very strong, which
■hew tbe kin^ has such power of excrciiiog a
prerogative ot taxation over a conquered coun-
try. One he mentions in Jnniea Ibe Ist's lime,
■ud at tbe same lime he aayn he is ashamed to
neotion uottaer id Junea ifac 9d. JanKi ifaa

first governed all his dominions according (o
hi] own idin of prei'ogaiive, conceiving this
empire hi be made upolso many small parcels,
looking up III him fur suppori, atid when he
drew a cumparisou of hiisubjects nmlersiandii^
with bis own, be held that Ibey were in pro-
piirliiQ to his, as a platter is In the sun in Ihe
lirmnment, or as Ibt: hraH nails in the pommel
of a saddle to ibe slars in Die heavens.— Hy
lord, it is most iodispulably true in the general
terms in which the proposition is laiii down,
Ibal the king may tax a conquered country. 1
have admilird that he niay iluiing the war, ImI
then and ilii'ii only, aodl bnielit^ard no answer
to Ibe avgumrnts by which I eimfioed it tit that
periiMl ; ul least, though tlie kiug inigbl have
a power l<i lay vn u tax betiire the proclniaalion,
sosoonasthalpmclamaliua WHS made, be Mailed
that rijjlit, nud by virtue of it allowed lliein a
' cuosliuilioii, wblcb was eslHlilishcd uuuipletelj'
I the year afirr. aiid 1 nidimil, lltliat proclama-
, lion is uver-rnlud, il will be worse iban if it Inid
ni-ver oxisied. It is h-mA with rrsnect lo tlio
charters of Nutr Kn^lund, and utber plitres
at ihe time wlien they "ere resumed into ibe
king's hands, thai grtf Jt lawyers soon afier the
Hevolution gave it an Ibeir opinions, that those
placi's nrre considered as conquered couulries,
and ill ibe same situation as if those charters
bad never exisieil: 1 conceive no preceilcnt
whatsoever can warrant such opinion, hut as la
all tbe cases quoted by Sir. llar^rave aud mc,
ibey are very loose, and neither can avail our-
selves very much of iheio ; but still with re-
sped to those opinions, they talk of a coiiqueredi
country without saying what it is oris nut, aud
I hope i have shewn lo your lordship lltnt it
can only be a country, held by tbe awoid

Iioril Martffietd. Wbat he says of the
American insisoovs is this, there are cuii-
qnered countries amongst them — New York
in iwrliciilar was cotiijiiered from the Dutch,
they have tlieir whole couslitulion from Ihe
cron n— ibat is what he says, but alwaya that
argument xupposes Ibis power of giving a con-
sliiulion exeroixed by the king is nut exclusive
of parliament, there ciiunnt exist any |Hnver io
Ihe kiugexclusive of parliament.

Mr. Macdonald. Mr. Hnrgrave at llie same
time says the king's jiroclamation is nut only
execulnry, but he has ibe iniermediaie power
of imuosiug taxes until llie sssembly can sil — •
now if Ibat proclamation was nol capable nf
giving these people a (»inslilulion, which il
does inasniuch aa it givc.'i them the laws of
England lo all eternity, they must remnia aa
a conquered country, and the crown has not
the power of ihnng that act which can give
them tbe liencfit ol a If gihinturc which every
other colony has; if ibis proclamation docs Dot
give it', wbai is the consequence of that — wliat
your lordship says undoubtedly luu^l be true—
Ibe parliament can never be excludeil, but then
there will be a double legisUlive authority over
thii country, ud pariiamcot nay do one way,

Campbell v. Hall.

W^aag uiother, inil Ihey will be subjecl to
' ""(iof a double govern irienl.

t.W\llei. IsoDlittUecase with thPtn
— wbeo ■ legulaliTe piiwer is c<*en then
V >re*ab{Mi lo this parlitmeDt hTho,
Ir. Maei)tmald. True, roy lord, but I mean
Arreix adoDblesDiierioT (^nr eminent orerthetn:
« u) Iheir own lubontiniite lei^alatiire, I dun'l
i be so Tery mnterial >■ lo be
•i with the otbers. namely. iIie km£ alnne,
■intlj' wilh bit parliament,' and mui'.li of the
'-f of double and conaenaenlly
will Biilt remain.— I

i fMi&meni having ii, there
* of thit. With rei^d to the opinions of
ra and ait George Treby, they were
b on cirouiuiiincea an very particular that
nliot iKDtibly apply io ibis case, in
D avch circumaiaiices are to be found ;
oilb r««pect toair Edward Northey, I must
fcmind y»ur lordship thai bespenka ot*aeoun-
Iry bpld by force of arms, and his opinion was
lul il inii;ht then be subject to the king'* pre-
NftliTp Duly ; hut when it becomes a colony,
lbtii*,aaaoon aslbelei^lBInre waseslablishnl,
ikai preroffatire ii not to be enforced.

If the acaie of ihc purliatncnl was wanting,
litm waa a bit! brouLrbt in, in March 1749,
ia iirdm- tu make tke kiDi;'s order law in the
toloiiie", That ««« peliijotied against by every
rar ortbecoloniM, and thrown out.

The words of the Declaratory Act of 0 of
'•i-u. 3, 6. IS, are aa slronif' aa posaibty words
III b4-. derlartng the power if l^slslinn and
. ulinn over Ihe coluiiies to be in the kins: and
irliamenl, wiihiiut any leferenne to the kintt's
■I* prcnit(atJ*e. I need not ^ over Ihe ground
.-iiii, for braudc lite crude iaeM which 1 have
iinitlEil In the Court, the learned ((enlleman
■ .1. «f«al before me hnB aufficiently answered
cry objeclinn In the fint argument 1 where-
■-»T iriBiing more to bis ingenuity and Ipnrn-
: ihM my own, | hcipc the judgment of the
' >un willbeforthe plainllfT.

l.or4 Mani/fU. If neither aide desire a fiir-
rr aicunirnt, I am ready lotfifc my opinion.
Mr. Hargratr. ny loni, I anl desired Io
i'"t\ I l(irlb#r nr^umenf, and when I con-

'ti inibiliiy, I hope yuar lordship

II iiher ariinment.

t-.nald, I *m instructed to repre-
! lordstiip thai this is a rivenue
.' an imnicliale dcierminalioM, and
.1 -.' sbnuld be glad of the judgment
'. Ill so<ni na possible.
'...aifidd. It has been argued very

Mi- lUrgravt- M v lord, it is the wish of
Hi. Atunwy (leneral to have an opportunity
«f srvviNiir Ii. tbe i-Jiuse ia of great importance,
^Ibrrr '• iireat nofclly in it.

I -WfcU. I haressid, if ellber side
' r nrifument I will not rcl'ise it.

* B not pMitiva whether

A. D. 1774-.

[306

Mr. Altoraey General autborixed me to say ihat
be de.sired another argument. But I linder-
sland from him in conversation, that he meant
lu ar^ue il Ihe Ihird time, which is one reason
for luy preseni applicBiioi).

Lord Matu)ield. Let it stand onrfor a ibird
argument.

Oil Monday ibe 6ili of June It was moted
for farther arifument. Stood over till the
Tuesday se'enntijbt.

Tuaday, June li.

It was entrealed it might stand orcf till

l»rd Manifictd. — I don't see any inconve-
nience in going over lill next term. Il is your
own delay. It ia absotulely impouiblelogive
judgment ihis term. Suppose vte were all
agreed, many mallcra are thrown out in argu-
nnent which are not absolutely neceasary in the
dHciaioit, bui nl' wliich il would be necesaary to
Ibe Court to take notjoe.

What thu value oi the French duties may
be, I don't know : il does not appeal' in ihe
cane. Suppose Ihe Court should be against the
impuiiilioo of ihuse duties which are impoced
in lieu of Ibe French, ibere would arise «
■question conceraiuf,' those duties.

Can yuu have auv doubt upou Ihe most ma-
lerial argument of nil f

The first queslion made in the second ai^u-
meni by Mr. Mac-lonald, I think, is one of ibe
greatest conitituiiotiiil uueslioaa that, perhaps,
ever came before Ibis Court. Aa my brollier
Aston is absent, I wish, principally upon (hnt
BCCDUUt. thai il may stand over. It is Impos-
sible it should ever ba passed over in ailence.

Mr. Campbell moved that judgment might
be given ujion Ibe former argumeoi, but lord
Mansfitild reminded him that be cnuld gel co
fsrlhpr, because il muai necessarily come into
the Exchequer ; and, even if thai were not
the case, jndgment could not have been given
in the term, holb on the account of the absence
of lUr. Justice Aston, and as tbe last day would
be a Wedne<day.

JiovrmhcrJ, 17T4.

Tlie Grenada cause came on for the tbiril
argument by Mr. Attorney General nn Ihe part
of the crown, and Mr. Serjeant Glynn for tb*
pisinliff.

Mr. Serjeant G/ynn.— This case, one of the
most inipnrlant in lit principles, and In the cnn-
sequences dependent on the decision, that was
ever argued, comes before Ihet'oort on n special
verdict, slating that tbe island of Grenada wai
' the possession of ibe rreni-ii king, and cuu-

laiidi^, to the subjects of Great Ilritain only, by
Ibe aniclcfi of eapilulalion in 1703.

I'ruclamation, reoiling llie benefili from ■
regular colonization : promising thai UMID-

307]

15 GEORGE III. The Case of the Idand of Grenada^ [808

blifs shall be called, iritb power to make laws:
in the mean while the subjectt to coofide they
shall be governed by the laws of Englaod.

ProFision maile of le^slation to be executed
by the ^orernor 9tb of May, 1764. Patent to
the governor to call an assembly as soon as
convenience shall admit.

Proclamation COth of Juhr 1764, for levying
an impost of four «nd a half per cent.

Stated — assembly called about the end of the
year 1765.

Stale of eastern of the other islands. The
lm|ioft by assembly.

State of St. Christopher'a, only where there
Is a difference of collection ; part having been
subject to the king of France.

They find the impost levied on the plaintiff
by the defendant ; and that it is upon the im-
post so levied this action is brought. And on
the whole matter, if the money legaltjr col-
lected, then thev find for the defendant ; if not,
then they find ror the plaintiff.

The question is — whether the king has a
power, without acts of assembly or parlia-
mentary regulation, to impose any tax upon
the inhabitants of the island of Grenada P

The provision for peopling the island, the
commission to governor Melville for the well
governing of the bland, are both material

I cannot help taking notice of the principle,
on which the claim of the king is founded, to
the raising of this imposition, which is, that
the king bas a right to exercise a despotic
power OTer a conquered country, annexed to
the dominion of Great Britain ; and that this
power is legally, permanenti v and uncontrola-
bly in him. 1 think, though not necessary to
this decision, it will throw light upon many
points contained in it.

If it could be shewn that the law had asserted
thu, and no contrary decisions had denied it ;
that the coarse of history proved it ; that it
had ever been asserted ; that there were no
times in which the exercise of it had been db-
puted, or, if there were, that it had never been
judicially contradicted ; and that the. king had
•Iways exercised it : however uoagreeiug with
oor principles it might appear, and however
dangerous to the constitution that the king
should have independent dominion ; yet, if it
"were so upon the authorities as stated, J should
bold it a ?ery formidable argament. But I
hold that the opinions have been silent ; that
there have been no decisions ; that the course
of our history has no vestiges of it ; that it
never has been exercised ; and that every hint
of it has been rejected with dbgust.

That of Calvin was a question, whether a
post-natus of Scotland was a natural bom sub-
ject of the king of England, after the Union ;
it was held he was, because the centre of unity
was in the person of the king. No necessity
of entering into the discussion whether it be
lord Coke's opinion, or of the judges.

The general definition is— of a kinsf of a con-
quered people, and a proposition b laid down
geneiftlly.

'< If the Idng make a conquest of a Chris-
tian country, Sieir laws remain till he gives
them others ; but, if he makes a conqoest of
an infidel country ..they are presumed m have
no laws; he may give them what law be
pleases; but guided by natural justice and
equity." I quote tbb not for the sake of any
thing but the use I shall make of it by and by,
shewing, that a subsequent antbority went to
that only : and thb was an idea whksh was not
received by your lordship the last term, bat
rnected with a declaration, that for the honoor
of lord Coke it ought not to be spoken of ; at
I hope it never will.

He is speaking of a king, not particulariy of
the kin^ of this country ; if it were to be un-
derstood to belong to any king, it would be
evidently wrong as to Poland, or as to the then
constitution of Sweden. If a conquest be Daade
by a king of Poland by a Polish army, it b
nuule not to the king personally, but to -tha
king and senate of Poland ; and so of Swedea
at that time.

A Tery respectable anther was cited to year
lordship, by Mr. MacdonaM, who very ably,
argued from hb book, that all acqubitioos by
conquest are made for the state ; and are there*
Aire at the dbposal of thoae who make themv
that b to say, the state according to its several
constitutions, and different distributions of le-
gislative power.

In agreement with this author, who stales
the doctrine in a decisive manner, I think it
clear that the conquest made by the state is lor
the benefit of the state. Execution and admi*
nistration of all bws in England b in tha
crown ; the power of making bws, according
to the constitution of the state which be go-
verns here, is in the crown with the two otner
parts of the legislature. When lord Coke gives
bis opinion, he most hav6 taken it from writers
of general law, and those for the most part of
absolute monarchies; and he took tlie word
* king ' as a general word, which, in their
sense of it,ooropreliend8 the whole constitution.

Objected, that lord Coke's authority must be
taken otherwise, because it has been nnder-
stood in other cases to belong to the sole power
of the king ; and it was taken on this autbo«
rity, tbe king had the right uf making inde-
pendant laws over a conquered country ; and
that a king was in the same state even as to a
colony, unless otherwise provided by charter.

It 18 said that in P. W. the same point ^as
determined. But P* J^V., instead of speaking
of the bare power of the king, spoke of tha
power of a conqneror.

Tble concession said to be made by sir B-
Shower; and that it was of consequence to
them to have denied the position, if capable of
being denied ; was in the case uf an island not
inhabited when first passed by patent ; ao if a
conquest gave any right, he said it must be
over the persons of the conquered people, oot
over the country.

Upon a state of the history of Jamaica, sop-
posibOB of (act being mistakeoi the aiigameiit

WE

Campbell V. Hall.

('■!lt. TliRt pmiiioD, M JoBily
ia Calvin'i caie, is tbe point at-

Thr opininn conleoded to be settled in tliai

I! or Blincliaril and GMy, is IbuDited qd
lord Uoke'iUkiii^ them, wiilinut civil pn-
, lo be K<i*erneil arbitrnrily, accnrdiiti; *°
triauun nf Die kmg, mi he should lliink
ty and juitice ; ir the concession be any
I il is lo be appUed lo ihtt pnint ; wliidi
11 HOI to be nanicid in a court of Jaiticc.
I M the [H-incipal ffrnund sFo c*K wliich,
I iia inieciiracy, ^Ined so lillle weight
I >our litrdahip upon tlie last arguLiieal ; \t
Ikera hail been others, ilie induilry ol' Ihe
Inmcd ^fotletuen who msde Ihe best nr the
IM v^menl for the del'endant, noiild hate
pnidoced ihcin. Taking: ''>e expression from
% public writer, 1 a|>prel)eni] my lord Coke
HMnt niertly to slate the principle, not applied
la taj particular country ; and then the king,
when atiplieil In Englanit, means not the king
icMy, but IliF king and psrliamenl. Il is the
MM Dstural and rational construction, and is
neb, I think, as llie argument admits.

I Ihink it cin never escape your lorJship,
Uiu my lord Coke, writing wilhont precedents
»r luttiiirify, roast necessarily reler to the
"'iHm "t [mblio law. Mr. BlacUonald has well
tkcrred, ibo«e wrilera generally used the itord
fn^cron'r king asan arbilrary power includ-
.■ tbe nhole. It lord Coke Is supposed lo
' -It laid down the point, tl must bare been
'u Ibe httlory of his country, and thai the
. ••x Iroffl the earliest time exercised this pre-
;iit»e. ThoDgh I should not have laid great
Fn npoa Kuthuriliea deduced from dark and
iritlnl timet; nor from uur Henrys, or eren
'r Edwards, 1u prote, from ihe exercise of aa

■ ■- M power, liie legabty of the claim ; (when
' '1 m ihit reign, wlien llie (;reat charter was

i^, Ibrre wvre so many TJtilatlooi of it, and
many afterwards, anj so tnany coiilirma-
tn mlirrwiM^ not necesiary.) Though for

■ " rraaoni. I cannot allow moeh weight lo
i'l ia ehiiiii of ■ prerogative In those reigns,

' -e i( na instance ol' an ahsulule authority by

iiii-r a coni[Uered iwuntrv. I don't

lip Ihe beoelit of what bis been bo

:ivi;oed, wilh respect lo Ihe Jnlro-

' I i3»s into Ireland by Ihe charier;

>, • iKiiik Mr. Mardonald lias produced an

4>iiiKui in proof, that the laws of EngUnd

■ I ■ird before that linie, as it refers in Ibem.

I tlhak, lliererore, an Englinh conslitulioo

I paaat-d ; and In general that it is part of

11' -tuly of the kiag lo proTide, that the Bng-

I] conatilution shall be exeroised every whtre
' " ail tbe aahjecls of Hnghind. however eon-

•tMl, bowevtr acijuirvd, or wherever Ih^r
iL^atiM.

tlw power of promulgation nf laws, iaau lug
I iawt, tbe making preparalions and proper

.tilawna, tor Ihe iDlroduelion and esecatton
' i!>ii« l>w« in a cnmilry a<i talely receiving

■ -m, ia tbe prculisi' prerogalire. Though
■ni* aaanlecedcm titltby birth or lilua-

A. D. I??*.

[310

tion, it can only be exercised hy means of tb«
trust rtposed ia llie cmwn, ao'as lohe applied
10 the benelil of llie public.

The enquiry is nut what is ex|iedieiil for the
peculiar good of mankind »o much as what is
necessarv or capable of beiu^ admitted. Wliere
new laws hare been ID lie iniruduced, or -AA
ones lo he allered, it b»* always been by llie
act of the supreme legislalioa upenly, either
here or over the stales lo Ireland. If ihe pro-
viding for the exeriUion of au aniient right b«
called legislation, we will readily allow this le-

S'slnllon In liave always exitited in the king.
lit it is necessary, in order to prove Ihe au-
Iborily claimed ia the present case, lo sheir
thai the king has abrogated, allrred or intro-
duced laws. This has tiol been dune, ibe king
has never exercised such au aulhuniy ; ana
the very expression of au idea of such a right
has been rejrcleil with resenlment and iudigua-
lionas against the cnnstiiuiiou.

Audio say, if allowed, ihai the king legisla-
lively inlroduced law* in Ireland, hy providing
for liieir being received aud eseculed, is lu say
thai be uerformeil this executive trust; which
we aH allow ; and if this be meant by the l^ia-
lalion ascribed lo him, il is a salutary and ue- "^
cestary legislalion. I know if it be, il hanily
will be 10 inlerpreleit as belonging to that

Wilh rpyard lo Wales, (I presome many
other instances ivill nut he found of cnn<|uered
countries,) the Elalutc has always been consi-
dered as an act uf parliameui.

Tbe peculiar nutborily given lo king Edward,
which could have been by no meaua pecessary,
if there bad been a legislative power aluoluieiy
and iudependenlly in him (and which puwer
was never exerciied, and was lield by the judges
so ill ai;reeing with the conslitulioo, as to ba
oonlinedlo Ihe person of king Edwafd 1.) gives \

iforaslrong inference thai the regulalion

nut originally and properly in hiiu, as of
wn iudrpcndant right, buiderivaiively from
Ihe pnrliament ; and that in such a manner m
at least conlined tu himself, and nul ex-
lend lo his successors.

The king would never have furnishad such

I arguinenl agaihsl the exercise of legislalivo
Buihnriiy, had iliat power then resided in him.

All tbecBseKi huve lieen the ohjecia of parlia-
nteniary regulations. It' he had undrrslood it
to be of his right in give laws over those coun-
tries arbilrarily, and parliament bad reco^niseU
:his claim ; the power of making and altering.
tlie power of *brngalin<.' woidd have breu in
him, and we shouM not have had Ihe interpo-
aitinu of parliament.

From the aulbor cileil by Vlt. Macdonahl, I

Tlial all cmiquesls are made for Ihe benefit
of Ihe coniinering stale; and wherever llie
people Br« com|iused and pay allegianre, in-
•lead of constrained submission, then ibey are
subjecu ; and owe obedience to the laws urihu
conijuering ilate, aud hold their prot>ciiy frau^
I hem.

Sll]

15 G£ORGE III. The Case rfthe Island tf Grenada^ [312

When this conquest was madef from that
bonr when the kiu^*ri right was recognized and
a rom|)(»<iiiion made, it was for the benefit of
the i^euple of this country. Here particularly,
its conquest beint;^ made with a Ticw lo coloni-
sation, it is establisheil bv the best authority,
that of lord VHUi^han, on the question, whether
a nuturalizatiou in Ireland made a iDan a na-
tural-txtrn bubject of Great Britain ?

Lord Vnughan — A conquest is not solely
for ihebeot'fit of tlie conqueror, but of the sub*
jecis ; and those who come to reside there have
a ri^ht to acquire |>ro|)ertv ; lands by purchase ;
•—and be proierted in all those particulars, by
tlie laws of 1 heir mother country.

The inhabitauts then of Grenada, are the
objects of all those urovisions.

They may a«-quire property, with the right
of residence anil purchase ; and hare the otoer
rights or British subjects.

As to expcdif oce ur value, we are not speak-

ing u> the equality but the legalitv ; and what
over p4»wer has taken a part has

the nine

claim to half or the whole.

The authority here contended fbrb inoon-
■istent with that right which Mr. Campbell
had as a resident, if nothing else was afecWi
by it.

It will be incumbent, by new trgnmenta, to
prove a power in the crown of disposal of these
acquisitions, without the coucnrrence of the
constitution.

Will this right bear the examination of the
laws of England ?

Ordinances of necessity, on instant emer-i
gencies, provisions for the administration of
constitutional rights — I shall not presume to
•ay how fur these may be maintained: but
they must expire with that necessity, and be
occasional and temporary only.

In the present case, no pretence of a ne-
cessity.

A conquest of the people, and not of the
lands, niusit mean a power most extensively
taken in the times of barbarism, but qualified
in these times.

Both in the case of the conquered and con-
quering people, the laws of the general govern-
ment are upon the conquest conveyed thither,
as a common right of all the subjects : but they
rejiaire to be actually carried into effect, main-
tained and executed by that power in which the
execution of the laws is lodged, which, with us,
is the king. The title is there before the en-
joyment; i-'hen the king has executed that
trust, then is the enjoyment.

The colonies cannot have the power of
enforcinof those laws: they have the right,
though the trust b reposed in the king to ef-
fectuate them.

The king has given assurance that they shall
be protected in all their rights, honours and
possessions, and the free exercise of the Roman
Catholic religion — this to the conquered ; shall
the conquerors be in a worse state ?

The king has pro? ided, that, as immutable
laws may become inconrenient, therefore there

shall be a local one, subject to alteration bj
their own legislature.

A distinction is taken between Grenada and
the other Inlands; I answer, the grant is not
a matter of grace and favour^ bat tne discharge
of a trust. If it be a gift, it is not revocaUey
but an irrevocable ri^ht; what distinction then
is there between this and the other ialands^
whose rights the king has recognized by re-
ceiving the imposts as a benevolence?

What power antecedent to the patent bad
existed in the king, is annihilated then. Even
considering .them as subject before to the sole
law of the conqueror, and iH)t as subject to the
legislative power of the state, the king baa
waived the power of taxation if it wars ad-
mitted he had it before, by granting them a«-
semblies to tax themselves.

The construction cannot be that the inha-
bitants are not to reap the benefit till a futurr
time : this is so inconsistent with the end, with
the conBtructkm in which the grants of the
king are always received, and the benefit de»
signed, that it will find no weight with your
loraship.

Takmg it by way of aigument that the con*
quest has annihilated their ancient law, their
law cannot hate been annihilated and none
given them m their plaee.

If their ancient oonatitution is gone, the laws
of K"gl*"f* by their proper force introduce
themselves.

It ii A fbtnre grant, it ii said-r-wben the
power ia given them to call assemUiee, thej
htf e a provision for a legialature : 1 don't nseat
to derogate from the supreme legislature.

The assembly is to be called when circum*
stances will admit and convenience shall re-
qnire : so it is here ; hot yet it is the unalter*
able privilege of this country.

The people who should come, in confidence
of the promise of the rights of British suhjectii
wtmld, according to this construction, come, and
find themselves without one of the most re-
markable of those rights, and that which securet
all the rest. They would, on coming to reaidei
find themselves sul^ect to an arbitrary dis-
posal of their property, and might have iIm
whole taken away without their own consent.

My lord, on the whole of the case I presume,
whetner as a conquered people ur as colonies,
they had a right to tax themselves, and weri
not subject to imposts under any claim of pre-
rogative, without their own consent.

Secondly, If they had been subject to taxei
by iNrerogative, that the king, by bis procla*
mation, has concluded himself from this right

Mr. Thurlov (Attorney General). I havi
erer looked on this aa one necessary ground ol
argument to a doubtful question, that we shook
see and attend to the nature of the claim, iti
fitness and expediency ; and not confound tin
idea of it by substituting, in its place, some-
thing of a very different nature, and auppoeing
that to be the right whiob is inaiited on mid in^
tended to be pro? ed.

CampidlvHuU.

ad for an ahiAlule in-

puwer in liis iDBJeBly. I

1 ihat tiica lit iiuihoriti«^. or u( lUe Ju-

; proTcwiuiiiliiiii I cuulil bxve eoaagr<l

ithv twk (il'»ii|>(iortin^ it. Nur snnnlrl

- pUCF, ruuuK IrHia «courlofj>Mii.t!.
utUkiDU Uidtlvr lu^ (jroiyid,^ idckli
L Ihu bis iQ^CHijr. I'l mi BtUcle ol' exe-
'iB* >n dinliurity, l«pisl<Ui>e iu
mbordiuatt Ut (lie Buprcme le*
lit ol iui|iQsiii^ lam, aaci im-
: odicra tu iiDiwse ihem.
sliiU relet la corporalions in £ng-
': I'l iBT«Meil *Uh (>o»eri lo praviJe laws uter
.:'. of itie iJoniinioni* at ihs king of Eujflaoil,
• m ivhicli tlunr were ilUtnut. btuI not nulivps
I ^iMbiunls, I abill tliink myself eiitilleJ to
rwiend ilial a power wbicli be cau ikkjEralc be
riH cmrci»e iu bit owu iieraanal aulborily.

A nMib'id has been ItJiea irbicli requires the
r^ hi III be coiuidered in r>lber ■ dilTiereat view,
ij.<l exauiineil in ■ iliflert-at tnoile.
I ibink ii bat beea endeavoured In be iasi-
i>i«l, or rallier dtdaieij, ihat in llie artii^le
>! ru(»|Ut!it ibu Uvr* of Bni^laitd inslvolly lake
>lMain lbs cmN|iured counlrv. and theuun-
[■iWH prople varrv ibe Eii^lisli laws wiib
•■B. Al lb« aauiH limr tUai ibia puiul baf
Im M«leadc(l. it bai bfeu aigueJ Ihal the
Uifi by kit kxecmite pov

; Mua to esiablisb

as beinir

•Nk lubonliiiatr with r^rd to tlie dominions
MiefiJ U> lb' kiiiK. a« wnb regard lo tbe aiale
HjinBMicau of (lie lUle herr), (be king re-
Wblra lb* farerunieai, aud tequirei impoila
mm i1m oovolrj/, in aucb manner as he seei

ilul it M Mr4 " oiil^ particular necettjty jus-
:n ihM cldim, and it inuu be nnly uccaakinal
'aJ MntMirBi}' : <* ben the loTereign itutboriiy
Msbuoil it rxiKilienl lo yife laws fnr pa)li-
(A* local nMeiMiiy, errry iudividual cairies
■ak b>ni >|l Ibv Uwa el' &i||Uuil ." tbai is. il '
m; f(r^u«ill« bapiwo, laws siilivprsiie ol ilie '
'•1 i{iim. TUf imiividual Ibeo will bave a '
• cr drwnl lt> thr tiUtereien. I

I hate the autboriiv ut* Ibe same celelirsleil
...tiuT (iioaled no lb> uibrr aide) ibat (here i* i
rf<lifa*«»ra l>eltTeei) acoiiiitry cunquercd by
iW arsM ol' anotber, and diacnrcrtU. Vat, a, i
S»~flU. I

ilwaw iiUtcd in ibe lail arKumenl, in nrder '
* Am Nlwrevrr a i-uunlry ia e.tnqiipreil il lie- i
"ii»» (wrt (if lbs c<>iHju«rin|[ people, ami their )
'• are ititrodiiDrd wiib (he cuuqueal> (bat in
-i>ui'i COM Itata poial had been decided. The
,>^IMa iitvr* wa>. wbetbar (be dntnioiau of
I MeoDqvmif or utily lb» realm in included.
1 Tkatawaof Ibe couquered remain (ill altered.
I IWy ti><v liem acciiatimied tn them aa model
1 <la||«lBtlnv ■oil diiposing jirnperly. They
I *>■■ M Mkti: if tliere be belter, aud more
. . they are aatiaO«d
litry kaie been accuatgna^

n all Dcca-
ejijuy under (Item all the btesKinga
and uainfur(a Ibey have enjoyed.

The i]iieslion is, wbelher by ibe laiaa of
Great Britain, which are Ibe only rule here^
tbe kin|T bna beeu adiised jnsdy, and acied
nilliio the rouitiaas of Ibona btws ; or whether
those lawa are exuaeded? This ia merely ibe
^iieiiioii.

My reaMii for slsliug tbat dumiiiioa aai
pru|ierty were acquired by iwnqoett was, be-
enuse I shall infer lliat Ibe consulutiai) baa ia-
triuied the bio^; <vitb the disposition of the pro*
perty, aod with ibe ordering of ibai dnmioion
conquered ; tubjecl to ibc legislation of tbe
couDtry.

The king, bntb io conqiieaU and calnniea,
has hod ibis right: there nas not been ati in-
stance in which llie king has not eaerciijed the
disposilion of the laws and property uf (he cnn-
qiiered country.

He has graoted by bis charter tbe island of
Si. John.

Tbe kin{ may exercise the ri^bt of disposing
the lands fonqiiered. With respect to tbe laws,
if we shnuld lie carried back (o tbe eunqueat of
Ireland, (wbicb, I think, reraaiiis In p^eat
doobi, wbetber by Edward or king Jobo, or
whether indeed L'omjilelely till Ibe reign of
E.'izahetb, at any period) (be ^reai bjsa uf the
records of Ireland baa made it iinpnshible logo
into an accurale discnasioD. Lord Cuke is of
opinion tbsl, in point uf fact, Heury the sccood
did give ihe laws of England to Ireland. King^
Jidin was not, in trulb, Ihesuvere^gn uf Ire*
Isiiil; tbe actual sovereign was IJeury Ihe
third. Il was not (ill after two desixuts bad
been cast ilisl king Henry the third grautadl
(be English laus.

8iippuBiDg king John ^*e tbein ibose laws,
or that ibey were exiabh^bed ibere before. Ii
iscouleuded this was a mere act of executive
power. I( will appear lo what extent this
power, called executise, was carried.

On Ibe snbjecl of the ^nglisb laws another
ambiguity runs : tbat i( la not only the laws of
prupci'ty anil |iitnishmea( of ctiroea, but Um
political lau a and ciinltitution of the country.

Kupimse ibe king could ool make, nor aiubo>
rize oibns lo moke taus occaaioually, the au-
iburity of parliameol would be neceasary to
(iiake ilie change

Willi respect lu Scotland, whenever (bey did
call a parliament, il was by Ibe bing'a com-
mand and instance, as at Newark ; and it m
lou much lo say that tbe king, in tbe cha-
racter of an exei-'Utiie inagistraie, baa a right
nol only lo create aaaembliea, but to appoial
Ibeir meeliog ; and bIbu thai b« carries witji
him, a' a pari of merely executive power, the
power lo niter laws.

Wiib reapect to VVales, thotigh I believe in
luy connrieDce it was in liict obtained by no
better pretence Iban that ut (be sword, yet Eil-
»ard did iint consider i( as such.

Plowden, 186. Tliero ia no pretence Ibal
Ibe ordiDBDce tbau made was by kiug, lords,

IS GEORGE III. The Case of the Island of Grenada^ [316

bectuse by the treaty of peace the kin|? of
France says he cedes all his right to the kiog
and crown of Great Britain P What dovs the
treaty more than affirm the right of Great Bri-
tain, "by ceding all right or pretensions of ri^ht.
If his' majesty thought fit, alter hating im-
poseif one sort of lavrs, to give another repag-
naot sort of laws, or the parliament were to do
this, it would be by an authority acting in sbS^
version -of the first.

This drives on to another incousisteDcy upoD
the claim of political liberty.

The king by his conquest acquired t power
to provide laws for his subjects, a power which
has been so repeatedly and extensively exer-
cised in other instances.

Has the king sufierseded that rigb|P The
proclamation, it is said, gives the English lar^t
to all the subjects. It was said that it pre-
sumed the laws of England prevailed in the
country, and that it made a provision in the
commission to be given to the judges. What,
that they should bring those laws which, by
this hypothesis, were inere before !

The proclamation might convey the Eng-
lish laws, but not the jioUtical and conatitn-
tional system in general m this kingdom.

The promise is said to be the same which
the king gives here. I don't know by what
record it appears that the king has engaged
himself to his subjects of this country, that,
when couvenience shall permit, or occaaite
shall require, be will permit a pariiament to be
called.

The king, by his commission, empowers the
governor to call an assembly when be shaN
think convenient, or receive mstnictions : and
his authority was so much executory, that he
might have established assemblies either of the
five islands together, or in Grenada apart and
severally.

It would be of the utmost danger to this con-
stitution to say, till the king or parliament
gives them a constitution, he might act in full
power, without any laws to decide.

The commission to call assemblies was not
executed till above a year after the patent im-
posing the duty.

In the case of chartered governments the
argument would, undoubtedly, take a different
turn. It might be said a charter is a grant of
an interest to persons named in the grant ; but
in this nothing could pass, but the constitutioB
existing till some new grant.

The special verdict has not found the time
in which ihe commission passed the great seal.
The patent passed for raising the tax in July ;
the governor did not go over till October ; both
cante together. The king, therefore, had in-
troduced his claim to the imp<»st on the country
prior to the time in which any assembly couA
be called ; for his right was introduced the very
instant of the governor's landing: and the
elder right, in the king especially, will be pre-
ferred above all, when it appears the procln-
mation coald not be intended to waive the im-
'pott

315]

and commons : the king considered it as a fief
under his own personal dominion.

With regard to many places in France,
taken certainly by right of conquest, and ceded
by the treaty of Bretigny, my doubt is, whe-
ther the English laws came thither.

With respect to the market of Calais, the
resort of English introduced the laws there,
for convenience, but not in the castle, nor in
the town of Calais.

With respect to Minorca, the laws of Eng-
land do not take place there.

lu the year 1713 they were referred to cer-
tain of the council, the archbishop of Canter-
bury, and others ; in the 3'ear 17S7 somewhat
was done; in the year 1740 a little more: in
1752 the privy council sent over a great mul-
titude of laws, but the war interfered.

[liord Jlfan{/!€/(/.— This, I think, was after
Ihe complaint against governor Melville.]

1606. King James grants a charter, with a
power of making laws, and an exclusive
fishery, from 84 to 95 degrees of latitude, to
-the corporation of Plymouth.

It is said this charter came into parliament.
They came because an exclusive fishery had
been granted to a corporation residing at Ply-
mouth, with a power of imposing penalties.

The objection was, that at the time the cor-
poration of Plymouth had not sent colonies.

Charter of'Massachuset's bay, with power
to call assemblies, granted by the king ; va-
cated and granted anew after the revolution
by king Wuliara.

I observe, when a passage has been cited
from the history of former times, it is the cus-
tom to say they were bad times. Where are
we to look for the history of this country but in
those times, separating the bad from the good ?

In the case of St. Christopher's there were
given by eminent lawyers very distinct opi-
nions, in favour of the right in the crown to
impose duties. I don't recollect there was any
evidence of want of exercise of that right ;
yet it was contended against because an act of
assembly twenty- five yean after granted the
duties.

Yet, if one was to infer from every act that
has been made in any of the political constitu-
tions of this country that there was no law
before that act was made, it would subvert
most of the most important laws of this country.

It was said the king might have enacted a
law, but only before the time of the actual sur-
render ; but that, after it surrendered to the so-
vereignty, it becomes part of the conquering
state in a different right ; and the ordinances
roust he only temporary till the king and par-
liament provides others.

From the moment the conquest has esta-
blished itself, from the instant in which he has
compelled the inhabitants to give up their
arms,— there is not any hour in which the
parliament cannot bind -it.

Suppoee this ordinance had been before the
tapituulion and cesHOOi would it have ceased

Campiell c. Hall.

'C/ynn, io rctilv. Berore I go into

I quanioti I ihall apeak upon Iwo

rUpt poinu, llioiigjh »u eoi) is msne ol the

wid till ohjecl isIiHlicif to the plainliff liy

tt< g«iw^ quenioti I
tiD|rarUpt poinu, llioiigjh

tbedi

mt importaiil an one in the ^eu

in llist I «tn persiiailed your lordship will

Wp«« o»»!riii judgment.

Tlie ux ia contendeil to be legally letieil,
ifDo • claim ul' which the fery slating of ihe
oar prore* the il leg* lily.

My learned I'riend has set out with disaron--

iDi; thf cUini of an abaolule indepeodeut sn-

iiitbecrowD; but lie boa

riitdt, and wais obliged It

.'.-II ia a subordinate legislature. A
(■orflinaie legislature, in this aeuse at least,
a^fficolt to be conceived to ihoie who know
Mbaw to wake dependence consist with in-
: but llie stale or Grenada Jiatin-
jr. It i» a tax imposed by an act
sfltntuire power, which includes the entire
kg^^f ereigniy ; but it is not m unconirouled
laAorily, Ifecauie Ihe king, <rilh consent of
prfaamcDt, nay depart from Ibis claim, so as
IS Mail lii« aiiccnaors : the supreme legifila<
(Ma may repeal it. The king makes up es-
■Nlwl fMrt of that legislnlure. Is it a mark
rf > limited, «ubutUinat«, authority, llial he
eu iinptwe without ihem wbai they canaol
l^a inray without him ? And that he may
iqun Trocn this is what any man may do io
lay mitaace of the must unconirouled legisla-
Ml auUiqrily.

My |*4innl frieud saya it is a sulionlinale act
tf bjfialatioD ; on act of eneculion, not of le-
^riaUDd. It docs nol depeod up'in the king
•MuT ihv laws n|' England iiilmluce tbem-
wtris, hccaaiw the parliament may alter or
IfHlnl laws. The king may lety taxes by his
W ainhority, which shall staoil in force lill
1 fBliBinenl repeals lliem, which they canuot

I bclieTo my learneil Iriend will hardly prote

■ j>nw«r Te«led in the person of Ibe king. It

•iittia great point our Hampden contended,

iiW 00 t»x can be imposed by the aulhnnty
•( like king. It must, therefore, depend aale-
^ mM ili« iiueHiiou, whether the king has un
BMOU ii»d«iicudeul legislation i or whether
It" |iown uf the cruwi) ia not truly exe-

Tlie profiiulgating and inlrnilueing the ad-

M'Mraliua uf Ihe lawa uf Engliiiirl we ad-

: IO be in ihe king, s« his peciili^irand oe-

■ittry l>u«l, Iha piaking, altering, or suspeud-

</ nl ihooe Uw«, WB deny-

VritwillMSMidliig the ohMrralion on the go-

"<saM>>i Af Hcotlund, ihesiatft were convened

, I I* lb« flrU intunce of Kdward'a claim : and

, d W claiasnl it a> n fieli and obtained as a

f nwHrar, abll be gnvrmrd it as a king of

E^M»d, with exrcuiive and not legislalire

aaliwiij.

Aato llie claim uf ■ feudal duehy in Wales,
<>b«BMBpp(«t that the king tier introduced

A. D. 1774. [318

■ny fant but the laws of EngloDd : and when
be t'oiisidera il expressly, as intimately aod
vitally couoecied with England, as a part i a
the body, iu one entire ilominion, eta it be
doubled whether he underalood Ibat he was to
govern ll by the laws of England T

Whether lord Coke is righl in supposing
king Jolwior aoji other prince, introduced tli«
laws of England iolo Ireland, 1 don't think ia
material; unless it appears some prince, bv
his authority, made laws and regulaliona there,
without the concurrence of Ihe Englisb pat .

The king has tbe power, because it has been
delegated. Thu case was not that ihe king,
in tbe grant In tbe corporation, made laws ta
bind others without their consenl ; bul be em-
powered them to make laws which should hind
themselves. The case is so fir from proving a
power to make laws coulradictory to the laws
of England, that it only proves ibe pitwer of
the king to convey ibe laws of England.

Aod because the king can erect a corporation
which shall make bye-lawi obligatory upon
Ihe particular community, Iherefure ihe ki^og,
il is inferred, can make laws which shall bind
those who never gave their consent to them.

The strooaest authorities, ooilbrm expe-
rience, as well as the principles of the consli-
tuliun. and rules of law, ate against il.

Setdcu's opinion ia agaiost it, and those of the
other great lawyers. It has the testimony of
the best co nsli lull una 1 lawyers, of wbicb no
age was ever more fruitful than that of Jsmea
the Isl, to negative it. It ought to have beeu
not unsupponeil l>^ precedeots. Tbe character
ofihe prince who is made the example of iht
claim, ought to have been other Ihun il was;
he ought to have been a prince who haled pre-
rogative; who was desiroua of keeping llie
right of Ihe crown within its con slit uiional
limits, and hy no meona of extending it beyond

The next are mere private opinions given
by great lawyers, but in private. Though
tney will have great weight, as far a* extra-
iiulicial opinions in courts of law, they^re not
leading principle* of decision: indiliad any
private opinion been decisive. Ibis cause bad
never beeo nnw before the court. No man re-
veres opinions of men of great abilities mors
ihno 1 da : but there is nni the opinion of any
man which standing simply on the l<>oling of
authority', I aball not think myself at liberty
to question ; aod even Ihe greatest have been
hei'Btolbrc queslioned successfully. I never
could be drierred by great opinions, when I
cousidrred by what aulhorilies the liberty of
Ihe press hss been op|)Osed ; by what autho-
rilies the claim of ship-money wns supported ;
and what the event was upon both those que8>

What was done upon the forfeiture of lb*
charter, belbre <be Itevoluilon, is do authority ;
bul rather an argument of error. After ibe
Revolution some law) en gave their apinioit
fur collecting tbe revenues a* ibey used to b«

310] 15 GEORGE III. The

Gollecttd ; Ail ww done mil; in tbe hitRTal

oTiuipwiioii of lesiilitum.

A qnetliob oT tbii mlnre, a power of ■ midq
fihe will i* not to bf gathnrd from idcIi aniho-
ittiM mnd circnmitiiicei ■■ thoK which have
bwD itated. Mr. Attoraeji GcnenI wu snp-

n'Bg an iniUnt Bliro^tMO of all farmer Uwi.
id not aay to whea it wai a tooqiiMt.
There are Mme aoallenble lawi In coatioue.
Aa lb the ol^eclioa made o/S claiming of pro-

Cfty, tbe former mode mutt remam till the
Dg appoioti BDUther by hU euciiliTe power.

Hy tord Vaoghan uyi Ihe inbjecU don't
Acqaire » properly io the ioil. If the inhahit-
wu had been turned out of il, it would have
been in tbe king. In the idea of tlii« coanlry
tbb property ot all Inndi wai oriffinBtly in tlie
Wag. If Mr. Attorney General hod been con-
teilding for Hii» aa ■ feotlal right, tlie irgurarnl
would hare had weiifht ; bol we are not argu-
hifffor the property of the inil.

The aabjecU of En^and liive a right to the
Engliah lawi : tliey hare a riglrt «o aisf mble :
■urtbe reason why the king nerer wiys to
them, " that ha will call aueroblioi aa noun aa
COnTenience pecmita and occaaion alialj re-
quire," ia, becajie io thia coanlry conrenience
alwaya permitt. and occaaion require*. But
alill the trust of calling them ia itpoaed in the

Mr. Attorney Oeiieral,aflerha»ingJi»cn«ied
(be point of aorereigniy in the caae of Ireland,
«ah rcapect t« Ibar aaMoblieii, haa said, this
ia in exeealioo of authority iu the king; ifao,
then the lawa were there before, and aiieDiblies
called npoa the aame tenna aa in England.
And thai the acta concerning them were by
kaihority of ptrUameiit. \

Willi reapect to the power nf the (ting to
nakelawa.

He can make no other lawa than what ghall
hafa been made by the cnnttitiitiand aaaemUiei :
lie can repeal none ; nor alter without them.

Hr. Atlorney General aays that by his pro- |
damalion the tini; promiaea thai he will grant J
them the privilegea of Britiah avtyeeiai |iul |
then thi« promiae cannot lake effect befbrt the i
geternor landt, and an avembly i* called, an^ '
immnl lately on his landing, and before an aa-
senibly can be called, he hai a right Io ley
imiKiaia.

1 lake the coniitruclinn to be, that tbe pro-
mke taket placn from the lime nf iituingit;
A canstitnlinn likei place immediately. We
■re not le»« gnverned hy the lawa of ihiacoun-
try because a parliamenl la not cautantly ail-
tiw-

Thii cannot l)e diatinifuiibed from the ca*e
of any olher colony ; and if tbe power claimed
|>e in this ca»e diulluwed, the colnniea in gene-

Cate nfthe Ttlaiid ofGrtnada — [J
Lord Mati^eld. I dnn'l remember Ha b(
argued in thia caie on the queatioD whel
ibere ia any aulhoniy which cnrnidera i
luiny a* a part of tbe dominiona of the en
of England. Aquitaina and ^leloa ho hd
heir to tbe home of Anjon.

The jiariB aeparated from the crown,
comidered aa feodal, were governed by a
apolic authority. Il appeara that Calaia
Ihe proceaa and judicial writs of thu go
Writ! of error returnable to lliii court.
How do you nodetaland the capilnlation

il not neceaaary for (he right. J

haa been Ceded, I t>rliev«, inthii hnnr.

How do you undtrstand the capitnlati
There ii an artirle that they (hall pay nooi
dutiea but what lliey paid to tbe king- of Frai

Mr. Jutt. Alton.— ¥inX of all in thi* ape
Tenlict the ariiclei of capitulation, tomt
Ihem are alaled. I ilon'i iinderitaoil bow
capitulation and treaty of peace agree, fii
am to judge uj>un the verdict.

ral vrill ilipii att all of them with the
peodence on the supreme l^alalure, ai>it tbe
fame conformity in the priuciplet of tb^ B'iliib
Coaitilu^oB. (fotherwite, there will beUriiiih
autgecta under the aaroe name, and with tbe
aama noninal righia, aome free and olheia io
Kiic«i«iluti«iial aubjeatioD.

Judgment of the Court wai Ihis day gi
by lord Mansfield, asfnUows;

Lord Mantfitld. In this cauieof Aleni
Campbell agiinat William Hall ;

This il an action liruught by the plain
who is a natural -burn sutijcct nt Great Brii
and who, uuon the third uf Muy, 1763, ]
chased lands in Ihe iijaud nf Grenada, i
it il brought against the ilefendaot, Willi
Hall, who was collector fur bit matesty at
time of lerying the impost, and of the >e
brought, of a duty of four and a half per o
upon goods exporteil fiom the i&lautl uf G
Dnda. And il is to recover a sum if mo
which Has levied by the defendant and paid
the plaintiir, as for this <luty nf four and a I
per cent, for sagara whirh Here expoiteil fi
tbe island of Grenada, from the estate and
the cnnti^nment of the plaint<lF.

And tlie case ia laid upon ruoncy had and
eetved ; and plainliff, as fur niuney paid wl
out consiili-ritiiin, the dutiea hating been i
posed without sufficient nr lawful autlioritj
warrant the same, demands Jud^'ment to
cover the same aKsiusI tlie defendaiil.

And it it kUted in ihe snecisi verdict that
money it not |wid over, but continues in
defeDilant'a hands, by consent of llie aituro
general, fur bia m<je«ly, in order that llie qi
linn may be liied.

The special verdict atales Grenada to h
been uouijuf^red by tbe Brilisb am is from
Freiicli king on the 71): of l''e>'ruary, I7i
and ihit the iiland uf G'lnada was crded
cipiiulatiou ; and that ihe capiiululion u
which th*y Burreiid. reil, was bj referenct
the raiiilulation upon nhidi ihe ialaod
Murtinicti had been aiirrenUcred.

Tbe special vcrdn'i then slaleii tome artii
of ihat capitiilaiion, pdrtiruUr'y the H'
which grauit that Matiioico ihaH be gorer.

»l]

Campbdl v. HalL

A. D. 1774k

[SM

bj it* OWD lawt till luB iqajefty's pleaiure be
known.

Cootiotuuice of property, relif^on, honoars,
pnTilegei, aad exemptions, » demanded.
Thejf are referred to the article last stated for
•oswer, which is, that the inhabitants, being
iilflecti of Great Britain, will enjoy their nro-

Ey and the same prifi leges, derived from
r aol^ectioDy as id his majesty's other

Eiglilh article* that they shall be subject
Miy to the capitation tax imposed by his ma>
ynty the king of France, expences of justice
UM puhlic government to be paid out of the
kiac's domain.

Referred to the 7th article, which states the
rafe— and refers to the duties paid by the inba-
hitaats of the Leeward islands.
. The next instrument is the treaty of peace
Ae lOth of February 1763, wbicli states the
ecaioQ, and other articles not material.

The next and material instrument which

ar slate is a proclamation un(i«ir the great
, the 7th of October 17G3, reciting thus :
* Whereas it will greatly contribute to the
' Mtliog of our said islands, of which Grenada

* if one, that they be informed of our love and
'paternal care for the liberties and rights of
' Ibose who are or shall be inhabitants thereof;
< we have thought (it to publish and declare by

* this our proclamation, that we have by our let-
' Ins patent under our great seal of Great Bri-
' In, whereby our said governments are con-
' i(6Medf given express power and direction to
' iv goremora of our said colonies respectively,
'iMt, so lOon as- the state and circumstances
*af the mid colonies will admit thereof, they
■Aally with the advice and consent of our said
f canncilv call and summon general assemblies,
*Ib snch manner and form as is used iii the
' slhcr ooloniea ander our immediate gpvern-
f Meat. And we haTe also given power to the
'mii governorsy with the advice and coQsent
'afonr said council and assenobly of repreaen-
'tMives as aforesaid, to make, constitute and

* ordain laws, statutea and ordinances for the
' IfMc peace, welfare and ^ood government of
'•arsaiu colonies and the inhabitants thereof,
' IS sear as may be agreeable to this laws of
' Eagland, and under such regulations and re-
■ Mrictioos as are used in our other colonies.'

Then follow letters patent under the great
ml, or rather a pniclamation of the 26tb of
karch 1764, whereby the king recites, that he
M ordered a survey and division of the ceded
iriaads, as an invitation to all purchasers to
csmeaod purchase upon certain terms and con-
AioDS specified in the proclamation.

The next instrument stated in the verdict,
htters iMtent on the 9th of April 1764, gives
MounissioD and authority to Robert Melville,
<^. appointed governor of this island of Ore-
ia4a, to summon assemblies as soon as the
titaaiion and circumstances of the island would
idniit ; and to make laws in all the usual forms,
■itb reference to the other plantations where
aMembUes are established.

The governor arrived in Grenada the 14tbL
of December 1764; before the end of 1765,
particular day not stated, the assemblies actu*
ally met : but before the arrival of the governor
in Grenada, indeed before his commission, and
before bis departure from London, there is an*
other Instrument upon the validity of which tha
whole turns.

Letters patent under the great seal, hearing
date the SOth of July 1764, reciting that ii^
Barbadoes, and all other of the British Lee^
ward islands, a duty of four and a half pei^
c^nt. is paid upou goods exported ; and re-
citinir farther :

' Whereas it is convenient and expedient,
' and of great importance to our other sugar

* colonies, that the like dufies should taka

* place in Grenada ; we do Tiereby , by virtue of

* our authority and prerogative royal, ordaiq

* that an impost of four and a half per eenC

* in specie shall, from and after the 29tb day of

* September next, be raised and paid to us, our

* heirs and successors, for and upon all dead

* commodities of the growth or produce of our
' said island of Grenada that shall be shipped

< off from the same, in lieu of all customs an(|

< impost duties hitherto collected upon goods

* imported and exported into and out of the said
' island, under the autj^prity of his most Chris*

* tian majesty, and that the same shall be col*

* lected :' then it goes on with reference to the
island of Barbacu^es and the other Leeifard
islands.

The jury find that ip fact such duty of fot||p
and a half per cent, is paid tp Lis majesty in
all the British Leeward ulands.

And they find several ^is of assembW whjch
are relative to ttie state of tUe 'seyeraiisla^dsy
and which I shall not state, a^' tl)ey are
public, and ev^ry gentlenuui may ' have* acf^s^
to them.

These letters patent of the SOth of July
1764, with what 1 stated in the opening, ara
all that is material in this special ve)r({ict.

Upon the whole of the case tliis general
question arjses, beipg the substance of what is
submitted to the Oo^rt by the verdict : <* Whe-
ther these letters patent of the 30th of July
1764, are good and valid to abrogate the Frencn
duties, and in lieu thereof to impose this duty
of four and a half per cent." which is paid by
all the Leeward islands subject to bis majesty.

That the letters are void lias been contended
at the bar, upon two points.

1st, That although they had been made
before the prociaiiation, the kin^ by his pre-
rogative could not have imposed them.

!2dly. That, although the king had sufficient
authority Mure the 20tli of July 1764, he had
divested himself of thatauthority by the procla-
mation.

A great deal has been said and authorities
cited — relative to propositions in whicli both
sides exactly agree, or which are too clear to
be denied. The stating of these will lead us
to the solution of the first point.

1st, A country contjuered by tlie British

15 GEORGE III.

The

883]

arms becomes a domiDion of the kinff'toright
of hit crown, and therefore necessartly inbject
to the legislatWe power of the parliament of
Great Britain.

Sdiv, The conqucreil inhabitants once re-
ceived into the conqiieror'i protection become
tnbjects ; and are universally to be considered
in that light, not as enemies or aliens.

Sdly, Articles of capitolation u|H)n which the
conquest is surrendered, and treaties of peace
by which it is ceded, are sacred and inviolable,
according to their true intent.

4thly, The law and legislation of every do-
minion equally aflTects all persons and pro|ierty
within the limits thereof, and is the true rufe
for the decisiuu of all questions which arise
there : whoever purchases, toes or lives there,
puts himself under the laws of the place, and
in the situation of its inhabitants. An English-
man in Minorca or the isle of Man, or the
plantations, has no distinct right from the i»-
tives while he continues there.

5thly, Laws of a conquered country con-
tinue until they are alteretl by the cor.qaeror.
The justice and antiquity of this maxim is un-
convertible ; and the absuni exception as to
pagans, in Calvin's case, shews the universa*
lity of the maxim. The exception could* not
exist before the Christian sra, and in all pro-
bability arose from the mad enthusiasm of the
crusades. — In the present case the capitulation
expressly provides and agrees, that they shall
continue to be governed by their present laws,
until bia majesty's pleasure be further known.

6thly, If the kin|^ has power (and, when I say
the king, I mean in this case to be understood
** vrithont concurrence of parliament*') to make
new laws for a conquered country, this beiug a
power subordinate to his own authority, as a

£art of the supreme legislature in parliament,
e can make none which are contrary to fun-
damental principles ; none excepting from the
laws of trade or authority of parliament, cr
privileges exclusive of his other subjects.

The present proclamation is an act of this
tobordinate legislative power : if made before
the 11th October 1763, it would have been
made on the most reasonable and equitable
grounds; putting the island of Grenada on the
aame footing as the other islands.

If -Grenada paid more duties, the injury
would have been to her ; if less, to the other
islands.

It would bare been carrying the capitulation
into execution, which gave ho|ies, if any new
duties more were laid on, their comiiiion would
be I he same as that of the other Leeward
islands.

The only question which remains then is,
whether the king had power nfier ihe 4ih of
Fehniary ITdS, of himself, to impose ihi« duty.

Taking these propositions to be grantetl, he
has a legislative power over a conquered coun-
try, limited to him by the constitution, and
■ohiordinate to the conatituiton and parliament ;
and a power lo grant or refuse capitulation.

if Im rfefuM, and pun lo tin aaord or extii^

Case of the Island ofGretiada'^ [S24

Ktes the inhabitants of a coontry, obtaiDing it
^ conquest, the lands are his ; and if be plaota
a'' colony, the new settlers share the land be*
tween them, subject to the prerogative of the
, conqueror.* If he receives them into obedi*
ence and grants them property, be has power
to fix a tax. He is intrusted with the terms of
making |)eace at his discretion ; and be maj
retain the conquest or yield it up, on such con-
dition as he shall think fit to agree.
This is not a matter of disputed richt;^ it
! has hitherto been uncontroverted that the king

- may change part or all of the political ibrm of
government over a conqoered dominion.

To go into the history of conquests made by

j the crown of England. The alteration of tba

I laws of Ireland, has been much discosaed by

the Uwyers and writers of great fame, ffo

, man ever said the change was made by the

{larliament ; no man, unless perhaps BIr. Mo«
yneux, ever said the king could not do it.

The fact, in truth, after all the researchct
that could be made, comes out clearly lo be at
laid down by lord chief justice Vaugbao.

**• Ireland received the laws of England by
the charters and command of H. 3, king JohOi
H. 3, and he adds, &c. to take in Edward, and
the successors of the princes named. Tliat
the charter 12 king John, was by aaaent of
parliament in Ireland, be shews clearly to be
a mistake. Whenever a pariiament was called
in Ireland, that change in their oonstitotioa
I was without an act of pariiament in Englandp
I and therefore must have been derived from
the king."

Mr. Barrington is well warranted. Tba
12tb of Edward 1st, called the statute of Waled^
is certainty no more than a regulation made by
the king as conqueror, for the government 'oi
the country, which, the preamble snj's, wm
then totally subdued; aua, however for par-
poses of policy he might think fit to claim it ai
a fief, appertaining to the realm of Englandlf
he could never think himself entitled to make
laws without assent of parliament, to bind tbc
subjects of any part of the realm. TherefiMf^
as he did make laws for Wales without assent
of parliament, the clear consequence is, ht
governed it as a conquest : which was his title
in fact, and the feodal right but a fiction.

Berwick, after the conquest of it, was go»
vemed by charters from the crown, till the
reign of James the 1st, without interposition ef
parliament.

Whatever chanj^es vere made in the lawi of
Gasconv, Guyenr.e and Calais, must have beca

- under tbe kind's authoiity ; it* by act of par*

* '* Those u ords seem to mean, that Ibt
kiiiv:*f« irtrislauvo auilioritv "ver these new aet*
tiers, is derived tVoin tlie circumstance of hit
having granted tin^m their lands ; though, still«
> the last wonis * suhject to the prerogative of tba
conqueror* seem very obscure, since the wbola
matter in question is to know what is the prc^
rontive of the cooqueror." 8 Canadian Fn^
holidcra 51.

_ tlimenl thrre btk commercial ^
TttiliTC lo »'acli uf the canqu»ts wliich I
bue nameil ; iinne making- any cbaugi
ih«ir cDOEtiluii'in anil laws.

Vc| •• to Calais, there was a great change
made in llieir coii'liluljoo : Tur ihey nereaiini'
aoocd bj nril lu irni hurgesset lit Ihe Eai;li»h
Mdiamenl ; Bod. ai this waa nnt by act of par-
liitncDt, ii muat ba*e been by the eole act or
liif kiug.

tt ilfa re^rd 10 tlie inbahitanli, llieir properly
i:i<l trtile, at Gibraltar, the king, elet diice
lui cunqiml, has Tram time to tiroe made
wdara and rrgulaliona cuilable lo the conililion
M ibosQ a ho lire, trade, or enjoy properly la a
prriaiiD lonto.

Mr. AUorney General has alludeil to a *a-
Mljr of iiuiaace«, several wilhiu theie twenty
fW*! in which the king has exerciied legisls'
<tm ortt Blinorca. Id Minorca il has ap-
fmwd Ulely, thai there are and have been lor
JIM* b*ck a great manv iahabitaDle or trortti,
■i ■ OTMI trade carried ud.

If ■£> king doet it there aa coming in the
paM vt ihe king uC Spain, because Ibeir old

continues (which by Ihe by it

tm pfOof that Ihe coDstilution of England does
HI ■cecMarlly follow a conqueM by the king-
it Ewhiid) llie same argument applies here ;
irUSre the Tlh of Oclober, 1763, the consli-
Mi«tt ef Grenada conlinueU, and Ihe kiug slirad
■ Ihe place of their lurmer aorereign.

After the conquest of New York, in which
Ml of Ihe oM Dulcb inhnbltnnU remained,
img Chariea the 'id changed iheir conFiilulion
wd palilicsl fnrm of govemmeot, and granted
M M Ifae ttukc of York, to hohl from bii crawn
aaderall ilie r^ulatiuna coulaiued in the let-

II is no* 10 be wondered ihat an adjudged
MM in |inint ti out to he found ; no dispute
ft wa« Rtarlvd before opon Ihe king's legii-
Ittnr ritftal over ■ couqiieei : ii never was de-
aiiri ui ■ ciiut of Uw or equity iu Weslmin-
Mct-b*l). tieter waa questioned in parliameiil.

LiwJ Cokv'c report of ihe argumenU and

rHOlationa at the judges in Caldn's esse lays

tl^aim as clear. (Aiul ihat strange enirnju-

4iaai upftion, as loa uonqueal from a pagan

CMMlrjr, Mill not make reason not lo be reasOD.

■arf taw aot to be law, as to the rest.) And ihe

tfohaa^, that if aking~~l omil the dislino-

■ian belw*«B a Christian and infidel kingdom,

•WU M 10 Ibis pur|Hise ia wholly groundless,

mi DMI dcMnredly exploilcd—" If a king

Dana Ut a biogdom by cooqnesi, he may, at

*- ^ pIcNWirv, alter and change the laws of lliat

L'dofD i bot, until he doUi make an allera-

'-. lim lactnit laws of that kingdom remuin :

' fa kioc bath a kingdom by deaceni, there,

'!>:< by iKc Iswi of iho kingdom he doth in*

i: lb* kJHgdom, lie caanol change the laws

liinwilf nitbaat couaeat of padiameui.

king JdIih bad given In them, being under hia
obedience and aubjecliun, the laws of England
for lbs government of iheir native couulry, no
succeeding kinu could alter Ibe same without
parliament. Which is ver^ jusi, and it ne-
cesiBi'jIy includes that king John himself
could not alter the grant of the lawa of Etig-

Besidea this, the authorily of two great
uames has been cited, who took the propvsitiun
for granted. Anil though opioiooB of counsel,
whether acting officially in a public charge or
ID private, are not properly aulhority to found
n decision, yet I cilelliemi — not to eslablisb
so clear a point, but to sbew that when il has
been matter of legal enquiry Ihe answer it ha*
received, by gentlemen of eminent fcbarsoler
and abilities in llie profession, has been imme'
diate and without hesilation, aod coaformabla
t» these principles.

Id 179!, the assembly of Jamaica refusing
the nsnal supplies, it was referred to sir Philip
Yorke and sir Clement Wearg, what was to
be done if ihey shouhl persist in their refusal.

Their answer is — '• thai, if Jamaica wassljll
to be considered as a conquered country, Iha
king had a right to lay laxvs upon the iiiliahi*
; but, if it was to be considered in Iba
I light as the oiber colonies, no lax could
iposed upon ihe inhahiUuis, but by an as-
aeniblv of the island, or by an jicl of parlia-

Tbe dislinctioD in law between a conquered
country and a colony tliey held to be clear and
indisputable ; whether, as to the case bcfor*
lliem of Jamaica, lliat island reinamed a con-
quest or was made a colony, ibey had not
examined.

I have, upon former occasions, traced iha
constitution of Jamaica as far as there ara'
honks or papers in Ihe offices: I cannot find
that any Spaniard remained upon the islaud ao
late a* the Bestoralion ; if any, they were fevr,

A gentleman, lo wlmm 1 put the question oq
one of the aigunieols in tills cause, said ha
knew uf no Spanish slave of the while iuhabl-
tanlB of Jamaica; but there were amunfa^ttha
negroes.*

The king, I mean Charles ihe second, afler
Ihe Itesliiration invited settlers by pruclaraation,
promising them his protection. He appointed
at first a goiemor and council only ; nfier-
wsrds he granted a couimiisiun to the governor
to callan assembly.

The cunstitulion of every province imme<
dialely under the king has arisen in the aama
manner ; not by the graoii, but by Ibe com-
mission subsequent to call an assembly. And
Iherelore, all the Spaniards huTing lei) Lba

Upon this subject see Edwards's History
of the We«t Indies, book !. chap. S, nift./n.
chap. 3,Tol. 1, pp. US, 159, l6S.

927]

li GEORGE 111. The Case of the hlani nf Grenada^ [flSB

isUnd, of hfcrin^ Been killed or driren out of
it, the first settHpgf was by an Enj^lidh colouy,
who iiAiler the authority of the kirig;^ planted a
Vacant island, belonging to him in right of his
crown.

The like is the case of tbie islands of St.
Helena and St. John, mentioned by Mr.
Attoniey-Oeneral.

A maxim of constitdtional law with all the
jndres in Cal fin's case, and two such men in
modem times as sir Philip Yorke and sir Cle-
ment Wearg,* 1 take it for granted, will aconire
tome anthoritv, even if there were any thing
which otherwise made it doubtFul ; but on the
isbhtrary no book, no saying of a judge, no not
even an opinion of any counsel publiic of pri-
vate, has been cited ; no instance is to be found
■ ■ ■ r

* ** Frenchman, The opinion of sir Philip
Yorke and sir Clement Wearg, must indeed be
allowed \n be an authority in point to the ques-
tion; because those two learned gentlemen
•eem to bare meanj^ ascribe to tlie crown the
same perfect and permanent sort of legislali? ie
authority over Jamaica, in case it was still to
be conNideripd as a conquered country, as lord
HansBeld has ascribed to it with respect to the

^island of Grenada before the proclamation of
October, 17*63 : but yet 1 cannot think it a ? ery
inespectable authority, notwithstanding the
threat learning and eminence of those gentle-
men ; partly, because it seems to hare been
rather a hasty oniniun, upon which the}' had
iiestowed very little consideration, since they
did not take the pains to enquire whether Ja-
maica was to he still considered as a conquered
country, or u hether, by events subsequent to
the conquest of it, it was become a colony ; and
partly, because it may well be supposed that
persons who serve the crown in the offices of
attorney and solicitor general, have, in all
doubtful matters relating to the royal preroga-
tive, a bias on their minds in favour of it.

** Englishman, Persons in their then situa-
tions must always be liable to the suspicion of
inclining a little to favour the prerogative of
the crown: and, as you well observed, this
opinion of theirs seems to have been given very
hastily and with very little attention to the sub-
ject, since they did not take care to inform
themMves concerning the then present condi-
tion of Jamaica, so as tu determine whether it
bught to be considered as a conquest or a
colony, though this was absolutely necessary
to make their opinion of any use to the minis-
ters of state who had consulted them. It must,
however, be confessed that, crude and hasty as
this opinion seems to have been, it sdrves to
ghew that those two great lawyers bad a gene-
ral, loose, floating, idea of the king's being the
absolute legislator of all countries acquired by

' cotaquest, which, (as 1 observed to you in the
beginning of our conversation,) was an opinion
ihat had been adopted by a grelit many private
Uwyers, though 1 never could see aby fonnda-
tM>ft fbr It." CauiditB Frteholdcr, DM. f,
p. 297| et Iff.

in any period of oar history where it waa ^cr
questioned.

The counsel for the plaintiff ondoubtedly Ik-
beared this point from a diffidence what migllt
he our opinion on the second.

but U|K>n full consideration we are all df
opinion tnat before the SOtb of July, 1764, the
king had precluded himself from an exerciM
of the legislative aothoritv by rirtueof his bre-
roptive, which he had before over tbe islairtl
ofGrenada.

The first and material instrnnient is the pro-
clamation of the 7th of October 1763. 8m
what it is that the king says, and with wbit
view be says it ; bow and to what he lengigei
himnself and pledges his word. ** WhereAi H
t^ill greatly contribote to the speedy aettliAg
our said new governments, that our loving «lC
jects should he informed of our paternal cart
for the security of tlie liberties and propertiai
df those who are and shall become inhamtanti
thereof; we hate thought fit to pablftb «bS
declare by this our proclamation, that we bati
in the letters patent nnder our great teil taH
Greal Britain, by which tiie said gdvemmMili
are constitnted, given express power and dirii6
tion to our governors of our said coldniei r^
spectively, that, so soon as the state and bir
cunfistances of our said cotonies will ndtaril
thereof, they shall, with the advice and edb'<
sent of the members of oar council, aamnKMI
and call Mieral atoembliea" (and then folibi
the directions for that purpose.) And to wM
end P •* To make, confetitnte and ordaia bM
statotes, and onlinaneet, for the public peafl0
welfare and good of our said colonies (of wbid
this of Grenada is one) and of the people ani
inhabitants thereof, as near as may be agredk
ble to the laws of England.**

With what view is the promise reciting^ tH
commission actually given P To invite setUiets
to invite subjects. Why? The reason I
given. Tliey may think their liberties aai
properties more secure when they have a legii
lative assembly. The governor and coand
depending on the king he can recall them i
pleasure, and give a new frame to tbe cotM
tution ; but not so of the other which haa a rie
gative on those parts of the legislature wbid
depend on the king.

Therefore that assurance is given them fc
the security of their liberties and properticj
and with a view to invite them to go and setll
there after this proclaniation that assured tlM^
of tbie constitntiod under which they were I
five.

The next act is of the €6th of March tttA
which, the constitution having been estaMiab^
by proclamation, invites further, such as atM
be disposed to cOlme and purchase, to live iillctt
the constitation. It states certain terms ail
conditions on which the allotments were to I
taken, cstabliabed with a view to permaoitft
colonization and the encrease and caltlvfctiod i
th6 new ftettlement

In farthier confinttatiMi, on the Sfth tof Aj^
1764^ tiH^ ttODdM Mbre tflte f mpM ft qud

Campbell v. HaU.

fTibiweiiiQ Bctual coTniiil«>

Mi^lviltr, lu <Mi1l in issi!<i>hlv

kle mil cirFiiiii.tantts nl' (lie

aUmii. — Vow will oWrvp in the

llierE ia no t^itltture rea^rreJ to

bj th« ktni>; or by ihe governor

uihln hJ!i aulhorily, or iu anj niher

ttiktioer uniil ilieaRjemblyihould be

pr0nti«c iitlttmis rlie contnry ; Tor

niuttucilon is tu be put uiMn il,

iii|is it may be somewliat oilHeult

R (liruii(>h bII ilie csacs to nhieh il

r Kpjilleii) il ap|iarenlly cnniidera Iiiivi

KJHK IB llle iiHiiad, arxt to li« ailmilii^-

* c<tart« iX juilicp; nai an ialei'|l(»ition

natin aiiihuritj brtwMD the lime of the

and of fallioj,' ilie asBCntbly,

I iHtt appear IVom Die appcitl terilict

1 Hrd auembly was i^allFil ; it mnst

n in ■bout a year at t'artlieiit from (he

'• krrital. Tor Ilie Jury tiiid lie arrired

rr 1764. anil ibat an aiMmbly was

I Ihe latter end ol the year 1765,

e been nolbiny; in

WUItl olrc-.imalaucM ot'lhe i'^land to prc-

Sllhl^ an uicmbly.

flitorvfore think by Ihelwn pMclainationa
fl IMAInlikiion tu gotemor Metrilte, (be
d iiDmedfalely and irrcTiicahly graoted
m did Or ahould inUthii. ur who bad or
U hnVe properly in the isliad of Grenada

rerftl to all whom il ahould roneern —
soiiordiflaie legialatiuo oier Ihe iatand
aaulil be exercited by ibeaasembly with Ibe
.ad ruuiiri'. in like luaQDer as in the
'ir>-4 under ibpbing.
< Inre, IhouKli the rlgbl of Ihe king
. lEcl taxe* on ■ conquered cnliniry,
l»iii in ri^t of liii rruwii, wat (rood,
Lltia duty reaaoiiahle, equitable and etpe-
^ aiMl acrordins lo the nodinK of ih^ rer-
'i \m BarOadoei, and til ihe other Lee-
; yet by thr inadierlenry of Ihe
tiafi'a vrrTanIa ill the urder lii whteh lb
Tit iMiramfnti paiseil ibeuffipe, (rorlbi
; -I of the toib of July 1764. lor taJaing the
1 r,! .liiie.l, sboolil hVve lie»n firsi) Ihe ordei
' niid the bsl ne Ibliik contrary lo
Ij-.iuq of the first; and therefore

A. D. 1774.

[330

^^^iim UUer* patent lin|>osinii ihe diUv of

^^^~~*^-1f pet cent, were publiahed in July

''~mtimiaaie«of goTemor MeNille

Vtral and ^vernnr in chief of

' V Amniif; other ihineu he nan

' 11 in UMemhty nf ihefree-

I It), hud pMsed the ^eal

: inonlh of April of* the

i: Ihe lirst asaerubly nf ih«

nn\ intrt till abont Detemhei

liH near a year and a half after

I (he letlera patent, thai impiraed

of fiiir and k half per cent, and

I limyearaDfierthRpnlilicatlon of Ihe

Hon Of October UtX, which prO-

i'^mI Uw pM>pl« of Grenada » jjof eruBaem by

How proper toerer the thing iftij be rea-

peeiinic Ibe object of the»e letteotpaiint, il ran
..nlv no» be done (to Osfc the rtordsuf air Philip
Yorke and lir Clement Wrtre) ■• by an act of
assemblv uf (beiilami, or by ihe oaHiiuiint of
Great griiaio."

TbecoDaequenceitJiidgineolfor ibePlaiatifT.

fNule. I have here u^aiii the pleasnre of re*
lutniog my thanlo to Mr. Alleyne, by whom 1
have been thionred with ihe copy of t|ie Special
Verdict in this remarkable cau»e. 1 have ilti>
u^ some material a I argelv with which I bare
been obli^eil in the first Jay'a argument; tbi
crowd being then ao great tbal 1 wai hindered
in taking notes of ray unn; and for the same
reason I have used the liherly in ihe judgment
of supplying what I found imperfect or mia.
laken in my own nolea io leveral placet, I'rntn
a printed note of It wbicb ilas been publiiihed ;
and correclinir that iu some placet where t
(bund it uiialaken.]

[Here cnrfl the Caii at rqtarted ty L^.'j

In llie report of Rex v, Samuel Taughant
4 Burr. 9494, Upon a queaiiou wlielher the
slatutei 13 R. 3, c. -2, and 5 and 0 Edw. $, c.
16, extended to Jamaioa, lord Manifield taya,

" If Jaitiaica was considered as a conqueitf
they would retain tbelf old lawa, lit) the con-
queror hail ihonght fii Io alter Ihcm. If H U
cousiileVed as i colony, (wliicli il oosht to be,
Ihe oht inhabitants hating lelt Ibe itiatid) then
(hese ainiutes art |H)iotT>eret;ulaiiona uf policfe,
nut adapleil to the cii-eiim«TancFs of a new co-
lony ; and Iberefore no part of that law of
Rngland, which every ci^ony fro-n neeeMilV
ia Supposed to carry whh iheoi at their ftrii
!>"'"'■!''"■"

an assembly, not immMialely, but at loon ia
the siluatiun and i'ircunMlani.-es of the aaid
new governmeniB ivunld admit thereof. HetCj
therefore, was an inlertal of mnr6 than lAo
years after the pOblicHrion of the proeltnn-
lion ofOctOber 1T63, before Ibe «swi»My of
Grenada met; during whk-h, according In yoDt
way of reagonirig, the king was not precluded
by hisprnclnmaiion of Ooiober 1769, front tx-
erciJing bial^i«1alifeaulboritv in ihe islani) of
Grenaila, in the same manner as hefor* Ihe said
nroclamation wai made, aupposing he had be-
fore that act been legstly possm-ed of such an-
thnrily; abd in Ihe former hairofihis inltrfaf,-
nimely in July i761, histlmjesly did HercM
tbi« legislalire aulhorily by iMning ihnM Itt*
fer* patent which Imposed Ihe said duly of
four and a half per cent. These kiit-ra psteM
therefore, arrording lo yoor doctrine, miisl have
been legal when ihey were ivsned if (hrr would
have been so lief<ire die Ktid prodiimitioh of
October 1793." J C»M9d. FreehuldW, p. !H.
Hm bIm Ihe pasiBgM iUmUflMTy iRMMnJl;
JiBd fullDlHtig thi*.

531]

15 GEORGE lU. The Case of the bland of Grenada^ [S89

Mr. Edwards (Hist, of the West Indies, book
S, chap. 2,) gives a brief account of this case
of Campbell v. Hall, to which he subjoins ani-
madrersioos on some of the most important
passaf(es in lord Mansfield's argument. In
nis introduction to those animadversions, he
■ays, *^ It is impossible, I think, not to per-
ceire, througfhout these and other parts of the
learned judge's argument, a certam degree of
Iwas arising from the unhappy dissentions,
which about that period broke out into a civil
war between Great Britain and her colonies :
ID the progress of which, it is believed this noble
person distinguished himself as an active par-
tizan, and a powerful advocate for the uncon-
ditional supremacy of the mother country."

In the second edition of his work he inserted
at the end of that chapter the following

Postscript to the History of Grenada.

** The first edition of this work having fallen
into the hands of a gentleman of distinguished
abilities and learning, (one of his majesty's
aeijeant's at law) he was pleased, at the au-
thor's request, to communicate his thoughts
in writing on the doctrine maintained by lord
MtiDsfield, concerning the legal authority of
the crown over conquered countries, as stated
in page S68 of this volume, which I have great
pkai ure in presenting to the reader, in the pre-
cise words in which tiiey were given :

'' The ground upon which the Court rested
their judgment in the case of Grenada, wu
clearly sufficient to warrant that judgment,
even admitting the doctrine laid down by
lord Mansfield on the other point to be well
founded ; but nothing can be more unfounded
than that doctrine :— every proposition upon
which it is made to rest, is a fallacy. I deny
that the king (at least since the constitution
has had its present form) can *• arbitrarily
grant or refuse a capitulation.' The power
of granting or refusing a capitulation^ in the
case of a siege or invasion, is certainly vested
in him ; but it is vested in him, hke every
other power with which he is entrusted by the
British constitution, to be exercbed according
to the usage which has prevailed in like cases.
If that power should be abused, his officers and
ministers must answer to the public for their
misconduct.

'* For the same reason I deny that < the
king can put the inhabitants of a conquered
country to the sword, or otherwise exterminate
Ihem,' unless such severity be fully justified
by the laws of war, as they are imderstood
amongst civilized nations.

*' But, supposing that a case should hsppen
wherein sucn severity would be justifiable, I
deny that, upon the extermination of the
enemy, the lands would belong to the king
bimsdf : I say they would belong to the state ;
mod that they would be subject not merely to
the king, but to the sovereign power which go«
verna the British dominions. If the king re-
oiirti the inhabitmtf ander bit protactkm, and

grants them their property, 1 deny that he has
power to fix such terms sind conditions as be
thinks proper ; for be cannot reserve to bimadf,
in his individual capacity, legislative power
over them : that would be to exclude tlie an*
thority of the British legislature from the ^
vemment of a country subdued by Brilish
forces, and would be an attempt to erect unpe-
rium in imperio. One consequence of this
would be, that such conquered territory might
descend to an heir of the king not qualimd,
according to the act of settlement, to succeed to
the crown of Great Britain. The king[ might
give it to a younger son, or bestow it on «
stranger. A thousand other absurd conae-
quences might be pointed out, ai resulting from
such incongruity.

<« 1 admit that the khig (subject to the re-
sponsibility of his ministers,) may yield up a
conquest or retain it as be sees best, but 1 day
for the reasons above hinted at, that be can
impose what terms he pleases, or that he can
arbitrarily change the law or political form of
its government. I think he may agree opon
the capitulation, that the conquered people aball
continue to enjoy their ancient religion and
laws, and even this must be tub modo ; but t
deny that he could, by his own authority, grant
these things after the capitulation ; for thai
would amount to an exercise of independent
sovereignty. The fallacy of lord MansfieM'a
argument, proceeds from an endeavour to coor
found the king's civil and military characterSy
and to perpetuate in the chief executive aia«
gistrate, the vast powers with which it is neoes«
sary to invest the generalissimo of^thearmieii
during the continuance of military operations.
The moment these operations cease, he re*
sumes his civil character, and in that charactec .
no man will venture to assert that, as king of ^
Great Britain, he has the prerogative of bang
a despot io any part of his dominions. WKb
respect to the cases of Ireland, Wales, and
Berwick, even taking them precisely as lord
Mansfield puts them, 1 think they do not weigh
a feather in the argument. Those cases hap-
pened long before the English constitution had
reduced itself to its present form, consequently »
before the rights of the people were ascertained
and defined as they exist at present. If a few
instances of the exercise of arbitrary power by
the ancient kings of England, are to be received
as decisive cases, to shew what are the powera
of the crown at this day, I think it would be
no very difficult task to find authorities,* even
as low down as the reigns of the Plantagenet&
and Stuarts, to prove that the British govern^
ment ought to be a pure despotism !"

But the most valuable investigation which I
have seen of the case of Campbell and Hail, and

* See Burke's Speech in the Hooae eff
Commons February tne 11th, 1780, as quoted
in 8 State Trials, p. 79, and the precedug

CaiophtUv-HaU.

ic jad^ettt pronDDncBil upon it by lord
■fletit, IB conUinefliulh««eciiDil ilialugue in
rmetk of my learneil and excellent tVifnil
Baron Huerei, eiiiilleil " Tlie Canadian
re every Important position
vtriFh tnni MaDitield IriirMBrEunientlaiililowo,
ii inratig-Ucil wiilimucli cupiouinets, parlicu-
kiily, and elabnralinn ; tbe aulborities on

■ bicfa he relied, are fully and accumtely cited,
ud conndcreil with abundant care and jud^-
Bwol; hiarcBsoDiQ^.boibibstract&Dd lechai-
rt arv itoled with the most scrupulous eiact-

, and discuiwd with g^eai learning *nd
„ mty ; the bistorical transactions lo nhich
ktnfetTcdtre luminously defeloped, and cri-
faHy Inced through all their known rimilica-
te>; and the whole merits of Ibe important
Mtian* which were agiiated in the course uf
maM,are exhibiteil with the moat ioitruc-
iwtad Mliaractory illustration. lu ihe fol-
"^"f puvagetbecourst; orinTeiligaliou pur-
B tbe work is recap! lulated :

*' Emglisdman, — Fhemcbman.
" £. — 1 believe we have gone through all the
ebn of lord Msnstietd's argument in sup-
i>nrt of Ihe snle legislative authority of the
irown overconqueredcoiinirieB, and hare given
liitm ■ very full and lair examination : which
II til I proposed to do upon the subject. For,

tula my own opinion upon It before that de-
AiM«r lord HansReld, 1 bare already men-
imti il to you in the beginning of our cnn-
•foatiun. together willi the reasons upon which
.'i >1 ri. and hsd the latisfaelioo of find-
II eniirely agreed with me in loih,
iioipated some of Ihe latter. What
. ii>ete inihoriiy of lord Manslield,

, ^ ... iiiit judicial capacity, a* chief justice

. gl~ tUc Cauft of King's-bencb, and delivering a

Mntnfy opinion, but grounding it on reasons

' All we think weak anrl unconclutire, ought la

bar* npnn our mind*, I nil! not pretend to de-

. -rmine. Bui il is hard to give up one's rea-

■ Q Ui itjere authority.

■' F.— So haril that I shall not do it, This is

.•'icDiMittanlapoinlto be settled by a single de-

-.oB uf a court ofjustice, or. perhaps I ought

,i!k« to Bay, by (he opinion of a single judi;e.

I <ir, \tj what jnu (laled Ui me of that Judg-

varal in tiie rase uf Cnropbcll and Hall, it doFS

otM apfpar to be i^mie tvrtaiu that all Ihe

JttJgvB of the court of King's- bench concurred

*iih li>r>l M*n>field in opiniou upon lliat first

enl cf Ibr cause. For, since, as lord Mans-
d triprnalv dfclared, Ibey all agreed that
tb* plaioOir CampWII was entitled in Ihe judg-
tneal <>f the CouK upon tbesecnnd point, In wil,
tbii till' I'll'/. <l bt lind bad the sole legislative
. ...UifGrenadairomediale-
i> of tbe treaty of Paris
<i ncrertbelesB preclndeil
"iislion of October, 1763,
r> cii-'--t.iiiLi ■! ii"i" that lime fi.rwaiil, and
>.) ibrrsby Iraiwlrrrcil the laid power lo the

I'-rira g»*«fnar*, councili, and anemblies uf

A. D. 177*.

[SSk

ihe said istaud ; I say, since all the jadgea
agreed with lord Maosneld in Ibe opinion Ibal
the plainlilF Campbell ought lo have jodgmenl
ujMn this second ground, it is possible that they
might not concur with him In his opinion upon
the first point, cnnceroing the king's nrigioal
legislalive authority over llial island before the
said proolamalion of October, 1.03. Unlesa,
therefore, it was expressly declared by lord
Manilield (who seems to have been Ihe ooly
Judge that spoke upon that occasion) that Ilia
olber judges concurred with him in that opi<
nion upon the first point, 1 do not think we are
bound to consider it ns being' their opinion. I
therefore should be glad to know whether lord
MnasBeld expressly declared that Ibe other
three judges of the court did concur with him
in that opinion.

" £- — ] do nol find that be did make such a
declaration, though, with respect to tbe second
poiul, he expressed himself in these posiljva
words; ' Uul, alier full consideration, we are
' of opiniou, that before tbe aoih ofJuly, I7li4,
' Ihe king had precluded himself from ihe ex-
' crcise of a legislsliie authority over the island
' of Grenada.' There is therefore a possibi-
Uly that vour surmise may be true, that Ihe
other judges did nut agree with bim in opinion
upon the said lirsl poiuL Vet their silence on
the occasion seems lo imply an assent lo what
he delivered. So that ] don't know what lo
conclude concerning Ihat matter. All that ia

io Ibis opinion.

" F,— Well, belhatasltmay: whetlierlfaej
did, ordid not, concur with lord Alnn^field in that
opinion, I confess 1 cannot bring iDyself to ac-
cede to il, alUr having seen the wenkness of lh«
reason! which have been alledged in support
of it by so very able a delender uf il as loi4
Mansfield. Fur, if thai opinion could have
been rendered plausible and probable by any
man, I presume il would have been so by brd
niansfieid. And yet we have seen how re-
markably be has failed on this occasion, bolb
io his reasonings and in biii facts ; 1 must
therefore adhere to my firsl opiuion till tome
better arguments are produced to make raa
change it. — But, as this enquiry has run into
great length, in consequence of ibe full and
particular manner in which you have examln>
ed ibe several historical examples adduced by
lord Mansiield in support of his opinion, and
likewise uf some digrvssions lu other subjecia
which you have made to gratily my cuiiokily,
I must desire you lo resume tbe subject for ■
little while longer, and repeat the principal
conclusions we have agreed UDon in answer lo
the several brandies of lord MansfieUt's argu-
ment, and to stale them in as compact and
summary a manner as vou can, to the end that
1 may be the belter able to arrange and retain
Ihem ID my memory.

" £.— I think Ibis vrill indeed be very pfoptr,

385]

15 GEORGE III. The Case qfthe Island qf Grenada^ [8S6

fpr both our takes ; and therefore I will endea-
yofir to do it with as much brevity as shall be
oopyUteDt with a full enumeratioo of'fhe several
eoDclusioDs, (relative to the main subjecl,) upon
frbich we have agreed ; but without an^ men-
lioD of the collateral aqd incidental subjects to
which we have digressed. But even this will
fi|k^ up many words.

« \Ve have agreed, then, in the first place,
that lord Mansfield has reasoned very inconclu-

Cely in the first part of bis argument, in which
endeavours to establish the king's sole le-
gislative authority over conquered countries
ppott general principles of law and reason ; —
^^t bo has therein confounded the power of
inaking waf , and the summary and arbitrary
l^utbprity necessarily attenclaut upon jt, (which
confessedly belong to the crown alone,) with
the |)Ower of governing conquered countries
in time of peace, after they have been finally
ceded by their former sovereigns to the crown :
!— and tnat he has likewise confounded this
latter power of governing a country, and ezer-
citintf legifclative authority over it, after it is
«eded, with the power of making peace, or of
•ither accepting the cession of the conquered
•ountry from ita former sovereign, or restoring
the country back to him : — and, lastly, that he
bu endeavoured to deduce a right of making
laws for a conquered country from the right of
granting away the vacant lands of it, that is,
from a right of ownership \ which, if it were
to be admitted in other cases to be sufficient
fn this purpose, would prove every land-owner
to be an absolute monarch, or legislator, over
the persons who rented, or took grants of, his
land. These, I think, are the remarks we con-
curred in making upon the first part of lord
Blausfidd's argument, in which he endeavour-
ed to establish this sole legislative (lower of the
crown upon principles oflaw and reason.

*< 1 come now to his precedents from his-
tory, which are the cases of Ireland, Wales,
Berwick upon Tweed, Gascony, Calais, New-
York, Jamaica, Gibraltar, and Slinorca.

<* VVith respect to Ireland we observed, that
he argued, from king John's having, by his
fole authority, introduced the laws of England
into Ireland, that he therefore was the sole
legislator of it ; which we agreed to be by no
means a just conclusion, there being a manifest
difference between a power in the conquering
king to introduce once for all, immediately
after the conquest, into the conquered country
the laws of the conquering country, and the
regular, permanent, legislative authority by
which the laws of the cont|uored country may,
at any time after, be changed at the pleasure
of the legislators, (whoever they are,) not only
by introducing into it the laws of the conquer-
ing nation, but any other laws whatsoever, and
tins as often, and m as great a degree, as the
legislators shall think fit. And we further oh-
aervcd, that lord Coke, in the passage quoted
from this report of Calvin's case, has expressly
declared that the kings of Englan^l were not
poynnrd of this pcmiaoeat IqpaUtive f uiho-

rity over Ireland, not having a right to alt^r
the laws of Eosland, (when once iotrodaccd
there by |ciog Jonn,) without consent of pi^r-
liament ; and that lord Mapsfield has adopted
this opinion of lord Coke, though it clashi^ with
the conclusion which he laboured to draw froui
this case of Ireland in favour of the king's sole
legislative p<iwer in the island of Grenada.
And we further observed that, for sonie cen-
turies past, at least, the laws whic{i have been
made for the governipent of Ireland have beei|
made either with the consent of the parliament
of England, or with that of the parliament of
Ireland. So that, upon the whole matter,
Ireland appears to be a very unfit example of
the exercise of such a sole legislative authority
in the crown over a conquere<l country as iora
Mansfield asserted to have belonged to it in the
case of the isUind of Grenada before the publi?
cation of the royal proclamation of Octob^f
1763. These, 1 think, are the principal re-
marks we agreed upon concerning Ireland.

'* With respect to Wales it oppeareil to os
that lord Mansfield had mistaken two very
material facts relating to it. For, in th^ first
place, he asserted that that country had not
been a fief of the crown of England before its
complete reduction by king Edward the ltt|
notwithstanding king Edward, in the famous
Statutum Walliie, passed immediately after the
reduction of it, expressly declares that it had
been so, and notwithstanding a cloud of pais-
sages in that venerable old historian, Mattneir
Paris, (who lived in the reign of king Henry
the 3d, k'uig Edward's father,) which prov^
that it was in such a state of feudal sub-
jection to the crown of England throughout all
the reign of king Henry the 3d and for several
reigns before. But, in opposition to these de-
cisive testimonies, lord Mansfield will have i^
that Wales had never been a fief of the crown
of England before the reduction of it by king
Edward, but was then, for the first time, re-
diiced by his victorious arods, to be a dependant
dominion of the crown of England; but that,
for some reasons of policy, (uhich, however,
lord Mansfield does not slate, nor even bint
at,) kinff Edward thought proper to declare it
to have been in a state of feudal subjection to
the crown l>efore his conquest of it. Aud berf
we observed that lord Mansfield reasoned in-
conclusively even from his own assumed state *
of the fact. For, if Wales had not been a fief i
of the crown of England before king EdwanTs
reduction of it, but bad been (as lord Mansfield \
supposes) an absolutely independent state until
that time, yet, if king Edward had, for ai^ i
reasons of policy, thought fii to consider ft i
I (though fa'selv) as having been before in a state i
; of feudal suliieciion lo the crown, such a plan •
I of pulic\ in king Edward would have rendered |
! Wales an unfit example of the exercise of thf
power of a king nf Eni>land over a conquered |,
iMiuntry ; because it must l>e supposed tbsit ^
kin;r Edward woukl, in such a case, have ex-
ercised only such rights of govern iiirnt over it |
aa were compatible with the pjiitical sitoalioh »

SS7]

CamiAdl v. HaJL

A. D, 1774h

[SS8

Id wbicb be woald bare tbougbi fit to place it,
whicb would hate been that of au ancient fief
of the crown redaoed into possession. And we
ekerf ed also that he bad misconceived another
naterial fact relating to this country, with re-
spect to the power by which laws were made
fur the gOTernment of it a(\er its reduction by
king Edward. For he asserts tliat king Ed-
ward made laws for it by his own single autho-
rity, Dotwilhstandinll^ it is expressly declared
ky that king himself in the preamble of bis
anonfl Htaiutum Walliae, above mentioned,
that the laws be then established for the go-
fcnmeot of it were made * de conciiio proce^
* mm regni nostri,' or by the consent of bis
fsrliament.

** These mistakes we observed to have been
Mdeby lord Mansfield in what he said con-
Cfroiog those two great examples of Ireland
and Vvales ; whicb are also of too great anti-
qoity to have mnch weight in determining a
tticraoo concerning the cun:»titution of the
Eagliafa government at this day.

** We then observed that sll the other in*
tenoas that were mentioned by him, except
those of Gibraltar and Minorca, are of no im-
psrtanca to the question. These instances
were the town of Berwick upon Tweed, the
dacby of Guienne, or Gascony, the toliro of
Cslais io France, the province of New* York in
North America, and the island of Jamaica.

■* All that be says of Berwick upon Tweed
h^ thai it was governed by a royml charter.
Birt that circumstance is no proof tnat the king
VM the sole legislator of it, any more than be
ii of tbe cities of York, Bristol, Exeter, and
iveaty other towns in England, wluob are
gtvcmed alao 1^ royal charters. And even
last charter of Berwick appears to have been
esBfirmed by act of parliament in the reign of
king Jamea the 1st.

** As Io the^lnchy of Gnienne, or Gasoony,
and ^he town of Cafais io France, they were not
ac^ircd by tbe kings of England by conquest,
ha& by marriage and inberitan<:e^ and conse-
qncntiy can a£>rd no example of the power of
loe crown over conquered countries.

** And tbe province of New -York in Anoerica
ia an unfit example for this purpose, because,
thoogh perbapa in truth it might be a mere
flaaqueat made upon tbe Dutch in tbe year
1064, after they had been many years in quiet
naaassainn of it, yet it was not so cwisidered by
BDg Cbarlea the Sil, who took it from them,
bol was claimed and seize«l upon by bis order
aa a part of the territory nf the more ancient
Eagliah colony of New -England, into which,
it wan pretended, the Dutch bad intruded
Ivca without the perinissien of the
And, upon this ground of an nlreaily-
_ right to it in the crown of En^laiHl, it

granted awav by king Charles the 2d to

bia Mother, the duke of York, before ever the

which waa sent to take possession of it,

sailed from England ; and it was taken

lioQ of by colouel Nicliolls, as a part of

lbs kiog'a oM dMaiaionSy bafora the king en-

VOL, XX.

o.

tered into tlie first Dutch war. As, therefore^
it was not considered by the crown as a con*
quered country, tbe government estaklislied in
it cannot be justly cited as an example of tb«
authority of tbe crown over conquered coun«
tries. — And nearly the same thing may be said
of the island of Jamaica ; since hird Mousfield
tells us that lie had found, upon inquiring into
the history of it, that it had been aliHosi en-
tirely abandoned by the Spanish inhabitants of
it soon after its conquest by the arms of Eng*
land in the year 1655 in the time of Crom-
well's usurpation, and that it was occupied
only by English settlers at, or soon after, the
restoration of king Charles tbe ad in 1660 ^
insomuch that it bad been considered ever sinc«
that period as an English plantation, and nol
as a conquered country. For, if this be true»
(as I do not doubt it is,) it renders this island
an unfit example of the exercise of the legis-
lative authority of the crown over conquered
countries. I mean only, however, that it ia
not a direct example for this purpose : for in-
directly, 1 acknowledge, both this island and
tbe province of New- York may be used as ftt^
^uments in favoiu* of this authority, by reason*
ing as follows : 'ITbe power of tlie crown over
a conquered country must be at least as great
as it is over a planted country, or colooy.
Therefore, since tbe king of England exercised
legislative authority over the island of Jamaicv
for about twenty years, without tlie concur*
rence of either tlie English parliament or aa
assembly of tlie people; and since the duke of
York did the same thing in the province of
New- York for about eighteen years by virtiM
of a delegation of the powers of government tw
him from the crown by king Charles's letters-
patent ; and these two countries were not con-
sidered as conquests, but as plnntations of Eng-
lishmen ; it follows, djartiorif that in coun-
tries that are not only conquered, but considered
as conquered, tbe crown may lawfully exeroia»
the same authority.' This would nave beea
a tolerably plausible argument, and rotich
stronger than any of those which lord Mans-
field made use of in that judgment. But
he did not make use of this argument; and
indeed could not, consistently with the opinioa
he delivered concerning planted countnea, or
colonies : for in these be declared that the kinfr
alone had not the power of making lawa and
imposing taxes, bul the king and parliament
conjointly, or the king and tbe assembly of the
freeholders of the colony conjointly, agreealdy to
the opinion of sir I^ilip Yorke and sir Clement
Wearg in the year 1722 concerning the island
of Jamaica. He could not, therefore, maktt
use of the fore^foiiig argument d forihri, in
favour of tlie king's sole legislative authority
over conquered G4iuiitries, which is built upon
the supposition of his majesty's having bad
such an autliority over planted countrifs, or
colonies; because he denied the existence of
the latter autliority, which is its fbundation.
According to lord Ulanslield's doctrine, tbera* .
fore, of the king's not being the aola kgislal

i

SSff]

15 GEORGfe III. The Case of the Island of Grenada^ \M6

of planted couotries, the itiKtances of New-
York aod Jamaica cannot afford the abo? e in-
direct arGTument d fortiori in aopport of the
king'a sole leffislulno authority over conquen-d
countriea. Nor can tbev nflford a direct ar^j^u-
ment, independently ot the consideration of
plaiiieil conntries, in support of this authority ;
oecauvt* ihofie places, or prorinces, (thou((h
really conquests,) were considered and treated
as planted conntries. And therefore they
ought not to have been cited by lord Mansfield
as proofs of the said authority. As to the opi-
Dion of such lavryers (if there are any such at
this day) as would go further than lord Mans-
field in their notions of the king's le^^islative
authority, and would asy, that the king is the
■ole legislator not only of all conqoered coun-
tries, but of all planted countries in which he
bss not divested himself of his authority by
some charter or proclamation, I shall say no-
thing to it, but that I agree with lord Mansfield
ID considering the opinion of such lawyers as
erroneous with respect to planted countries,
and that I am inclined to go beyond lord
Mansfield in thinking it likewise erroneous
with respect to conquered countries, or, at
least, that the arguments adduced by his lord-
ship in support of it in that latter case, are not
sufficieDt to establish it.

** As to Gibraltar and Minorca, in which the
king has made from time to time some regu-
lations by bis orders in his privy council, we
have observed that the former of these placcfs is
really nothing more than a garrison-town,
without an inch of ground belonging to it be-
yond the tbrtifications ; and that the latter of
them, thoogh an island of some extent, has al*
ways been considered by the people of £ngland
IB nearly the same ligfht, or as an appendage to
the fortress of St. Philip's castle, which defends
the harbour of Mahon ; — that its civil govern-
ment has been intirely neglected by the mi-
nisters of state in Great-Britain ever since the
eonqaest of it, and that no attempt has been
made to encourage the profession of the Pro-
testant religion in it, or to introduce the Eng-
lish laws there, even upon criminal mailers ;
and yet that the state of the laws, which are
•upposed to take place there, is to uncertain and
undetermined, that, (though the old Spanish
laws are supposed to be in Tbrce, and most fVe-
quently appealed to^, the inhabitants sometimes
plead the English laws. And from these cir-
oumstsnees of neglect, confusion, and uncer-
tainty,— and likewise from the small importance
of the aubjecis upon which the kings of Great-
Britain have eiercised a legislative authority
over these places by their orders in council, (no
laws for creating new felonies or capital crimes,
or for imposin^^ taxes on the inhabitants of those
coQDtries, or tor any other very important pnr-
poae, having ever been made with respect to
them), we concluded that neither this island
nor the town of Gibraltar were fit examples to
prof e lord Mansfield's assertion coneeming the
nde legislative anthority of the crown over
oonqnerad oomitries*

" These were the principal remarks we made
upon lord Mansfield's second ground of ar^-'
nieni in support of the sole legndative authoritT'
uf the crown over conquered countries, h bicn
consisted of hihtorical examples, which were
supposed to be precedents of the exercise of
such an authority.

** i come now to lord Mansfield^s last bead
ofar^meot in support ofthis authority ; which
consisted of the opinion of the juilges, as re-
ported by lord Coke, in Calvin's case, and of
that of sir Philip Yorke and sir Clement Wearg,
(Attorney and Solicitor General to king George
the 1st), in the yesr 1792, on a question referred
to them concerning the island of Jamaica.

<* Conceraing the opinion of the judges in
Calvin's case we observed in the 1st place, that
it WHS extrajudicial, having little, or no, rela-
tion to the question then under consideration,
which was. Whether a person bom in Scotland'
since the accession of king James the ist to
the crown of England, was to be considered as
a natural- bom subject in England as well as in
Scotland, so as to be intiiled to purchase land,
and maintain actions at law for the possession '
of it, in the former kingdom as well as in the
latter. And, n|K>n this ground of its being
extra-judicial, we concluded that this opinion
of the judges conceraing conquered countries
was not to oe considered as decisive upon tba
subject.

** In the second place, we observed that this
opinion of the judges, concerning the power of
the crown over conqueretl coontnes, was inter-
mixed with another opinion, concerning the
difference between Pagan and Christisn con-
quered countries, which was so unreasonable,
illiberal, and unjust, that lord Mansfield said il
had long ago been most deservedly exploded.
Now, if the opinion of those judges on the latter
subject is so very contemptible, it must, surely,
lessen our respect for the wisdom and judg-
ment of the judges who delivered it, and con-
sequently must take off much of the wei^t
which their other opinion, concernine Christian
countries conquered by the arms of England^
would otherwise derive from their authority.

*' In the Sd place, we observed that it ap-
pears from the history of those times, that the
judges, who determined Cslvin's case, were
considered by many persons of that age as'
having acted with a servile degree of com-
plaisance to king James on thai occasion;
which may be supposed to have influenced
them in the opiniom they delivered upon inci-
dental points that were mentioned in the course
of their argumenta, as well as in their opinion
upon the main qoeation then in dispute before
them. And this consideration must contribuie
to lessen the authority of their opinions upon
those incidental points as well as upon the main
point, and conseqnently that of their opinion,
so much relied upon by lord Mansfield, eon*
cerainj^ the power of the crown over conqneicd
countries.

** And, in the 4tb and lastplaee, we obserred
that Ibis opinion of lord Coke and tba ollie»

■Hn CampbeU V. Hall.

jadgca ID Ctlrin'i caie, cODccrniDg the kgis-
l«li*e power of Ibc? crown otcrcniiqiiered qoun-
IrMB, ii not the Eani« with lord Huisfielil's opi-
nion upon Ihix lubject, but maleriilly diHertnl
fmn it. For lord Coke laciiha to the crown
enly the |K>wer orchangioK the laws ofthecoo-
fOereil oounlry onec fur all, upon Ibe cooquett
ef it, anil iiitroiliii.'iug (he Imwa nf EukUuJ in
tbdr stpad : but he aifils that, when once the
kio^ has inlroiluced ihe laws nf Etifiland into
Ibc conqiirred country, he cannot allerivarJa
ilier them without the consent of parliament ;
which is nyiag, that the kbg aoa parllatnent
■nd not the king alone, are pos-
ibe neimaDent ri^hl of legiilatino
8i> thai this autburity of Calrin's
or, (lucb as it is), is rather adrerse tlian fa-
luraUe lo lori] Mansfield's doctrioe upon this

itj»Cl.

" Theie arc Ibe obteriatinna we made with

s in CalTiD'i
id so great i

A. D. 1774.

134S

X"'?'.'

Vrtrke and air Clement Wearg In the year ITSa

ipno • <]ueslioa Ihal was referred to tbeoi con-

iriiiuj; (he ialand of Jamaica.

" This opiniou, we acknowledged, did really

^incide wiih lord Mansfield's uploion upon

le aulhorilv of the crown over conuuered coun-

-"t, tbouKli tbe npioioD of the judges in Cal-

'..r*C>M dill nut. But we agreed that, as

''s'hc learned g«nllemen were at that time to

ii^ wFrvife of Ibe crown In llie offices of atlor-

I'l ftnd solicitor ganeral to king George the

■•:, (which matt natural ty be supposed to hare

^i<m them some degree of bias in faTour of

mt iircrogatlTeoflhe crowo,) and this opinion

■ppMra to bate been gireo by them in a very

tasty and negligent manner, (since they did

aat uke ibc [uins lo inquire, and lo fnrm a

jadnoent, whether J amsica ought to have been

a^ coosidered aa a conquered country, or bad

tjlh* nnnduct of ibe crown in the gotern-

IBBDt of it sioce Ibe Rnlorstion in 1600, been

bmight iutolbe condition ot'a planted count r;r>

•r colony ; which was so nece««ary lo Iheir

fifiag an meful and satisfactory opioiou upon

At BiBiler referred to ihem ;) I say, we agreed

jjttt, for these reasons, thia opinion of theirs

■ael intilled to much regard with respecl
H ateniion nfthe important ijuestion which
R flutiirct of OUT preseni iiHiuiry.
And Ibiia we complrlcd our discaaoion of
Mansfield's third ■n<l l»l bead o<' srgu.
SWMI, whiofa waa grounded on the npioiona of
judgnnnd other leariird lawyera.

" Till*, 1 presume, is the kind of recapilu-

iMiMs which you wished me to make tn you,

I ihc priDcipal eonci iwiont we bad agreed on

''re court* of our examination of lord Mans-

l'a«|iiftion upon thiasubjecL

wbicli w* bare agreed on, u

«aiily than 1 otberwise eanid do. Nor do I
think of any thing furtber to trouble you about
upon tbe subject. And yet, belure I inlircly
quit it, I must beg leave to eipreal my sar-
prize at Ibe rtry poailire and peremptory
manner In which lord Msnifietd asserted this
power of making laws for cniiouered countries
to belong to ihe crown. ' No (lis piili^, says he,
wai erer slarled before upon the king's legis-
lalire rigfit over n conquest. It never was de-
nied in Wesiininsler-ball ; it never tvaa ques-
tioned in parliament.' And ngain, ' No book,
DO saying of ajudge, no opinion of any coun-
sel, public, or private, has Wen cited on tha
other side ; no instance has bpen found iu any
perimi of our history, where a d'>ubt has been
raised concerning ii.' These are Mrangely
confident expressions, considering the weaknesa
of the proon he adduces in support of tliem ;
lo which, indeeil, they form a remarkable coo-
Irast. This, I confess, has surprised me in a
mno so niucb celvbraled for his learning aod
abililies an lord Mansfield. I therefore wish
lo knovr how you accouoi for il; and ihe ra>
iber, because this etlreme positiieueas in a
roan of his abililies has a tendency (o dazzle
and overbear my judgment, and make me yield
implicitly lo bis opinion, notwithstanding 1
have satisfied myself, by our discusiioii of thia
siilijecl, that the reasons he has adduced in
support of it, are Tery weak.

" E. — Your remark ii very just. There isa
strange degree of posillveness in his assertions,
that is very ill soiled lo ibe weskuess of his
arguments in support of ihem. And what
makes it tbe more surprizing ii, that he him-
self ordered this case of Campbell and Hall lo
be argued no lesti than three limes, on three
diflereni days, at the bar, before he decided it ;
which would, surely, have been unnecessary,
and, consetjuently, lojurious to Ihe parties (by
forcinic them lo suffer s needless delay, and
incur an unnecessary degree of expence, in Ihe
prosecution nf their legal claiuu,) if Ihe matter
lisd been so extremely clear and free from
diiubi 8* he, in dsliveriog bis Judgment, repre-
sents it. But Ihal posiliveness uf ssserlinn ia
agreeabte to his cooslaot manner of speaking,
and may, perhaps, be considered as one of tha
ingredients of his s^iecies of eloqueuce, as it
certainly has the effect you mention, of daz-
zling, tor a time, and overbearing his hearer*
into an aequiPBcence in tbe truth of ibeproposl-
tioiia he so peremptorily asserts. But you,
nbo have exumineil iba reasons adduced by
liini in support of bis assertiun conorrniug the
present subject, and have found them In be in-
sufficient, ought lo break through Ihe inchant-
menl, and lo yield to Ihe conclusions of your
own understauding, and erabrnce whslappeara
lo it to be the truth ; agreeably to the old Latin
proverb, 'Amicus Plato; Amicua Socrates ;
srd magis arnica verilas.' Howeier, to tako
off Bomelbing of the impresaioti which you asv
those positive aECsertiunt of lord MansflelJ,
oliicb you juti now repealed, ars apt to maka

3^s]

15 GEORGE m. The Cmse qfihe Island of Grenada^ [5(1

tipoo your mind, I will eodcafour to slieir yoa
that most of them m\gbt be chaofred into others
of an opposite tendency, tvbich ahoald be either
at nearly, or more nearly, agfrecable to the
truth : thouffh yet, I confess, they will not be
decisive of the question afaiast the legislative
mutliority of the arown, any more than lord
Mansfield's assertions are decisive in lavonr of
it; because both those assertions and lord
Mansfield's, (to which they are opposed,) are
neif stive propositions, from which no certain
conclusions can be drawn.

** Lsrd Mansfield says io the first place ;
* That the kiat^'s legislatiTe right over a con-
<|aest lias never been denied in Westminsler-
hall.' Now, if this assertion were true, it
ivould prove nothing, unless this legislative
right had been frequently asserted in West-
minster- hall, and made the ground of some
procetfdini; there ; which it has not. We may
therefore chaoj^e this assertion into the follow-
ing ; * The king's legislative right over a con-
qoest has never been asserted in Westminster-
ball. * And this latter assertion is as near the
truth as hml Mansfield's, or rather nearer to it.
For the king's legislative power over a eon-

Soest has not been asserted in Westminster-
all, as I believe, shove two or three times ;
•nd that by single judges, and in a slight, ooca-
•ionat, and ezirajudical manner : but (if we un-
derstand by it the fun, and proper, and per-
manent legislative power, and not the power of
introducing, once for all, the laws of England
into the conquered country,) the king's legisla-
tive power over a conouered country was de-
nied by lord Coke and almost all the other
judges in Calvin's case, where they said, * that,
when once king John had introduced the laws
of England into Ireland, no subsequent king
could alter them without the consent of parlia-
ment.' Yon see, therefore, that this first as-
sertion of lord Mansfield, * That the king's le-
gislatire right over a conqnest has neier been
denied in Westminster* hall,' is not true; and
that, if it were true, it would not be material to
the decision of the main onesfiou, unless the
said legislative right had been frequently a»-
•erted in Westminster- hall, and made the
ground of some proceeding there ; which it
has not.

** LKird Mansfield's next asaertiou is, * That
the king's legislative right over a conquest was
Bcver questituied in parliament.' Now we may
assert, I believe, with equal truth* ' That it
■ever was acknowledged, or asserted, in parlia-
ment' And the reason of both these equsHy
true, but very different, propositionB, is, that
the parliament has never had occasion to con-
sider the conduct of the crown with respect to
any conquered countries, since we have any
memorials of the debates in pariiament ; which
is only from the reign of kine Edward the 6th,
or about the vcar 1550: and indeed, I believe^
we may go nirther, and say, that tho crows
has msde no new conquests sinoo that period,
to be tho objecti of this supposed legislotive a«-
tkorityi tnepi tbe pmiaee of Now-Yoik, tho

iaUnd of Jamaica, the town of Gihraltar, and
the island of Minorca, of which wo bofo ioea
that the two first, (though in troth tbcy weso
conquered from the Dutch and tho Spaniards,)
vrere always considered as planted Obuntriea, or
eotonies, and the two last nave been cooridmd
by the English nation as mere garrison lowni«
or fertiesscB, no otherwise worthy of ootieo
than as they defend the harbours of CKbraltar
and PortiMahon, which are usefbl to the Bri-
tish trade in the Mediterranean. However, I
will not take upon me to say with any doff reo of
eonfidenca, either, * that tne king's legislativo
right over a conquest has never Men denied »
parliament,' (as lord Mansfield asserts) or * that
It has never been acknowledged, or asserted, io
pariiament ;' becanse I do not pretend to bo
well enough acquainted with the siany fblio
volumes of the Journals of the two houses of
parliament, to Tenture upon either of these as-
sertions, or nther negations : but I am inclined
to think they are iMth true : and in that caao
one of them msy fairiy be set against the other.

** Lord Mansfieki's next, or third, assertioii
is, ' That no book, no ssying of a judgo^ no
ophiion of any counsel, public or pnvate, has
been cited on the other side.' Now, in answer
to this assertion, it may be truly asserted tbat»
< no book, no saying of anv judge, no opinion
of aoy private counsel, (that is, of any eotmsel
that waa uninfluenced by the possession of a
precarious office hekl at the pleasure of tho
crown,) and but one opinion of any puMiecooD-
sel, (or counsel in possession of such ofltos,)
namely, that of sir Philip Yorke and sir Clo-
ment Weorg, in the year 1722, (and that opi-
nion seems, opoo other grounds, to have hcoo
a very hasty one ;) has been 6ted by his lord*
ship m support of this legislative authority of
the crown over conquered conntries.* I say
this assertion may be truly nutde in oppositiao
to hml MansfieA's : for the saying of tho
judges in Calvin's case (which is the only opi«
nion of any judges, which lord Mansfieid hum
cited in support of this authority) appears, omi
examination, to be adverse to his loHsbip's «o^
trine. - And thus we shall have assertioi» againat
assertioQ concernmg the want of opmioiia of
judges and other learned men upon this oob-
ject, supposing the assertion of kwd Mansfield
to be tme. But these assertions provo
nothing on either side. The want of the opt*
nions of judges and other learned men co«*
ceminga question never agitated, affords ni
no groonda for the decision of it : and there-
fore we must have recourse to other methods
of investigation in order to aatisfy onrsoifot
concerning it.

«< But lord Mansfield*s aasertion, that « no
book, no saying of a judge^ no opinion of any
counsel, public or private, has been cited on
tho other side,' is not strictly true. For tiM
opinion of Vattel, a learned nsodem writer oa
the law of nations, was cited on that aide : and,
as this qoestMD seems rather to belong ta Ibo
law of aatioas than to the nsunicipol low off
Bngludi Mehn Mrtkority ougbt Ml •• to.

345]

Can^hett v. Hall.

A. D. 177*.

[S4(»

dnrriEsrdcd. Vtttel's work is writ in French :
Imt 1 have an Enf^lish translation of it, in which
tba paange relating to this subject is expressed
IB tbeae words. * It is asked, to whom the
eonqnest belongs ; to the prince, who made it,
•r to the state ? This question ought never to
htve been heard of. Can the sorereign act, as
iBcfay tor any other end than the good of the
Mite?— Whose are the forces eniptoyeil in the
var F'-fiven, if lie had made the conquest at
bis own expence, out of his own revenue, or
Im proper and patrimonial estates, does he not
■sin use of his subjects' arms ? Is it not their
Uaod that is shed ? — And, even supposing that
be had em|>loyed foreign, or mercenary,
taopa, doea he not expose his nation to the
CMony'a resentment? Does he not draw it
iito the war, while the advantage is to be his
«aly ?— is it not for the cauf>e of the slate, and
ff the nation, that he takes arms ? Therefore
•I ibc rights proceeding from it appertain to
tbt nation. If, indeed, the. sovereign makes
mr for a cause personal to himself, as, for iu-
Msace, to ascertain a right of succession to a
fercign sovereignty, the question is altered :
Mch an affair would be foreign to the state;
km Iben the nation should be at liberty either
tavHit its prince or not concern itself. And,
if be ia em|iowered to make use of the national
fwee in supfwrt of his personal rights, snch
ngbia are no longer to be distinguished from
MK of the state.' The meaning of this pas-
s^ppy as applied to Great- Britain, seems to be,
ibal every coontry conquered by the British
arms ia an acquisition to the British nation,
aad not to the king alone ; — that its public re-
arnie becomes part of the public revenue of
Gitat Britain, as much as the taxes raised in
Great Britain itself, and is to be disposed of in
the same mauner, and for the same public uses,
as those taxes, instead of belonging to the
kng's privy parse; — and that the power of
impasing new taxes on the inhabitants of such
csaatry, and likewise that of making new laws
fcr tbeir government, most belong to the same
bady of men as is lawfully possessed of those
psweis in the kingdom of Great Britain itself;
Ibait is, to the king, lords, and commons of the
kiagdom, conjoinSy ; they being the body who
kgallj represent the whofe people of Great
Bnlaio, and are invested with the whole antho-
rity anginally inherent in, and derived from,
the said people, or, according to Vattel's ex-
prtision, the said state or nation.

** This passage from Vattel's book on the
law of natioBS was cited in one of the argu-
mcBts of this cause of Gsmpbell and Hall be-
flbfe lord Mansfield : and therefore he ought not
to have said that no book was cited on that side
of the question. If he meant that no Ijook of
Eaglish law was cited on that bide, he should
bave conlineil his expression to that sort of
book.

Df m lord MansfieM's assertion above-
!Bliaiied, That no book, no saying of a judge,
•MMMi 9f any counsel, public or private,
Bmi died OS the other side, strictly true

«*

with respect to the second article of it, the saj
ings of judges, any more than with respect to
the first article, of authorities from books. For
we have seen that, upon examination, the opi-
nion of the judges in Calvin's case appears to
be an authority on that side of the question:
since the judges there affirm, that, when once
king John had introduced the laws of England
into Ireland, no subsequent king could alter
ihem without the consent of parliament ; whicK
is saying, that the legislative authority over
conquered countries does not belong to the
king alone, but to the king and parliament
conjointly.

'* As to the opinions of lawyers on this sub-
ject, it may, perhaps, be true (as loni Mana-
field asserts), that none were cited in the argu-
ments in that cause on that side of the question.
Yet 1 have met with two opinions of very re-
spectable lawyers that incline much to that side
of the question, though they may not entirely
adopt it Th^e are the opinions of sir William
Jones, who was attorney-general to king
Charles the second, and Mr. Lechmere, who
heM the same office under king George the
1st: and thc^ were given while those gentle-
men respectively held that office under the
crown ; which gives those opinions an addi-
tional weight; because, the bias on their
minds arising from their possession of that
office, having probably been in favour of the
crown, an opinion against the prerogative of
the crown must have been the effect of strong
conviction. 8ir William Jones was attorney-
general to king Charles the second, in the year
1679, in the time of the ferment about the
Popish Plot, while that king (though fond of
arbitrary power), was oblig^, by the spirit of
the times, to employ some honest and popular
men in his service, and to pass some popular
laws for the preservation of public liberty. He
executed this office with great apphnse, and
was reckoned to be the most learned lawyer of
that time ; sir Matthew Hale, the great chief-
justice of the KingVbrnch, being then dead :
and he was also esteemed a very honest man,
and a lorer of his country, mw it is said in
the life of sir William Phips, page 23, (as it is
quoted in Mr. Smithes History of New-York,
from which I take it), that this sir William
Jones told king Charles the second, That he
could no ihore grant a commission to levy mo-
ney on his subjects in the plant^itioiis, without
their consent by an asf^ewbly, than they could
discharge tbemsflves from their allegiance.

** According to ibis account of this learned
lawyer's opinion, it is not certain whether he
had, or had not, in his mind, when he gave it,
the distinction between planted countries, or
colonies, and conquered countries, and whe-
ther he meant to deny the right of the crown
to levy money by its own single authority in
both these sorts of dependant countries, or only
in the former. But, according to other accounts
of this same opinion, it appears to have relateil
to conquered countries as well as planted ones.
For in a letter written by the house of repr^

347J

15 GEORGE III. The Case qfthe Island of Grenada— [348

senUtiTef of the pro? ince of the Maisachusets
Bavy in the mooth of January, 1768, to the
ean of Shelburne, (who was at that time one of
bii majesty'! priDcipal secretaries of state), it
is recited in these words; 8ir William Jones,
an eminent jurist, declared it as his opinion, to
kiog^ Charles the second. That be could no
more irrant a commission to lef y money on his
aulyects in Jamaica, without their consent by
an assembly, than Ihey could discharf^e them-
self es from their allegiance to the crown.

** In this account we see that this opinion
related to Jamaica; which was a conquered
country. The oolv remaining doubt therefore
M, whether sir William Jones, when he gate
this opinion, considered Jamaica as continuing
still in its original state of a conquered coun-
trjr, or whether he supposed its political con-
dition to ha? e been altered by the erents that
had happened to it since its conquest, (such as
the withdrawing of the Spanish inhabitants
from it, and the accession of Ensflishmen to it,
who were invited by the king's proclamation
to come and settle in it), so as to have been
thereby converted into the political condition of
a colony, or country that had been originally
planted by Englishmen under the king's au-
thority ; which is the light in which lord Mans-
field sieems to think that island ought to have
been considered in the year 1729, when sir
Philip Yorke and sir Clement Wearg gave
their opinion concerning it. But there may be
a great deal of difference lietween the condition
of Jamaica, in the year 1722, and its condition
in king Charles the 8d's time, about the year
1677, or 1678, when this opinion probably was
given : and the reasons for considering it as
having changed its political state from that of
a conquered to that of a planted country, or
colony, were much stronger in the vear 1722
than at the other |>eriod. For durins the greater
part of Charles the second's reign, and tliere-
ibre, probably, when this opinion was given,
the inhaliitants of Jamaica were governed only
by a governor and council, without an as-
sembly of the people : and consequently king
Charles, when this opinion was given, had not
yet, (by granting them the privilege of being
represented by an assembly with a power to
make laws and impose taxes for the public uses
of the island), divested liiin.^eirof his ant(^e<lent
right to im|H)se taxes on tliem, if such a right
bad really belongeil to him. It seems there-
Fore not unlikely that sir William Jones, when
io ^hve this opmion, might consider the island
*t' Jamaica as continuing still in its original
tate of a conquered country, notwithstanding
itojst of the Spanish inhabitants had left it: |
nd, if he did consider it in that lifrht, it is evi-
enl that this opinion of his would, in such
iise, be an opinion exactly in point to contra-
ict lord Manstield's doctrine of the king's sole
^gialalive authority over conquered countries.
" And, agreeably to this conjecture, I find,
I Another account of thir« opinion, that sir
r illiam Jones did consider Jamaica as a con*
Mr^l couDtry, and expressly called it to,

and yet denied the king's authority to iropoae
taxes on its inhabitants without the consent of an
assembly. For in another letter of the «anie
assembly of the representatives of the province
of Massachusets bay, written in the same
month of January, 1768, as the former letter
to lord Shelhiirne, and addressed to Dennis
De Berdt, esq. their agent in England, they
apeak of this opinion of sir William Jones in
these words : * There was even in those timea
[the times liefore the Revolution] an excellent
attorney-general, sir William Jones, who waa
of another mind, and told king Charles tbe
second, that he could no more grant a commis-
sion to levy money on his subjects in Jamaica,
though a conquered island, without their con-
sent by an assembly, than they could discbai^
themselves from their allegiance to the Eng-
lish crown.' If this last account of sir William
Jones's opinion is the true one, it is evident
that he considered Jamaica as continuing atill
in the condition of a conquered country, and
consequently that his opinion wiUi respect to
the king's power over conquered countries ia
directiT contrary to lord Mans6eld*s.

" The other opinion which I mentioDed as
material to our present enquiry was that of Mr.
Lechmere, a lawyer of consi Jerable eminence,
and esteemed a man of great integrity, wba
was attorney-general to king George the Isf.
This opinion 1 bad occasion to mention to yon
in our last conversation, just before I begun
the account of the imposition of the duty of
four and a half per cent, upon goods exported
from Grenada by the king's letters |iatentof
July, 1764. It is shortly thus. When the
British ministers of state, in the year 1717,
had a design of advising the king to impose, by
his royal prerogative, the said duty of four and
a half per cent, on goofis exported from the
island of Jamaica and the little islands of Ane-
gada and Tortola, which are situated at a small
distance from 8t. Christopher's, they consulted
Mr. Lech mere, the attorney -general, U(>on the
legality of the intendeil measure. And be,
thereupon, honestly told them, * that the per«
son who should advise his majesty to take such
a step, would be guilty of high treason.' But
I do not know whether he considered Jamaica
as still continuing in the state of a conquered
island, or not. If he did, this opinion of bit
would be an opinion exactly in point to our pre-
sent subject, and directly contrary (as well as
the opinion of sir William Jones, according to
the la<(t account of it,) to the doctrine of lord
MansAeld concerning the sole legislative an-
tliorily of the crown over conquered countrief.
** These two respectable opinions, against
the said supposeil legislative authority of tlia
crown, may fairly be set in opposition to tbe
opinion of sir Philip Yorke and sir Clement
Wearg, so much relied on by lord MaiwfieM»
in support of it.

<* You now, I hope, are satisfied that lord
Mansfield's peremptory asaertiona, ' that «•
doubts bad ever been entertained by
lawyerfy btfora the said caae of Caai

M9]

CampheU v. HaU.

ttd Hall, coDceraingf the king^'s solo legisla-
life authority orer coaqaei'ed countries/ are
Bot quite agreeable to the truth, but that some
lawyers of character in former times have
prrsumed to entertain a ilifTerent opinion, and
cren to tell the king's ministers that they diil
n. And consequently you should shake off
fipom your mind that over-great awe and de-
faeoce to that learned lord's opinion which the
persiDptory manner of his making those asser-
tisoi bad impressed upon it, and should boldly
Tcuiire to entertain that opinion upon the sub-
ject which, upon the full enquiry you have
OMde into it, appears to you to be the roost
RBsoiiable.

" F.-— I will endeavour to do so, as far as T
vm aUe. But, I protest, I find it difficult ; as
his aotboritative manner of making these as-
miioos does still retain some influence over
■y Bund, notwithstanding you have now con-
viMed me that they are neither altogether
troe, nor decisive of the matter in question, if
tbcy were true. However, upon the whole, 1
ds veotore to conclude that the reasons be has
given in support of his opinion, < that the king
alsoe has a legislative authority over conquered
cooBlnes,' are far from lieing sufficient to
■sintain it. I should therefore continue to
boM the opinion which at first appeared to me
Bast restonable, to wit, * that the king and par-
fiaaicBt conjointly, and not the king alone, had
a right to make laws for the inhabitants of con-
jliened coontriifs,' and to impose taxes on them,
m it were not tor one remaining difficulty, con-
ctnuDg which I must desire the assistance of
your opinion. This difficulty is grounded on
Ae authority which lord Mansfield's doctrine
■ay, perhaps, derive from the very circum-
stance of its being bis opinion, and having been
delivered by him, as such, in his judicial capa-
city on a question that brought the subject re-
giiarl^ before him for his decision ; more
specially, if we consider the silence of the
•Ihcr judges of the court of King's- bench,
wben lord Mansfield delivered this opinion, as
isipljriDg their concurrence with him in it.
For la this case it may be said, that, on the
only occasion on which this doctrine * of the
ktsig*! sole legislative power over conquered
eonntriea' has been brought into question before
an English court of justice, it bus been decided
in frvour of the crown by the unanimous opi-
nion of alt the judges of the court ; and that,
whatever the law might be before, such a deci-
sion must be considered as settling it for the fu-
tnre in favour of the said power of the crown,
ormnot be a peremptory guide to all future
emirlB of justice in their decision of the same
Mention, as ofien as it shall occur before them.
I should he glad to know, therefore, what you
chink of tilts conclusion, and whether by the
rnlcs oboerved by English courts of justice
with respect to points already decided by the
«MC or other courts, such a question ought to
ho esnoidered no having been decided for ever
!• iMmar of the crown by thin oiM decision of

A. D. 1774. [350

lord Mansfield and the court of King's-bencfa.
If it is to be so considered, I must needs think
that lord Mansfield and his brother judges will,
by that opinion of theirs in their judgment on
the case of Campbell and Hall, have, indi-
rectly, made a law of the most capital import-'
ance to Great Britain and the British domi-
nions.

«« E, — ^Your question is a very proper one,
and not a very easy one to answer ; there being
no express law, nor even constant usage, that
ascertains, in all cases, the degree of deference
which is to be paid by courts of justice to the
former judicial decisions of the same or other
courts of justice. And we have seen lord
Mansfield himself, since he has been chief
justice of the King's- bench, and his brother
judges of that court, in more than one instance,
determine a point of law in a oMinner directly
contrary to the determination of it by all the
judges of the same court of King's-bench on
a former occasion, though the said former de-
termination had been acquiesced in by the party
against whom it had been made, and had been
taken and reputed for good law ever after, till
the new case in which lord Mansfield and the
other judges of the court of Kiug's-bench de-
termined the point in a different manner. 1
particularly remember an instance of this kind
m a case in which the names of the parties were
Wyndham and Chetwynd, containing the qua-
lifications necessary to the three witnesses who,
by a certain statute made to prevent frauds, are
required to attest and subscribe a will of lands,
in onler to its validity. But the ^^eneral rules
concerning the authority of judicial determi-
nations of points of law I take to be as fol-
lows.

** In the first place, where a point of law has
been agfitated in ail the courts through which
it may be carried by ap^ieal, or writ of error,
and has been finally determined by a judgment
of the highest court of appeal, that is, of the
House«of Lords, (for that is, in Great Britain,
the highest court of apfieal both in matters of
law and equity ;) such a determination is
reckoned to lie of almost as much authority
with respect to the point so settled, as an act
of parliament ; or, at least, it is so considered
by all the ordinary courts of justice, though,
perhaps, the fJouse of Lords itself might, on
another occasion, if they thought there was
very strong ground for it, determine it in a dif-
ferent manner.

** In the second place, uhen a point of law
has been fully ap^ued, and solemnly deter-
mined by one of the four great courts of West-
minster-hall, that is. the court of Chuncery,
the court of King's-bench, the court of Com-
mon Pleas, and the Court of Exchequer, and
the party, against whom the judgment has
been given, has acquiesced in it, and has for-
born to bring an appeal, or a writ of error,
into the next higher court of justice, fo which
the right of revising the judgments of the first
court, and correcting the errom in them, be-

2

351]

15 GEORGE III. The Case of the Island of Grenada— [35f

Ionics ; and such forbearance does not arise
trniD the poverty' or inability of the said party
to bear the expence of prosecuting^ such writ
of error, or appeal to the next higiier court ;
such a determination acquires a great dpi^ree
of respect and auUiority in Westminster-hall,
and is usually adopted and followed by the
courts of justice in their subsequent determi-
nations of the same point of laif , as often as it
comes before them. Yet it is not of quite so
great authority as a determination of the House
of Lords upon a question brought there in the
last resort : and we have sometimes seen such
determinations overturned by subsequent de-
texminations of the same or other courts of jus-
tice in Westminster- hall ; as was done in the
eourt of King's-bench in the case of Wy ndham
and Chetwynd, which 1 just now mentioned
to yon. Yet such overtuniings of the former
lolemn determinations of courts of justice are
Tery unfrequent, and are not in general approv-
ed of, though, perhaps, in some very strong
cases, where the former determinations have
been made upon very wrong principles, they
inay be justifiable.

** In the third place, when a matter has been
fully argued before one of the courts of West-
minster-hall, and a solemn judgment has been
given u|K>n it in favour of one of the parties;
and in the said judgment more than one point
of law has been determined in favour of such
party ; and the losing party acquiesces in the
said judgment, and forbears to bring a writ of
error for a reversal of it in a higher court of
justice ; the determinations of such points of
law acquire a consitterable degree of weight anil
authority in the estimation of lawyers and sub-
sequent courts of justice, but yet are not quite
so much respected as the determinations in the
two former cases: and for this plain reason,
that, as more than one point of law are deter-
mined at the same time in favour of one of the
contending parties and against the other, it is
uncertain, whether the losing party, when he
acquiesces under the whole judgment, and
forliears to bring a writ of error in a superior
court to get it reversed, acquiesces in all the
points of law deteriuiiu'd n;;ainst him, or only
in some, or one, of then) ; bocausc, if only one
of them is rightly determined a;;:ainst him, the
judgment against liini wiMitd be affirmed u|Hin
a writ of error, as much as if all tiie points
bad been so determined. This nncorlaiuty
concerning the particular |ioints of law, in the
detcrnii nation of which the losing party may
be supposed to acquiesce, takes from the deter-
roinutioiis of each of the points of law, that are
determined against him, some p:irt of the
weiuht and authority which snrh dftcrmipa-
tious would otherwise derive trom his acqui-
escence.

" And fourthly, if a matter has hern fullv ar-
gued before a court of justice in Weslmiusier-
hall, and a solemn judgment has been given upon
it io favour of one of the parties ; and in the said
iudffmeDt one, or more than one, point of law
li*. hPvii dctenaiQcd ia bis favour, and anotber

point, or points of law have been determined
against him ; and the losing party acquiesces
in the said judgment, and brings no writ of
error to reverse it ; such an acquiescence of
the losinff party can operate as a confirmation
of only those points of law which are deter-
mined against him, and not of those which are
determined for him. In such a case, there-
fore, there will be several determinations of
points of law, all deliberately made by the
same ju<lges and in the same cause, whicli will
have different degrees of weight and authority,
namely, the points determined in favour of the
losing party, and the points determined against
him. For the points determined in favour of
the losing party will have that decree of weight
and authority which arises from the respect due
to the learning, abilities, and integrity of the
judges who have decided them, and to the de-
liberate manner in which they have been cod*
sidered and discussed before they were decided ;
but those which are determined against the
losing party will, besides the weight and au-
thority arising from the foregoing circum-
stances, be entitled to an additional degree of
respect arising from the acquiescence of the loa-
ing party, which will shew that he, and his coun-
sel learned in the law, despair of having those
points determined in a difiercnt manner, if they
were to bring a writ of error fur the purpose.

** These seem to roe to be the different de-
grees of authority which are attributed bv the
English courts of justice to the sforesaiu dif-
ferent sorts of judicial determinations of points
of law by former judges : which, I presume,
you will agree with me in thinking reasonable.

'* P. — 1 enter very readily into these distine*
tions between the different sorts of judicial de-
terminations, and think thein very natural and
reasonable. And, according to this gradation
of ihem, it seems to me that the opinion of lord
Mansfield, delivered iu the case of Campbell
and Hall, concerning the sole legislative au*
thority of the crown over conquered coun-
tries, (even supiiosing the otiier jvidges of the
King^s-bench to have concurn'd wiili him in
it,) must be placed iu the fourth, or lowest class
of them. For in that caiie there is no room to
infer any thing, from the acquiescence of either
of the parties, in fuvour of that o|uiiioo. For,
as to the defendant Hall, who was the losing
party, all that can be inferred from his acqui-
escence in thejudpnent given against him in
that action is, that he and his counsel acqui-
esced in the opinion of the Court U|N»n the 2d
Iioint, * of the immediate operation of the
king's proclamation of October 1763, as a bar
to the exercise of his antecedent legislative an*
thority,' and despaired of having it otherwise
determined, if he should have brought it into
the llunsc of Lords by writ of error. And at
to the plaintiff Campbell who gained his caufe,
he could nut bring a writ of error to reverse %.
judgment that was given in his favour. 8u tbal^
the opiniou of lord Mansfield u|Nin that 9f^
pdnfc mnit, indeed, be conndeRd as the Cfin^^

)33J

Campbea v. HM

nf that Ivarned lord, *ni), p«rha|i8, of tbe wIioIp
court of Kiii|['i- bench, upuu m {luint thai liad
bfen tully ar|fiied belbre llifm, aaJ muit b«
CDiitled hi all tlie reatircl wliicli i* due id it on
ihu accnuni, l>ul canout derive any aildiljonal
wriijchl I'rum Ibe acquiencencp of cllher of the
juiitt tiaHcr it ; iliat U, il inuvt lie a jaJicial
dccJMoa of tlie lowetl of llie four claniea ot
juJicial ilMiiioua which you have been just
aow ileacribiDg.

" £. —It is e!»clly no. The ojiinioD of lord
Hanilield i1|iiid tliai hrit |HjinI li a derialon of
llial fourth and loweit clii«. And ilierelbre I
nipiMxe that il wuulJ not be cnuaidemi liy tbe
Mne or any olber cuurt ol' jiitlice in Weat-
■ioatef'hall, on soy other occmioo iu which
Ibc lama ptiiot, ' of the liing'a te^pslaliTe
Mlhnriiy OTcr conquered couiilriea,' ahould
Kcur, IB beiog alKtoIulely biudiii){ and Jeci«ve
•f Ihrqiiealjou, lO aa to be enlitled lo the oio-
firmtiiuu «f such court ol' junlice, ihouffh the
rrasona no which II was fiiunded ahoulil be rn-
IIHy disapproved liy the jui)|;es of which such
court aliould be cain)iosnl ; Hince we hate teen,
io the case of Wyudham ami Chelwynd,
(■hich was detercolned by lord Mannfieiil him-
•rlf) that even a decision ol'the sei'oiid claaa is
sot always so cDniiilvreil. llul yet it would
certainly have considerable wei)j;hl niih the
Judaea nf surh lubseqiienl cuurt of justice, so
ai lo indure theni tu ifive Jud^raeiit agreeably
to it, if they were only In a slate of doubt coo-
cn-uiny (he validity of ilie roKons on which it
liad beea (grounded, and did iiol Ihoroughly
ilJMppmve them. So ihat I am afraid we must
allow, that (weak and i11'f>jouui]ed as it aji-

Ears to you and me,) ihl* oiiiniun of lord
antfielil, conceruloL' ilie l>iLi)!'a sole teglsla-
llve jioner over cuncjircrecl cuiiiilries, Is a tem-
porary juiliclal delernilNsti'in III' thai quealioD
IS favour ofiheiirerognliieuf the cmwu. But,
■a you rii{li1ly observed, il iH a deeision of the
fuiwth, or loweat, class of the aeveral sorts of
jwticial ifeterniioalinn* above described. — But
I bo)*e your cariotity is now satisfiL-d with re-
sptct lo this imjioriant qiiestiim of

I think, we have very aufficiunlly discussed.

*' F, — My curiosity ii, indeed, satisfied od
Ikia subject : but ttie pleasure I hare had Id the
raquiry is allayed wiib suinu mjjiliire of un-
caimras arising from tlm wcii;ht thai may be
thought (o b4-U>og lo that o|>lnion of lord Ulaos-
fidd. Fur Imw can any lover nf liberty and
llie En|;lish coDSiitulion (nt I must sincerely
pnfeaa myaFli' to be) not b« Mirry lo And, thai
the only judicial decision thai has beeo made
ma the aubject, baa ascribed to lb« ctown

A. D. 177*. [354

alone, without the concurrence of the parlia-
meiil, a power to make laws and impose laxei
at pleasure on (he inhabitants of all cuunlric*
that are conquered by the Urilikh anna f —
I therefore hope, either, Ihat the law upon
this Hubjeci will soon be altered by aa exprna
act of iiirtiameiil for Ibe pur|)nse, or that tha
ijucslioli may aKain be brought under llie con-
aiilerstion of some court uf justice, acid ba
there deleruiined in a dilFcrcnl manner, as lbs
CHEC jubt now mealioned, of Wyndliam and
Clietnynd, was determined, by lord Mans^ld
liiintielf and the other jud^ra of Ihe King'i-
bencb, in a manner direclly contrary lo ■
former delerminalian nf ihe same point of law
in the Mine cuurt of Kioj^'i-beorh, ihouch the .
■aid former delerminsliou had been a decision
of the secoiul daaa. Fur it may be of terrible
consequence lo Ihe freedom of the Enulish

permanently in Ihe posseasiuo of the crowu.

'■ F. — I heartily join with V 00 in ihesewisbes :
but doubt a little whvlher lliey are likely lo he
soon accnmplished. Uawe*er,if lUli queatiua
were tgaip lo come before a cuurt of juatieea
and the ;iierils of the cause were lo Itiro ainglj
u[ion the decisiun uf il, (which wa* not ihecata
in ihe action of Campbell agBioal Half,) I ca*
hardly prrsiiarle myself thai the jud^ of any
cuurt in \Vestmiuii(ar-hsll would thiok tbein-
selves bDinid to determiue it sgreeably to hud
niaoaiield's opinion, mervly Ibmugh driercnca
lo thai opinion and without any new reasou ■
thst should influence tlieir own judgmenU iii
iWvour of it ; seeing that tha reasuoa alledgeil
by lord Maailield in support of it bi¥e ap-
l>eareil, upon examinatiuu, to be M very wtak,
and thai lis aulhurity ai a jadicial tleciitoa (i
two deKrF(» lower than that of tha cue in the
court of KioK's-broch, above alluded to,(vi'hich
iscalldl llieoaseof Ansly aadDowaing.^wbick
iieil by tbe sams coort in the syb-
uf Wyndbam and Cbetwyod, that

been a decision uf tlie second claaa,

and Ibis being only of the fourth. But Ihl* ie
all mstter of conjecture, anil consequently not
worthy our further consideration." Caoadiio
Freeholder ; a work uf which Dr. Watson, tha
erainenl Uibop of Llandaff, haa very truly said
(Note to Assize Sermon preached at Cambridg*
in the year 1769) that it is replete with MUud
and perapicuous reaaooiug.

With rnprcl to the application of the re-
venue arising from Ihe four and a half per crnl,
duty, see Bome Ji»UMiii»i in ihe House of
Lonh nn April 0, 18113, and iti the Houfo uf
Commonion March 30, lS03;on July2, ISOi,
Pari. Deb. vul. 3, p. 002, and on Hay 8, 1800^
Pari. Dd,. vol. U, p. i09.

sequen

Pt^vouyx.

SS5j

16 G£ORGE III.

Trial (^the Duchess ofKingsion,

[m

551. The Trial of Elizabeth^ calling herself Duchess Dowager
of Kingston, for Bigamy :* before the Right Hon. the House,
of Peers, in Westminster-Hall, in full Parliament assembled,
15th, 16th, igth, 20th, and 22d Days of April: 16 Geokoe
in. A. D. 1776. t [Printed under an Order of the House of
Lords.]

Monday t April 15, 1776.

Id the Court erected in Westmiuster-hall, for
the Trial of Elizabelh Duchess Dovrager
of Kingston, for Bigamy.

About ten o*clock the Lords came from
their own House into the court erected in
Westminster- hall, for the Trial of Elizabeth
docbesB-dovrager of Kingston, in the manner
IbUowimr :

The Lord High Steward's gentlemen atten-
dants, two and two.

* See the Trials ef Mary llloders, vol. 6,
p. 97S, and of Fielding, vol. 14, p. 1327, for the
like offence.

f <* Rex v. Ddgbess of Kingston.

" Mr. Wallace had moved on the part of the
defendanti for a Certiormri to be directed to the
JMtices of Oyer and Terminer, at Hicks's-hall,
In remove into the Court an indictment found
agpiost her, at the sessions there, for bigamy ;
aqd, upon tKe motioDi the court granted the
writ.

" But now lord Mansfield took notice to Mr.
Wallace, that the motion was irregular. For
a defendant has no rii^bt to remove an indict-
ment of felony from Ilicks's-Hall, without the
consent of the prosecutor ; and in this ease
there was no consent, ttierefore his lordship
■aid the writ issued mpraoidi, and must he
ooperseded.

*' Mr. Wallace said, the onl v object of reinov-
iif the indictment was for the purpose of her
being bailed ; but per lord Mansfield, the pur-
pose for which it was intended, makes no dif-
ference.—The nest day Mr. Wallace moved
for a Habeas Corpus, Mr. Justice Aston having
ff ranted a warrant for her apprehension (as had
been settled amongst the parties, as the pro-
pereit method to be taken) upon a certificate of
the indictment beuig Ibund.

*' The warrant and the return to it were road ;
and 4hen Mr. Wallace moved to ball her. He
mentioned th^ suit in the spiritual ooort, npon
the jproceedings there against Mr. Hervey, for
jactitation of marriage^ aud also the pnceed-
ings in Chancery relating to her mannage ; all
these prooeedinga were pnt into oourt, and cp^

The clerks assistant to the House of Lords^
and the clerk of the parliament.

Clerk of the crown in Chancery, bearing Iht
king's commission to the Lord High Steward,
and the clerk of the crown in the Kins's- bench.

The roasters in Chancery, two and two.

The judges, two and two.

The peers eldest sons, two and two.

Peers minors, two and two.

Chester and Somerset heralds.

Four Serjeants at arms with their maces, two

and two.

- - — ■^

sented to her being bailed, as there conid be
no doubt (he said) of her appearance to an-
swer to the indictment.

** Lord Manijkld, Though we should un-
doubtedly have bailed her, it is better to take
it as upon the consent of the prosecutor ; and
she must be bound to appear in the Honae of
Lords when required, to answer to the indict-
ment, as well as to appear in this court. Bnt
as there is nothing aigainst lier in this court,
her appearance here may be dis|>ensed wilh
for the future upon motion, without giving her
the trouble of actually appearing here in court
any more.

" Bail was taken accordini^ly, herself being
bound in 4,000/. and each of her four bail in
1,000/.

<**The recognizance was as follows:—

* England. Duchess dowager of Kingston^

* who stands indicted by the name of £liza«
' beth, the wife of Augustus John Hervey, esq.
' is delivered to bail, upon a writ of Habeaa

* Corpus ad subjiciendum, for her appearanoa
' in the court of our sovereign lord the kiogf

* before the kint; himself at Westminster, on

< the first day of Uie next term, and so frooa

* day to day, until she ahall be discharged by

< the said court, and not to depart the said covrt

< without leave ; and alao for her appearanes

* before our said lord the king in parliankent, to

* answer to an indictment against her for . ft-
' hwy, whenever she shall be therennto

* quired. Bjr the Court. Burbow.'

** I have baerted this recognisanoi^ f
ftisf im, becaoia there was found only a aingli^',
instance of Ibo like» (via. of a remnia|noB 'j
taken in tUa joourt to appear in apniiiMp^^
^- "^IhilQf lbo.|34^.0ri^^ ^

f <^^. "r

S57]

for Bigamy.

The yeoiiiqD*iish€r of the Hoose.

The btrons, two and two, begiDning with
tbeyounffest baron.

Tlie biahopii, two and two.

The viscounta and other peers, two and two.

The lord priFy seal and loni president.

The archbishop of York and the archbishop
of Canterbury.

Wfore the kingr himself at Westminster, on tlie
(bit day of next term, and so from day to day
QDtil he shall be discharged by the said court,
ltd not to depart that court without leave, to
taswer to those things which, on the behalf of
•or said lord the kinf shall be objected against
him ; and also for his appearance from time to
time, until he the said Charles lord Orrery
shall be discharged by due course of law, be-
fore our lord the kinir in parliament, whenever
by our said lord the king he shall l>e thereunto
RQuired, to answer to those things, which on
behalf of our said lord the king shall be there
objected against him." Cowper's Reports,
p.S8S.

Upon occasion of these proceedincfs against
the prisoner in the following Trial, Mr. Har-
grave was consulted on the part of the prosecu-
liofi. With his wonted zeal he composed, pre-
viously to the trial, a most elaborate, learned,
and able discourse ' Concerning the Effect of
Sentences of the Courts Ecclesiastical in Cases
of Marriage when pleaded or offered in evi-
dence in the Courts Temporal,' which several
years afterwards he published in his * Collection
of Tracts relative to the Law of England.' In
tbit discourse he has accumulated a vast maaf
of judicial decisions and legal reasonings re-
tpeeting the two main questions of law which
were made in this case, viz.

1. Whether a sentence of the spiritual court
sgainst a marriage in a suit for jactitation of
■arriage is conclusive evidence so as to stop
the counsel for the crown from proving the
nid nrarriage in an indictment fbr polygamy ?
9. Whether, admitting such sentence to be
eondosive upon such indictment, the counsel
fer the crown may be permitted to avoid the
cftct of such sentence by proving the same to
have been obtained by fraud or collusion ?

In addition to what will be fbimd in this re-
pert of the trial, 1 most refer the reader for far-
ther illustration of the law respecting these
two OQeationa to that treatise of Mr. Hargrave ;
wMch it is to be hoped will be incorporated into
Us valoaMe * JurtsconsuU Exercttatiunes' now
hi course of publ ieation .

Mr. Leach has inserted in his Casea in

CmwB Law a very brief note of this case, exhi-

I Mug the decision of the C^Hirt upon the two

r fBlMoM which f have just stated, and alaii

1^ MP anoilicr qnestiiim whfch was as itated, vis.

""^i — - leeress convieted by her peers of a

sloby is by law entitled to the be-

d|t staniteBi' ao as to exrnae her from

tifaiiMbt, wSthoot being buraed in
Wai MM ib any impritoliBttitr

k''

A. D. 177S. iSSA

Four ferjeaiits at arms with their macea, two
and two.

The aerjeant at arms attending the great
seal, and purse-bearer.

Then Garter king at arms, and the gentle-
man-usher of the Black Rod carrying the white
sUff before the Lord High Steward.

Henry earl B.ithurst, chancellor of Great-
Britain, Lord High Steward, alone, his train
borne.

His royal highness the duke of Cumberland,
his train borne.

The I^ords being placed in their proper seata,
and the Lord High Steward upon the woolpack,
the House was resumed.

The clerk of the crown in Chancery, having
his majesty's Commission to the Lord High
Steward in his hand, and the clerk of the crown
in the King's-b«nch, standing before the clerk's
table with their fares towards the state, made
three reverences ; the flrst at the Ubie, the ae*
corid in the mid-way, and the third near the
woolpack{ then kneeled dowh; and' the clerk '
of the crown in Cbnncery , on his knee, pre-
sented the Commission to the Lord High
Steward, who delivered the same to the clerk
of the crown in the . Ring's-bench to read:
then rising, they nnade three reverences, and
returned to the table. And then proclamation
was made for silence, in this manner:

Sejj. at Armt, Oyez, oyez, oyez ! Our so-
vereign lord the king strictly charges and oopn-
mands all manner of persons to keep aiknco,
upon pain of imprisonment.

•Then the Lord High Steward stood ap, aM
spoke to the Peers.

L.H.S. H is inajestj^'s Commission it abonl
to be read : your lordships are desired to attend '
to it in the usual manner ; and all others ari •
likewise to stand up uncovered while the Conh
mission is reading.

All the peers uncovered theroselvea; and
they, and all otiiers, stood up unoovered, while ,.
the Commission was read.
'* Georgb R,

<* Georire the third, by the grace of God, .
of Great- Britain, France, and Ireland king,
defeniler of the faith, and so forth. 'To -.
our right trusty and right well-beloved cousin
and counsellor Henry earl Bathurat, our chan* \
eel tor of Great- Britain, £reHiiig. Know yo^.
that whereas Elizabeth the wife of Aoirnstni
John Hervey, late of the parish of St. George,
Hanover-square, in otir cnunty of Middlesex - '
esq. I)ef*)re our justices of Oyer and Terminer, '
at Hiokfi'ii-hall, in St. John-street, in audfot
our county of Middlffsex, upon the oath of
twelve jurors, ifoud ami lawful men of the said
county of Middlesex, then and there sworn and 4
charged to enquire for us for the body of the ^
said county, vtaiuls indicteil of |iolytnimy.*and

* ** Piilygaiiiy, or, as it is more fref|ueiiilyf
though imprfv|iei1y, called, bigamy, (which only
means having two wives in succession,) nw-
aista in having a pliihility of wives at tlie samn ^ ^

Itimoi and wna originally conwlered asof ecole*
'I-

»-■

fV

fV

S59J 16 GpORGE III. Trial of the Duchess of Kingston^

feloniousljr marry injBT Evelyn Pierrepont late
duke of Kini^toti, slie beings then inarriei), and
the wi(b of the said Auf^uslus John Hervey :
we, considering^ that justice is an excellent
▼irtue, and pleasing to the Most High, and

[360

beinqf willing that the said Elizabeth of and fur
the felony whereof she is indicted as aforesaid,
before us, in our prefpnt parliament, according
to the law and custom of our kingdom of Great
Britain, may be heard, examined, senteaced.

aiastical cognizance only : thoup^h so early as
the atat. 4 Ed. 1, c. 5, de Bigamis, it was
treated as a capital offence, and ousted of
clergv by that statute. The benefit of clergy
was however restored by the stat. 1 Ed. 6,
c. 12, § 16. And the cnme itself being as it
•eems left of doubtful temporal cognizance, the
Stat. 1 Jac. 1, c. 11, enacts, * that if any
person or persons within England and Wales,
being married, or who hereafter shall marry,
do marry any person or persons, the former
hnsband or wife being alive, every such of-
fence shall be felony ; and the person and per-
Bons so offending shall suffer death as in cases
of felony.' Clergy however is not thereby
taken away ; but by the stat. 18 Eliz. c. 7,
§ 9, 3, the offender, besides being burned in the
hand, may be imprisoned not exceeding one
year: and by sUt. 19 Geo. 3, c. 74, § 3, a
moderate 6ne or whipping, in the manner
therein specified, may lie substituted in lieu of
bumiog ; but not to abrtdge the power of the
court to imprison under any former act. And
now by the sUt. 35 Geo. 3, c. 7, * If any
Derson or persons within England and Wales
Deipg married, do at any time from and aflter
the passing of this act marry any person or
persons, the former husband or wife bemg alive,
■nd aliall be in due manner convicted under
the said act (of Jac. 1,) they shall be subject to
the same punishments, pains and penalties, as
by the laws now in force, persons are sub-
JMt to, who are convicted of grand or petit

** lliis by stat. 4 Geo. 1, c. 11, (and stat. 6
Geo. 1, G. 223,) may be transportation for seven
years in lieu of burning or whipping. But
though the stat. 35 Geo. 3 mei-ely re-enacts
the enacting part of the statute of James, yet
it also virtually includes all the exceptions
contained therein and after mentioned, for the
title of the act is * for rendering more effectual
the statute 1 Jac 1,' and it begins by reciting
that ' whereas the punishment of persons con-
victed of felony under the sutute 1 Jac. 1, has
not proved eflectual to deter wicked persons
ftom the offence therein describetl, be it
enacted, &c.' and it afterwards attaches the in-
creased punishment upon such as are convicteil
of the offence specified under the said act.

" By.§ S,(of stat 35 G. 3,c. 67,) if any per-
son ordered to be transporteil by this act shall
be afterwards at large within Great Britain,
without some lawful cause, liefore the expiiv-
tMMi <»f the term, &c. every such person lieing
thereof lawfully convicted, shall be guilty of fe>
loBjr, and suffer death without beneSt of clergy .

^* By J 4, of 1 Jac, 1, c. 11, no attainder Ibr
uy felooy by that act shall work oorrliptton of
blottd, loai of dower, or disheriioB ^ hen.*'

SMl*il1iBsorihcQrMriii^iariAt\|

^^•- <•'

m*

:X.

mRj

i.v

What Mr. East in the above passage has
said concerning the statute 4 Ed. 1, c. 5, de
Bigamis, is not altogetlier correct. That sta-
tute has for its object the case of bigamists in
the proper sense of the word who might be
convicted of felony ; and it does not nt all re-
late to polygamists. Possibly Mr. East was
led into the incorrectness by an error in the
quarto edition of the Statutes. This error had
been pointed out by the very learned and aoco-
rate annotator upon lord Coke'8 first Institute,
in the following note to lord Coke's fourth kind
of disparagement, sc. * propter jacturam privi-

* legii,' Aec.

'^ The word ' bigamy' is frequently used to
describe the crime of marrying a aecond wife
during^the life of the fimt ; but the proper name
for this offence in our law is ' polygamy,' and
with us a bigamist is a man who either marries
a widow, or afler the death of his first wife
marries a second time, in consequence of which
he formerly could not claim the benefit of
clergy. Ttiis denial of the benefit of clergy to
bigamists was in consequence of some antient
papal constitutions and canons of councils
against admitting bigamists into holy orders ;
a prohibition, which, however s|>eciuusly ile-
fended by texts of scripture, wholly originated
from the injurious policy of the church of
Rome in discouraging the marriages of the
c1erg3',and lead the way to the complete estab-
lishmentofcelibacy amongst them. See Levit.
c. 21, ¥. 13, 14. 1 Tim. c. 3, v. 19, 8umma
Concil. per Mirand. fol. 4, a. 119, a. 168,
b. S30, b. Bingh. Ant. Christ. Cb. b. 4, c. 5,
Tayl. Elem. Civ. L. 295, and the word ' biga-

* mus* in the index to the Corp. Jur. Canon, ed.
Pitlueor. However, the exclusion of bigamists
from the benefit of clergy was not entirely ac-
complished till the council of Lyons ended the
doubts whirh before prevailed, by {lositively
declaring bigamists, * omui privilegio clericali
' nudatos.' Jt appears, that this constitution
was immediately received in England ; for the
statute of 4 E. 1, de Bigamis, takes notice of it,
and explains how it should be construed, by
directaiig that it should be understood to com-
prehend bigamists before, as well as those who
became so af\er. See 4 E. 1, c. 5. 3 lost.
S;73. 3 Hal. Hist. PI. Cr. 372. 3 Hawk. PI. Cr.
b. -2, c. 33^ § 5, and Barringt. on Ant. 8tat. 3d
ed. 73. When the benefit of clergy by being
allowed to all who could read, was extended to
laymen as well as persons in orders, the reason
for opiting tngamisis of clergy in great mea-
sure ceased ; but uotvi iihatanding this, the ex-
ceptioD of bigamy continued till it was takefi- '
away by the atatute of Edw. 6b Tile poiDlkir ^
out exactly the appropriated sense of the wonr
* higifliy\iDOur law waa4lw JQBore

« «

I

561] Jut Bigamy.

■od adjudfred ; and that all other thiDi^a wbinh
are oecetnry in this behalf may be iluly ex-
tire to it. We find a remarkable instance of
ihta in the qnarto edition of the statutes, the
editor of which, in a note on the 4 E. 1, c. 5,
nsfcre to the 1 Jam. 1, c. 1 1, as makinif bi|;amy
a felony.^' See notes to Uargr. Co. Lilt. 80, b.

I will here insert the enactment under consi-
deration, as it is exliibiied in the authentic
•dition of the Statutes.

'* 4 Ed. 1, c. 5. — Statutum de Bitfamis.

«• The Statute of Bigamy.

«* Ex MS. Harl. 395, f. 80.

" De Bicramis quos dn*s pp" in consilio Lu^-
duD* om'i |)'vileg' clicali p'vavii p' constitucom'
inrie editam et un' qiiidam p'lati illosqui efT'ci
fiu*int bigami ante p*d'cam constitucom'qn' de
frioo' rettati fiu'int tanq'am clicos exi^j^u't sibi
iiyandos ; concordat nni est et declaratum co-
ram R' et co'silio suo q*d constituco' ilia intelli-
genda est q'd si?e eff 'ci fiu'int Biifanii ante
pM'cam constitucom', sive post dereto' non
libentV pM'cis pMatts : Immo fiat de eis justicia
licut de laicis.

** Concerning; men twice marrie<1, called Bi-
fimi, whom the bishop of Rome, (more cor-
reeily, our Lonl the Pope) by a constitution
ma<le at the council of Lyons, hath excluded
from alt clerks prifilege, whereupon certain
prelates, when such persons bate been attainted
tor felons, have prated for to have them deli-
vered as clerks, which were made Bi^mi be-
fore the same constitution ;" (more correctly,
when SHch persons, as were twice marrie<l be-
fore the same constitution, have been called in
^untion for felony, have prayed for to have
tliem delivered as clerks,) ** it is agreed and de-
dared l>ehire the kiii^ and his council, that the
ume constitution shall be understood in this
wise, that whether they were Bisfanii before
Ibe same const itutinn, or after, they shall not
from henceforth be delivered to the prelates, but
justice shall be ncecuted upon them» as upon
other lay people.','*

* ** A canon of Pope OreiBfory the 10th had

taken away the benefit of clergy from a bii;a-

mist; which having; l>eeu adopted in England,

the cler|;y iiad a doubt, whether a person in

hMy orders, who had l»een ffuilty of this offence

■wfore the canon tuok place, might claim the

isduli^nce of the common law ; this statute,

tbervfiire, retrospectively declares, he shall not

be eniiiied lo such iMr^vile<re. Prynne [Records

*ol- 9, p. -151.] tSKes notice of two mixtakes

■lade by sir Eiiward Coke. The first relates to

Ibe name of ihe Pupe, who made the canon ;

aad Uic seciind to the preamble, which is mis-

'••t'd. The Pope who summoned the council

MLyooft wma Gref^ory the lOih. and not H«mi-

%«*Jbe8ih,wbowu not elected till tl>e 28th

f Umd^ iHtj.aod consequently not till

^^^^''SSLZr" *^ ^^ »t«tutc was

A. D. ma.

[ast

erciseil and executed ; and for that the office of
High Steward of Great Britain (whose presence

In the Appendix to sir Sanuiel Romilly'e
most able, valuable, and instructive Tract, enti«
tied. Observations on the Criminal Law of
England, (Note M,) are the following very judi^
cious observations on this offence :

**The crime of bigamy comprehends twe
species of offences, ditfering greatly from each
other in their character and effects, and Xn their
degree of moral guilt; and the circumstances
which mark the distinctions lietween these dif«
ferent offences are clear and unequivocal. If
the atrocity of a crime is to be measured bj
the extent of the wrong done to rhe person
who is the victim of it, few crimes can be moi« •
atrocious than that of a married man, wlio, by
representing himself to be a bachelor, prevaiff
on a modest woman to become his wifi?. He
possesses himseT by fraud of her person, know- *
ing that he may at any moment dismiaa btr
as a prostitute from his bed ; and nothing can
exceed the horror she must feel, whenever, tlie
secret of his first marriage being divulged,
she shall be awakened to her real situation, and
shall find herself despoiled of her honour, and
that the children she has borne are bastards
and outcasts. The real nature of this crime is
that of a frauduleut and most agii;ravated se-
duction, effected under colour of law, with all
the solemnities of religion, and under auch dr-'
cumstances that no prudence or caution could
effectually guard against it. But be, whO|
before his second marriage, apprizes the womsM
that he is already a husband, does htr no
wrong. His offence is one to the state slone,
and consists in nothing but the puldic scandal .
it affords. The bigamist, who hail concealed
bis first marriage from bis victim, is equally
guilty of this outrage on public decency, and
has besides done one of the greatest poMdble
injuries to an individual. It resulta from these
considerations that in a woman the criute of
bigamy can never be so heinous as in a man,
and thai in a man the heinousness of the crime
consists altogether in the concealment of tbe
former marriage. Mr. Justice Btavkstone
however, not adverting to those dislinclions,
tells us that bigamy ' has been made felony
by reason of its being so great a violation of the
public economy and decency of a well-ordered
state.* * It is that,' he suys, * which never*^
can l>e endured under any ratiiinal civil estab*
liahnient ; and, in northern countries,* he ob-
serves, * the very nature of the climate seems
to recoil against it.' Comm. vol.4, p. 163.
But he does not even glance at the injury done
to the woman, who suffers from the crime:
and even the more phili»sophicBl author of tbe
* Principles of Penal Law,' deiines |Kilygaroy
only to be a * Kross species of adu:tery, ag-
gravated by the profanation of a reUgions rite/
p. 105.

*^ Althongh, aa has been slreadv observed,
this is in women a crime of much less magni-
tude than in men, yet tiotil tbe stat. of S

■A

-A.

i>tt

tes]

16 GEORGE Iir.

Trial t>fthe Duchess of KtngUoir,

[%1

in Ibb bcbalf ts required) U now raeint (•■ ve -
KTwinlbriDed) we, very much can6dii3^ in your
flddiiy, prurience, iirovident circumipeciion,
Uil induilry, have tiir this cauie DTriiJned «nU
conttimieil you SiewBnl of Great Briliin, to
be*r, exreute inrl exerciw fnr ihls time the Riid
office, with all lliingi liae ami Lelongintf to tbe
seme <iflice in tliii behalf: anil therefore we
commBud y«n, ihat youclitigentty set alioulihe
nrenilwa, ao'l for lliii lime do exercise and
eSFCUit wikti efTect all ihnae thinK* which be-
|ani( in 1l>e ufiice o1' Steward of tirent Itritain,
and ubicb are required iD tbii bebalf. In wii-
nen whereof we have caused ibeie our letteri
to be made paienl. Wiioew ourtelf at \Vf«-
niotier, ibe IStb day of April, in tbe Ifltb year
0t' our Ttign.

" By \£e ILiNO himtelf, ligoed wilh hi* own
feud. YoRKB."

Sfrjnnt at Am$, God «»e tbe bins'!

Thrn Garter, and the |;ent1nnBn-twbpr of
tbr Black Riid, after three re* en- noe«, kneelinif,
JMnily urnvnled ibe while ilalTto hii ^race tbe
liocil Hi|[b Steward ; and ilien his gnce, at-
tended by Garter, Black n<>d, and ilie Purse-
bearer (mnkia^ hi* priiprr reterencea towards
tfaa throne) reiiiaveil frmn Ibe wual|'iicb lo an
■rmed diair, vrbtch was pbierd on the upfwi^
mcnt alep but ntie iif the throne, aa il was pre-
pared fnr ihal |ijr[H»e; and then seated bim-
nll' in Ihe chair, and delivereil the staff to the

Kstleman iiilier of ihe Black Rod on his riuht
iid, the Purae-besrer bokting^the puracon bis
left.

Ckrk of Ike Cronu. Serjeant at Arms, make
pmdamaijon.

Stij. at Arm*. Ojfi, ojn, ayes! Our *o-
vereieii lord the kin^ siricily char^rg and com-
nsanu at) manner ut jienwiis to keep silence,
apon pain of ifflprisolinient.

Then the Clerk iif the Crown,by direction of
- Ihe Lord High Str ward, read the Certiorari, and
tile Return lliereuf, together wilh the Caption
of tbe tndietment, and tlie Indictment ceniGrd
Iheictipen, B^fiiinal Eliisbctb ducb est 'dowager
af KingitoB ; ia h»ev«rha:

" Geor^ tbe third, by Ihe ip^ce of God, of
Great Hrilsin, Fr«Dee, and Ireland kini;, de-
fender nf the falih, and tu forib. To our jai-
GcFS of Oyer and Terminer, at Hicks's-hall, in
' Bt. Juba-ntmt, in and fiir our county of Mid-
dleaes, and lo every of tbem, meeting. We
baiu^ wilting, for certain reasons us thrreiinlo
Basing, tbst all and singnlar indiclraenta of
«baiaoe*er iclnoiea whereof Eliaabclb calling
beiwlf ducbea^'do wager of Kingston, by ilie
same of ElisKbelh ibr wih of AugiMtus John
|I»r*ey buoflhe parish of 81. George, Han-
ever-squire, in the county ot Hiddleaex, esq.,

rity to women) pasaed, it Waa puphhaMe
Mb pftaJafi wub diiih, tai a m^^
fe bnr^ !■ Ifci hiidi, ^ ■ -

is indicttd before yon (aa Is said) ba datenninad
tiet'oreusin ourpariiamont,and aot ebcwbere;
[la curnntand you and every of yon, that yon,
or oni: of you, do send under your seal*, or
iinikr Ihe seal of one of you, before ua in out
jiriHt^ni parliament, iromediately after Ihe re-
(;ei|)t of this our writ, all and siogalar tbein-
dJcciTii-nt* aforeiaid, wiih all Ihinga touching
lilt; s^.me, by wbatiioeTer name lEe said Eli-
zalivili \t called in Ibe same, tO|{elher wilh Ibis
vtTil, tliil we may cause I'urlher to be done
litcrGQn what of right and according lo Ibe law
and custom of England we shall aee Gt to lie
dun a. Witness oiinelf at Westmiiisler the
lltlidayof Noveuber, iu tbe 16tb yearof uur
reign, YoBKX."

'■ To Ibe Jualicea of Oyer and Tenninar,
at Hicks's-ball, in tit. Jolin-ktreel, in and fitr
the county of Uiddlesex, and lo every of tbeis,
a Hrrii df Cerliorari lu certify into tbe upper
liouEe of parliament tlie iudictmcut found
Bicainst Ebzabeih callinK herself duclwaa-
dciwa)rer nf Kingston, by Ibe nsnie of Eliiabelh
ivilo iif Augustus John Hervey, for bigamy,
rtiiirniktjle iminedialcty iMl'ure lbs king in par-
lianieol, — By order o I tbe Lords apirilual aad
lentpiiral iu parliament assembled. Youts."

The

" The Answek of sir John Hawkins, knL ona
of tbe justices within- written.
• ■ Miiitim*. Be it remembered, that at tba
general srssion of Oyer and Terminer of our
lord Ibe king, holilen lor Ihe eonnly of Mid-
dlesex, at Bicks'a-bal!, in St. John -street, in th*
said county, on Monday the 9lh day of Jann-
ary, in llie IStb year of tbe reign of our sort-
;n lord George tbe 3d, kinir ofGreat BrilaJB,

r Jobit Hawkins

knL,

Cnx, Oarid Wilmol, Jobu Breltell, eaqs.
anil others their fellows justices of our said lord
Ihe kins, assigned hy his msjesty's leileia pa-
leni under tbe great seal of Greal-britaln di-
rected la same justices before named, and
nlbets in tlie said letters named, to cnquira
nvMe fully the truth hy Ihe nslli iif good and
iBu fill men of Ilie sakT county of Mlildlesex,
siiil byoiher ways, means, and methods br
Miiluh \\n-j shall or may belter knnw (aa weU
nllliin liberlies as nilhoul) by whom the tmtta
ulthe niallerniay be belter knnno, of all trea-
sons, iniiprisioiiH of treaaon, imnrreeiiona, r».
bellions counterfeit in gs, clippings, WBBbinga,'^
talse coinings, and nlber ralsikie* of tbe money ■
of Great Britain and other kiogdoma and d^
miaioiis wbalsoever, and of all murders, feto^
nies, manaUugfaters, killings, buiglariee, npM^
of women, unlawful meetings, cnneaniieMi''
tinUwrul nttering of wnnia, asaembliea, tf^* — ■
prisions, eenlfalwacies, hlar allcgMione,, ft

paases, r*—- 4mIb. MfifiiM aai^^WI •■

for Bigami/.

Iiin tlie cooDty aforesaid (as well witli-

s as without) by whomsoever aud in

iner soever done, commiUed, or per-

and by whom, or to whom, when,

after what manner, and of all other

id circumstances concerning the pre-

id every of them, or any of them,

manner whatsoever; and the said

■nd other the premises to hear and

i according to the laws and customs

id, hy the oath uf John Tilney, James

Kicbard Phillips, Samuel Stable,

iird, William Hilliar, Paul Barbot,

Weatherill, Thomas Waddell, John

Samuel Baker, Thomas SherifT, John

, Thomas Tanton, John Goodere,

smas, and Robert Davis, gentlemen,

, lawful men of the county aforesaid,

sworn and charged to enquire for our

the king for \n^ body of the same

it is presented in manner and form ai

y the iDdictment and schedules here-

!xed. Butler."

ge the third, by the grace of God, of
tain, France, and Ireland king, de-
the faith, and so forth. To our jus-
[)yer and T(*rminer, at Hicks's-hall,
no-street, in and for our county of
c, and to every of them, greeting,
by our writ we have lately com-
011, and every of you, for certain rea-
or one of you should send under your
the seal of one of you, before us at
Iter, immediately after the receipt of
all and singular indictments of what-
'eapasses, contempts, and felonies
Elizabeth the wife of Augustus John
esq. was indicted before you (as was
II all things touching the same, by
;r name the said Elizabeth should be
'rein, together uith the said writ to
tcil, that we might further cause to
lereon what of right and according to
id custom of England we should see
one : and we do, for certain reasons
nto moving, command you aud every
lat you or one of you do wholly su-
hatsoever is to be done concerning
lion of that our said writ ; and that
>ed to the determination of the tres-
mtempts, and felonies aforesaid with
^itioQ which to you shall seem right
'ding to the law and custom of Eng-
withstanding our writ as before sent
eded for that purpose. Witness Wil-
I Manstitld, at Westminster, the
linl day of May, in the fifteenth year

ared 13lh June 1775. C. E. By the
By rule of Court. Burruw."

Mliirdy by the grace of God, of

^'•■^JBVMd Ireland kings «!*-

^ tmrjpiticefl of Over

hFiJI, in St. JoliD-

iTMiddkMZtMd

A. D. 1776.

[866

ji- '

to every of them, greeting. We being willing,
for certain reasons, that all and singular iodict-
ments of whatsoever trespasses, coutempt*,
aud felonies whereof Elizabeth the wife of
Augustus John Uervey, eaq. is indicted before
you (as is said) be determined before us, and
not elsewhere, do command you and every of
you, that you or one of you do send under
your seals, or the seal of one of you, before us
at Westminster, immediately after the receipt
of this our writ, all and singular the said in*
dictments, with all things touching the same, *
by whatsoever name the said Elizabeth may..
be called io the same, together with this onr
wiit, that we may further cause to be don*
thereon what of rigfht and according to the lair
aud custom of England we shall see fit to b» ^
done. Witness William lord Mansfield, pt
Westminster, the eighteenth day of lUay, in ibm •
fifWnth year of our reign. ' '^

" By the Court. Burrow.'* ^ "^

" At the instance of the with in- named dc» .^ *
fendaut, by rule of Com t."

The execution of this writ appears by the
schedules and indictment to this writ inoezed. .

" The Answer of sir John Hawkins, koigfat,

one of the justices within- written. *

" Middiesex. Be it remembered, that at tbtt ^
general session of Oyer and Terminer of our. .-«.
lord the king, hoUlen for the county of Middl»- ' J
6ex,atHicks's-hall in St. John-street, iotheanii *
county, on Monday the 9tb day of January, i& ' ^
the fifteenth year of t^ reign of our sovereign ,
lord George the third,' king of Great Brilain,
and 80 forth, before sir Jolin Hawkins, kD>ght»
sir James Esdaite, knight, David Wilmbii Joh^
Macliin, esqrs. and others their fellows jtisticcn
of our s:ii«l lord the king, assigned hy his me*
jesty's \eMen patent under the gre^t seal of .
Great Britain directed to tlie same justices be- ^
fore- named, aud others in the said letleis
named, to emiuire more fully the truth, by the
oath of good and lawful men of the county of
Middlesex aforesaid, and by other ways, mesne,
aud methods, by which they shall or may
better know (as well within liberties as without)
by whom the truth of the matter may be better
known, of all treasons, misprisions of treason^
insurrections, rebellions, coiinterfei tings, clip^
pin^s, washings, false coming**, and oilier falnl*
ties of the money of (ireat Britain aud other
kingdoms and dominions whutjtKiver, and of all
murders, felonies, manslaughters, killings^
burglaries, rapes of women, unUwful meetings,
conventicles, unlawful uttering of words, an*
semblies, misprisions, confvderaciea, falae alle-
gations, trespasses, riotM, rouia. retentions, ca-
capes, contempts, faUiiiefl, ue^liy:eiicea, c!oa-
cealments, iiiaintenaiires, OjipreHKiona, chana*
parties, deceipls, and all other evd doings, of-
fences, and injuries whatsoevi^, andaJaotb^
accessaries of them, within the county a lure'-
said (aa well within lilKTtiea as without) bjc
whunuiMver and in what manner Mever aoau

' A

«

367] 16 GEORGE lU.

Gommilttd, or perpetrtted, anil by whom, or to
wbam, when, how, inii slter what mamier,
uil of all otlier article* ami circiim»iamM-s uoD-
•erniiKT the iiremiteit, auil eicry of tliem, or
aay ot tbem, ii> any maimer wliauoever; and
the gaid Irt«aoini aiiil nilier the pfeini!*» to
bear and deleniiiiie »ccurilio|; In the law t and
cuatoma of Eoi-lao'l. ^i 'he oalh of John T.l-
ney, Jainea Staflurd, Richard Philhi.K, S*miie
- Stable, 8amiiEl Bird, William Hillla^ P^nl
Barbot, William Weatherilli Thoinw W«ddr^,
John Williaina, Samuel Baker, Tlionia«Slienir,
John Ldcwler.TliiimaaTanHin, John Gooilere,
John Thoina», and Ui.bert Davia, jfcmlemen,
good and lawful tatn of ibe county aforesaid,
DOW here awom and charijed to enquire lor our
^ Mid lord the king for the body ot the same
county : it is preaented in manner and t.inn as
. appears ly a cerl'^- ■■
Rheduleipoexed.

Trial of the Duchess of Kingston, [368

aotwer ui coocerninjf certain felonies whereof
»i,o ii indicted before our said juMices j and
hme you then there llii« wri'- Witness sir
Jfittn Hawkins, kniijbt, at Hicks'a-hall, the
am day of January, in the fifteenth year of
,iur reiifn." Bin-uJi."

" The within named Elizabelli the wife of
AiiffUBiua John llertey is not found in Qty
bailiwicL.— The Answer uf

" WiLUkM 1'lumer, esq. J

■nil > Sheriff."

" JuiiN Hakt, esq. J

- Great Bntalo, France, and Wlanil kin^, de-
fender of the faith, ami lo furlh. To the she-
riff of oar coonly of Middlesex, greeling : we
command jou, that you omit not, by reason ol
•ay liberty in your bailiwick, but that you lake
Efeabeth the Wife of Autpisiu* John Herfey.
late of the pariah of St. George, Ilannver
•quare, in ihe county of Bliddlesev, enquire, it
■he shall be found in yoor bailiwick, and hec
Mfely keep, so that you may have her body
before our justices uxvigned by our lettera pa-
tent under our tfrcst seal uf Great Uritaiu, lo
. enquire more fully the truth, by tlie oath of
mod and lawful men ofour county ul Middle.
KS aforesaid, and bv oilier ws.ys, meaus, and
Bethuda by which 'ihey diall or may belter
know (as well wilhin liberties as without) by
whom the troth of Ihe mailer may be heller
known, of all treatons, mlsprisiunt of tieason,
iniurrections, rebelliviis, coiinterfeitings, clip-
fHogs, washings, false coininifS, and other
falsilie* of the money of Great- Brilaii
other kinirduma sod dominioua whalsoei e
of all murders, teloniei, in anslau fillers,
bgs, huiwtafiea, rapes of women, unlawful
■neelin^, confenticlea, unlawful ulteriiig ul
words, assemhlief, misprisions, confedcraciea,
false allegations, trespasses, riots, rouls, rt-
IfiitionB, eMsapes, contciiipis, falsities, negli-
gences, conceal men is, msinleiisncei, opprw-
ikms, champarties, deceipis. and all oilier evd-
ilaini{a, nffeiices, mid iiijuvii-s whinaoever, aiid

county aforesaid (as well witliln lilierlies as
without) by whomsoever and in what in«n-
BCr aacrer done, committed, or perpetriletl,
and by whom, or to whom, when, how, and
after what manner, ami uf all "tlier artivlL's
and circumsUiice* coucernint{ the premnes,
and e»ery of them or sny of thfiii, m any
Bianaer whatsoe«er ; and the said treawmi
and other the prcmisca In hear and deirniuiie,
MoenliBf to the laws and cusioins uf Knglaml,
Mtheoett ireneral aesaion of Oyer and Ter-

" Geonie the third, by the grace of God,
of Grcal-Uritaio. France, and Ireland kins.',
defender of the faith, aod so forth. To ilia
sheriifofourcounty of MiddleBOX, greeting: we
cummaudyou, as before we Lave commanded
\oa, that you umit not, by rtaioo of any li-
berty in your bailiwick, but that you Uka
Elizabeth the wife of Augustus Johu Hertej,
late of the parish ofSt-GeorgeHaooner-iquat*,
■ the county of Hiddlasex, esquire, if she sliall
„a found in your bailiwick, and bet Mfelj
keep, so that ynii have her body before our
iuatices assigned by our letters patent under
oor great seal of Great-Briuin, lo eoquiic
more fully the tmlh, by Ihe oath of good and
lawful men of our oouuiy of Middlesex afot^
said, and by other ways, means, and melliMH
hy wliich they shall or may belter know (as
ivelt wilhin lS)erti*s aa without) by whom tfas
iruth of the mailer may he belter known, of all
lieasoni, misprisions of Ircason insurmtiona,
rebellious, Gounterfeilings, clippiogo, washtoga,
false coinings, and other falsities uf the pionej
of Great- Briuiu, and other kingdoms and do- .
minions wliatsoerer, and of all murders, felo-
nies, manslauglilers, killings, burglaries, npea
of women, unlawful meetings, con.culicles,
unlawful uttering uf words, assemblies, misprt-
siona, confederacies, falseallegftiloiis,tie«paa!iea»
riots, rouls, rclentioos, escapes, contenjpta,
lilsilies, negligences, concealments, iitaiutt-
iiaiices, (ipprestions, cliani[iariieE, deceit*, and
oil other cvil-duings, offences, and injuries

whatsoever, and also llie acoea---- -'' ■'

within Ihe county aforesaid (as

benies us wiibiiui) by whuni

wbut manner soever done, coi

iielraled, and by whom, or lo

how, and alter what manner, and of aH

iitlier arlicles and circumstances concernlDr

ilie incmises and every of Ihem, or any af

them, in any manner wbalsoerer; and tbft

said treasons and other the premises to bear

and detenuine accnnliuir in the Ir '' ~

of them,
well wilhin li-

niiiicd or per-
whum, when.

M the Dett general aesaion of Oyer and Ter- -Jl^uib^

aiDcr to bo hulJeo fur our aaid county to ; y.Tff/^m»»

and teniiiner to be Iioldeo
ity, to answer us concerning c

Mmiiiy, to answer us ciiucermug i.t>™i- y"...'.
lies wheteofalie is indicted before our wutj^^
ires; and have you then there tbV -*

'iiuuaNrJobn daw kins, kBioh*'-'
.11, Ihe I4th daj of Vttr^^

360] Jbr Bigamy.

Au^^Mtiii John Henrey, esquire, is not foaod in
ay fattiliwick.— The Answer of

*• Wm. Plomer, esq. ')

and > Sherifr."

" John Hart, esq. )

** MiddUux. The jurors for our sovereigfu
lord the now king, upon their oath preseut,
that £iizabeth the wife of Audrn^tus John
Herrey, late of the parish of SL George, Han-
ofer^oare, in the county of Middlesex, esquire,
en the 8th day of March, in the 9th year of tlie
nign of oar sovereign lord George the third,
DOW king of Great- Britain, and so forth, being
then married, and then the wife of the said
Augustus John Hervey, with force and arms,
at the said pnrish of 8t. George, Hauoyer-
iooare, in the said county of Middlesex, felo-
uoosly did nnarry and lake to husband Evelyn
nerrepoot duke of Kingston (the said Au-
gnslus John Hervey, her former husband,
Eeing then alive) against the form of the sta-
tate in such case made and provided, and
against the peace of our said lord the king, his
crown and dignity : and the said jurors for our
said sovereign lord the now king, upon their
oath aforesaid, further present, that the said
EUiabeth, heretofore (to wit) on the 4tli day of
Angost, in the 18th vear of the reign of our
late sovereign lord George the second, late
kin|^ of Great- Britain, and so forth, at the
parish of Lainston, in the county of Southanip-
— , by the name of Klizabeth Chudh-igh, did

Barry the said Augustus John Hervey, and

^ him the said Auirustus John Hervry then and

tbere had for her husband ; ana that the

BMd EHsEabeth being married, and the wife of

the said Augustus John Hervey, afterwards (to

wit) on the 8th day of March, in the 9th year

•f the reign of our said sovereign lord Geoigfe

, the third, uow king of Great Britain, and ku

ibrth, with force and arms, at the said fiarish of

Si. George, Hanover-square, in the saitl county

•f Niddle8«*x, feloniously did marry and take

li husband the said Evelyn i^ierrepont duke of

Kingston (the said Augustus John Hervey,

ber former husband, being then alive) against

the form of the statute in such case made and

fffovided, and against the peace of oiir said

saiereign lord the uow king, his crown and

dignity. O. T."

" Troe Bill. Augustine Greenland, Ann
Cffubrck, Christopher Dixon, Thomas Dodd,
litniuel Harper, John Fozard.— 8woru in
Cwrt."

L H. S, la it your lordships' pleasure, that
.,1 ^Hidges have l«ave to be covered ?
' j'.l Lwrfi. Ay, ay.
"^ ^1 CLif ihe Cr. Serjeant at Arms, make pro-
''. ^l ^'**^l<>rthe gentleman- u«tlier of the Black
^'.\^«"*^te bring his prisoner to the liar.
"^^i^"" W •* ^rmt, Oyex, oyez, oyez ! Eliza-
>^!.> ^ iodMsa-dowager of Kingston, cume

«n Yoo aiid yonr bail, oi- else you

mg the

.V

A. D. n76. [370

Trial, called to the bar by the following pro-
clamation.

Gentleman-usher of the Black Rod, bring
your prisoner Elizabeth duchess- dowager of
Kingston to the bar, pursuant to the order of
the House of Lords.]

Then Elizabeth duchess-dowager of King-
ston was brought to the bar by the deputy-
gentleman-usher of the Black Rod. The pri-
soner, when she approached the bar, mado
three reverences, and then fell upon her knees
at the bar.

L. H. S, Madam, you may rise.

The prisoner then rose up, and cnrtsied to
his grace the Lord High Steward, and to the
House of Peers : in return to which compli-
ment his grace, and the lords, bowed.

Then, proclamation having been made again
for silence, the Lord High Steward spake to
the prisoner as follows.

L.H.S, Bladam ; you stand indicted for
having married a second husband, your first
husband being living.

A crime so destructive of the peace and hap-
piness of private families, and so injurious la
its consequences to the welfare and good order
of society, that by the atatute-law of thia
kingdom it was for many years (in your sex)
punishable with death : the lenity, however, of
\ later times has substituted a milder punishment
in its siead.

This consideration must necessarily tend to
lessen the perturbation of your spirits upon
this awful occa<«ion.

But that. Madam, which, next to the inward
feelings ' of your own conscience, will afford
you most comfort is, reflecting u|ion the ho-
nour, the wisdom, und the candour of this
high court of criminal jurisdiction.

It is. Madam, by your particular desire that
you now stand at that oar : you were not
brought there \iy any prosecutor.

In your petition to the Lord^, praying for a
speedy trial, you assumed the title ol duchess-
dowager of Kingston, and it was by that title
that tiie court of King's- bench admitted yon
to bail ; in your petition you likewise averred,
that Augustus John Hervey, whose wife the
indictment charges you with being, is at thif
time earl of Bristol : upon examining the re-
. cords, the Lordi: were satisfied of the truth of
I that averment, and have accordingly allowed
you the privilege you petitioned fur, of being
tried by your peers in full parliament; and
from thein you will be Kure to meet with no-
thing hut justice tempered with huiuanity.

Before 1 conclude, I am rommandtMl by
the House to acquaint you. Madam, and all
other persons having occaKion to ^peak to the
Court during the trial, that tluy are to mldrtss
themselves to the lords in gential, and nut to
any lord in particular.

Duchea of Kingston. My lords, I, the un-
fortunate widow of your late brother, ihe most
noble Evelyn Pierrepout duke of Kingston^

a n

371]

16 GEORGE III.

Trial of the Duchess of Kingston,

[37S

am brotijfht to the bar of lliis riirlii honourable
House uiihoiit a shadow of fear, but infinitely
awed by the rp((|)ect that is 'due to yeu, my
most honourable jiid;rps. ^

My lords, aflcr havinpf, at the liaxard of my
life, returned from Rome in a danpfc^rous sick-
ness to submit myself to the laws of ray coun-
try, 1 |dead some little merit in my willing;
obedience ; aud I intreat >our lordshijis^ indul-
gence, if 1 should be deficient in any ceremo-
nial part of my conduct towards you, my most
honoured and resuectable judjres ; for the iu-
iirmities of my body anil the oppression of
spirits under which I Iaf»our, leave your un-
h^ppy prisoner sometimes without recollection :
but it must be only with the loss of life, that I
can be deprived of the knowledi^eof the rrs[)ect
that is due to this bi|rh and awful tribunal.

X. H. S. Alailam, your ladyship will do well
to give attention, while you are arraigned on
your indictment.

Then proclamation was made for silence.

After which, Elizabeth duchess dowager of
Kin^on was arraigned, in the focm of the
■aid mdictraent against her, by the clerk of the
crown in the KingV bench.

CL of the Cr. Elizabetli duchess-dowager of
Kingston, you stand indicted by the name of
Elizabeth wife of Augustus John Hervey, late
of the parish of St. George, Hanover- square,
esq. (now become a peer of this realm) for that
yon, on the 8th dav of March, in the ninth
year of the rei^ of his present majesty our so-
Terei^n lord kmg George the third, being then
married, and then tiie wife of the said Au-

Sistus John Hervey, with force and arms, at
e said parish of St. George, Hanover- square,
in the said county of Middlesex, feloniously
did marry and take to husband Evelyn Pierre-
poot duke of Kingston, the said Augustus John
Hervey, your former husband, oeio^ then
alive ; against the form of the statute m such
case made and provided, and against the peace
of our said lord the king, his crown and dig-
nity.— ^The indictment further charges,* that
you the said Elizabeth, heretofore (to wit) on
the 4tb day of August, in the 18th year of our
late sovereign lord George the second, late
king of Great-Britoin, and so forth, at the
parish of Lainston, in the county of South-
ampton, by the name of Eli/.abeth Chudleigh,

^ * " The indictment must state the two mar-
riages, and aver that the former consort was
alive at the time of the second marriage. In
the duchess of Kingston's case the first count
stated generally that the defendant on such a
day, &c. being then married and then the wife
of A.J. H. with force and arms at, ^c. did
feloniously marry E. P. &c. the said A. J. H.
being then alive, &c. The second coimt stated
the time and place of the first as well as the
second marriage. When the trial is in the
county where the party was apprehended, there
Is an atMitiooal averment of that fact." East's
PJeu of the Crown, c. IS, s. 8.

did marry tiie said Augustus John Henrey
and him the said Aunfustus John Hervey then
and thi*re bad for your husband ; and that you
the said Elizabeth, being married, and the
wife of the said Augustus John Hervey, after-
wards (to wit) on the 8th day of March, in the
ninth year of the reign of our said sovereign
lord Gcori>;c the third, now king of Great-Bri-
tain, and so forth, with force and arms, at the
said parisli of St. George, Hanover-square, fe-
loniously did marry and take to husoand the
said Evelyn Pierrepont duke of Kingston, the
said Augustus John Hervey, your former
husbanil, being then alive. — [Tow say you?
are you guilty of the felony whereof you staud
indicted, or Not Guilty ?

Duchess of Kingston. I Elizabeth Pierre-
pont, duchess dowager of Kin<;ston, iudicted by
the name of Elizabeth the wife of Augustus
John Hervey, es-q. say that 1 am not Guilty.

C/. of the Cr. Culprit— How will you be
tried? '

Duchess of Kingston. By God and my
I peers.

' CL of the Cr, God send your grace a good
deliverance,

CI. of the Cr, Serjeant at arms, make pro-
clamation.

Serj, at Anns. Oyez, Oycz, Oyez! All
manner of persons that will give evidence, on
behalf of our sovereign lord the king, against
Elizabeth duchess- dowager of Kingston, the
prisoner at the bar, let them come forth, and
they shall be heard ; for now she stands at the
bar upon her deliverance.

X. H. S, My lords, the distance of this place
from the bar is so great, that I must desire your
lordships' leave to go down to the table for the
convenience of hearing.

Lords. Ay, ay.

Then his grace removed to the table.

Duchess of Kingston. My lords, the sup«
posed marriage in the indictment with Air,
Henrey, which is the ground of the charge
against me, was insisted upon by him iu a suit
iMtituted by roe in the consistory court of the
right reverend lord bishop of London ; by the
sentence of which court, still in force, it was
pronounced, decreed, and declared, that I wss
free from all matrimonial contracts or espousals
with the said Mr. Hervey : and, my lonls, I
am advised tliat this sentence, which I now
desire leave to offer to your lordfthips (remain*
ing unreversed and uninipeached) is conclusive,
aud that no other evidence ought to be received
or stated to your lordships respecting such pre-
tended marriage.

L, H. S. l>o the counsel for the prosecutor
object to the reading of the sentence.'

Att, Gen. (Thurlow, afterwards lord chan*
cellor.) My lords, observing that the prisoner
was about to make some application to your
lonlships, 1 was not solicitous to rise in tba
order and place wherein I ought to have ad-
dressed myself to the House; because 1 would
not intermpt, or prevent, auy thing which she

• J

srs]

Jbr Bigatmf.

A. D. 177&;

[374

mif ht tbink muteriAl for her to Uy bttfore yoar
lorilfhips.

I attended much to the form of the applica-
tno. If I compreheod the aim of it, she
neaoa to olyect to your lordf hiM beariiH^ any
e? idenoey either ^iven or ftatecl, m lupport of
the jMvient indictment ; the mund of her ob-
jection being a sentence* saidto ha?e passed in
the ecclesiastical court, against the nrst mar-
risfe supposed in the indictment. Upon this,
yonr lordships have demanded, whether I ob-
ject to the reading of the sentence ?

If the proceeding referred to had been ten-
faed to your lordships in the only place which
can be thought the proper or regular one, for
rseeiTing tlie defendant's eridence, to be sure,
■any questions would naturally have arisen
apon it. First, whether that proceeding, ex-
pnined as it will be, lias the force of a sen-
tence, or amounts to more than a circnmstance
snd pro(>f of the fraud complained off
Secondly, whether a serious sentonce of that
sort, pronounced between party and party,
ought to be admitted in a criminal prosecution,
and against the king, who was no party to it,
nor could have become so by any means P
Thirdly, whether it creates an estoppel, or
condusire evidence against the crown?
Fourthly, whether it does so in this peculiar
species of prosecution ?

But in the way this thing is urged, it seems
perfectly impassible, or at least altogether pre-
mature, to discuss the force and effect of it, as
aridenoe. That supposes a case already made
Ibr the prosecutor, which requires the aid of
evidence, on the part of the prisoner, to dis-
prove or explain it. But, if I catch the idea
periectly, the present insisting is, that the sen-
tence now offered to the consiileration of your
lordships carries some lei^^al furce — what,*! do
aot pretend to define or explain ; for I protest
I have no guess what is meant ; hut — some
kgal force with it, which enables the prisoner
10 demand, in thisstsge ufthe business, that the
trial shall not prn€*eed, nw any evidence be
heard to maintain the indictment, but that the
whole matter shall be wound up, and conclude
with some resuluiion of your lordships, — not to
acquit (lor in order to that you must try) but to
distOMs the primmer m itiiuut trial, afler putting
herself U|Kin her peers fur trial,

I have, notwithitaudiiiie, shortly intimated
the nature of the objeciions which may be
made to it, a« an article of evidetire for the
priMoer ; partly to |iuint out, how untenible
the priipositiun is of stopping llie trial, by in-
lerpofiing a thing whose reality, cumpclence,
and efftrL't wilt be so much disputed in matter
of fact aud of law ; but chiefly, to lay in my
claim, that this papc>r (if } our lordships should
ihiok it wurth hearing) may be read at this
tine, aud for the pur|»use of the motion now
made by the prisoner only, without prejudice
ts any objection which I may think fit to make
ts it, if it shoulil be offered as evidence in the
csarie of the trial.

If it be read under the reserve I have men-

tioned, not as a part of the trial, bat to make
this application of the prisoner to yonr lord«
ships, previously to her trial, intelligible ; and
for the sake of raising the argument npon it, in
case your lordships sbonkl suffer such a point
to be argued at all ; in these views, I will not
object to the reading of iL

But if it be offered as a piece of evidence for
the prisoner, so that 1 most admit or object to it
now, I shall certainty insist upon going en with
the prosecution, and drive this article of evi-
dence into its own place, the prisoner's defence.
There it will be better seen, bow far it is avail-
able, or even eompeteut.

Unless I could learn the purpose of oflbring
it from those who advised it, I do not know
how to make a more particular answer to your
lordships' question.

Duchess of Kingston. Will your lordshipa
please to permit my oounscd to be heard to tliia
point P

Lords, Ay, ay.

L, H' S. Mr. Wallace, yon may proeeed
for the prisoner.

Mr. Wallace. My lords, 1 have the hononr
to be assigned one of the counsel to advise and
assist the noble prisoner at the bar in all mattera
of law that may arise in the course of the trial.

I shall submit with great deference to your
lordships, that the present stage of the busi-
ness is the proper season to introduce the sen-
tence which has been mentioned to the Court.

My lonls, the sentence is conceived to he
conclusive upon the fact of that marriage which
is the ground of this indictment. The indict-
ment supposes that the prisoner at the bar waa
married to Augustus John Hervey : the sen-
tence now offered to your lordships is not only
of a competent iurisdiction to decide that ques-
tion, lint the only constitutional jurisdiction.

My lords, whilst this sentence remains un-
impeached, 1 conceive that it is conclusive
against all evidence to be produced of the fact
of the marriage. It is in that light the pri-
soner is advised to offer it to your lordships,
that a court of competent jurisdiction having
decided the point, it will l)e in vain to call parole
witnesses to the fact ; and it will «mly take up
your lonlships' time, and it will be of no real
use, to state the evidence of witnesses, whicti
witnesses cannot appear to give that evidence
before the Court.

My lords, the office of a counsel in opening
the case to any Court is, as I conceive, to state
with clearnesM the evivJetiCc that is to be ad-
duced, that the Court may better understand
and apply it : therefore, unless the evidence is
competent, your lordships will not hear any
state of it. This too perhaps may be the time,
though I shall forbear at pres«'nt to enter into
it, to discuss whether the sentence be admissi-
ble ; or, if admissible, whether conclusive : but
we are now, my lonls, upon the order of pro-
ducing this sentence ; and if it has the effect
which I f bail humbly submit in a proper seaaoa

S75]

IS GEOKOE m.

Trial of the Duchess of Kingston,

[376

to your lordships that it has, of beiag' absolately
conclusive, tliea the evideoce, which is now
ready to be stated by the conDsel lor the prose-
cution, oujfht not to be produced, and of course
CHi^ht not to be stated. Tiiifi is the light in
which the cause appears to me at this moment ;
and 1 trust ^our lordships will concur in opi-
nion, that if the sentence has the conclusire
effect which we are ready to spbmit to your
lordships it has, it repels all testimony, and
makes it improper therefore to slate any. If
a precedent should be thought necessary for
what is prayed by the noble prisoner at the bar,
I beg leave to refer your lordship* to a ca«e de-
temoiined at the bar of the court of King*s-
bench in the reign of king William: it is re-
ported in Mr. Heirjeant Carthew*s Reports, 225,
upon a trial of an tjectmrnt. The question was,
iff sir Robert Carr was actually married to Isa-
bella Jones, by whom he had issue, and under
whom the plaintiff in that cause claimed the
estate. The defendant, by way. nf anticipation
of the evidence which the plaintiff was about to
five, moved the Court, that the plaintiff ought
not to be allowed to prove a marriage between
Ihem, because there was a sentence in the Ar-
ches upon a suit of jactitation brought against
her ; by which it was decreed, that there was
no marriage between them, but that they were
free from all matrimonial contracts and espou-
sals. The sentence was then offered in evi-
dence by the defendant's counsel at the bar, to
conclude the plaiutiff from any proof of the
marriage, unless he could shew that the same
was repealed : and u|)ou a debate, the Court
were all of opinion, that this sentence, whilst
unrepealeil, was conclusive against all matters
precedent ; and that the temporal conrts must
give credit to it, until it is reversed, it being a
matter of mere spiritual cognizance : and upon
this the plaintiff was nonsuited. Your lord*
ships may perceive that tliis case is applicable
to another part of the business before your lord-
ships ; but 1 cite it now merely to shew the
sentence was offered, and received, to preclude
ilie examination of witnesses; and surely if
witnesses are not admissible, their testimony
ought not to be stated.

Attorney/ General. My lords, I do not even
now comprehend the order of proceeding pro-
pose<l.

J f there be any thing in the present motion,
considei-ed as proposing a fit manner of regu-
lating this trial, or as a point of general law ;
in short, if their prnposiiiun be maintainable at
all, I do assure your lurdsbips, that 1 am not
anxious, or in any degree desirous, to state a
case to this audience nhich must wound the
sensibility of the prisoner: this I would avoid,
unless public justice, and the necessity nf the
prnsecntioD, should absolutely require it of me.

If it be possible, on her part, to make any
ground for stopping the prosecution in this
manner, I shall be well content to stop here : to
me it appears flatly irnpoasible. I slated some
general hints to tbu effect when 1 spoke list

The learned counsel, in attempting te make
good their proposition of stopping the trial Id
this stage, have contented themselves with a
general averment, that the law n with them ;
and refer to the manner in which evidence was
received in the particular case of one ejectment^
where no contradiction or controversy anpears
to have been raised among the counsel about
the nature of the cause depending, the sen-
tence produced, or the parties to both. Here,
a great deal is to be previously settled on those
heads.

I did not imagine the learned counsel would
have stopped so shortly: but if they tboaght
well of the motion, I expected they would have
gone the length of arguing on it, and of en-
deavouring to demonstrate the possibility of
windioff up the whole prm:eeding here, by
comparmg the nature of the sentence with the
whole compass of the prosecution, stated with
every degree of imaginable aggravation.

Your lordsltips might easily perceive oiT
reason for px|>ecting the argument to take this
course. The sentence may be read ; indeed it
muAt be read, it is the only ground of the
motion. But unless such is demonstrated to
be the effect of it, yonr lordshi|>s can take no
order upon it, nor make any use or applicatioa
of it, without hearing the prosecutor's case. It
is not therefore enough to read the sentence.

My reason for troubling your lordships at all
was only to observe, thai the motion concludes
against even hearing the iirosecutor ; and to
submit, according to my humble dnt^', to your
lonlships, whether that'be a point off law nt to
hear the prisoner upon by her counsel. If it
be, your lordships will call upon the learned
counsel whom you have allowed the prisoner,
to sustain it ffuU^ iu argument. Otherwise
your lordships will reject it as inadmissible.
All prosecutions might be stopped in this
manner.

A Lard. Does Mr. Attorney-General object
to the reading of the sentence 'f

An. Gen. Subject to the reservation of my
right to object to it in every shape, when it
shall be offere<l in evidence : upon that ground
1 do not object to it. I am not now admitting
this sentence to he adduced in the course of the
cause, or as a part of the defence, to which 1
shall say, it is incompetent. But I let it in«
to ground a motion anterior to the hearing of
the cause. In that view, and in that view only,
I admit it to be read. Indeed it seems to be
offered as a part of the counsel's speech ; and
I admit it as coniainmg the whole of the argu-
ment, yet offered in support of the motion.

That your lordships may understand what is
to l»e made of this senti nee wben read, they
must read, in their order, the original allega-
tion of Elizabeth Chudleigh ; the cross-alle-
gation delivered in by Mr. Heney ; her an-
swer; the articles on which the proofs wera
taken ; the depositions ; and the sentence : for
thus the sentence proceeded.

Lord Man$jield. They most give in erideiica
the whole sentence.

_fi)r Bigami/.
'^M Rnlrnce oaly begun 10 be read .)
Att. Cen. I (Diut Iroutile your turdsliips

Tti«j' nre now offering lo reul the «enleace
m\y. witliuut rsblmg ilie iilk-|;ii[iout ul' the
parlici, ihcir arliclea anil prueli. Pot tthal
m«>ni 1 ray well comprelienil. Bnt I tpjire-
tiwiil. itiul, iftjud^ni^ut bt read in acourt of
liw. llicy miiDl rend llie declarilioo, ulea, re-
jilicBiioii. and all other nialters kadiiig li> llie
judpurnt. in order tamnkeitiiileltigible. Here
iIk'3 wiiiiIiI read the leitletice.abatractally I'rom
Uir nlliuaLiuni kaJ other matturs upon which
iLii iviiifiice proceeded.

IxinJ C-Dndtn. I wish to know of the coun-
»'l tor ilif |iriiouer, whether they meaot toob-
jtti 111 ilie wliideiiroceeJingB iii the jaclitalioD

iMv. W iiHact. I have not, tipoii the part of

ilii- iii.[.]t- [irUoner, the least oliJKctiua that

>i Li>> iiMii.'tediiigs should liehrauftht before

!i<l«i, I coiioeite that what the uSi-

lii anf(lit before tUi: Court was what

'Lfi'mu oidrnce in such case. I

il^i.'cl auy other, in any case I have

r; produced hut the sentence, which

.lioi'i the proci^ediugs had in that

I understand the jiroceeilin^a are

I '•<) llie part uf the nuble prisoner

-fi* II aiA the least objection lo the H'We be-

^ laal before the Cnarl.

TiYw Lonla then permitted the following; Pro>

■'■rditif[» ID the Janilatioii Cau*e, auil the Seri-

' Bce pTDnoiinoed in the Eccteaiaitical Court, to

- read 4e benttur.

ttvxmv KKoaiON, Michaelmai Trrm, 1768.

■' tn ibe name of (io<l, Aineo. Before you

■■- -"f-'Mpful Jobu Detleaworlh, doctor of

■■- ni-neral nf the riglil rerereud father

I'liliard, by di»ine pertniMioa. bird

'. iixlnn, and nffioiat priticipal uf the

> |iiMMip*l court ot LondOQ lawfully

. ynuraumigale or any other enin-

.' <u Ibii bvbalf ofthe prociar of Ibe '

tllcabeth Chudlei|;h, of the parish !

■ . ^..rei. WrsI minster, in the connly '

' ' I ; BgaiDBl the hoaoumble

.' v. of Ilie parish nf St.

1 ■; Uieceunlynfftliddle- '

i,--."ni Lilly miiri [ir noil Or pernooi lawfully
■ ••inwtiiti^tir ■pprariiijf for him in judgment ,
•(••re jou hj way of enmplalnl, and bcrrby
- fiipl«i&i*|( unlo yaa In ihit behalf, doih kay,
'in%», anil in law articulately prupouud ai

•«»%; llialialoMy,

' 1, TImi the said boDoiirahle Elizabeth
' .inilii^ Via and ii free, and no way enticed

loy laetrinenial eontracl or npoiisaU with

' (ul hnaourabla Au^uilua John Hervey ■
-■■ii for anil as a ptTWin frre. and no way en-
' 'HH, ma asd ia GommoDly accoiinied, re-

A. D. 1776. [378 ,

Euted. anil fatten in h», aurangJl her nen;b'
Dim, friend', and tiimillnr acquaintance: and
the parly prttponenl ilm li alledge and pmiMilnd
every thing in Ibis article contained jomljy and
aeferally.

" 3. That Ibe said hiinaurahle AugusluB ,
John Hpr*ey, siillideiiily knowini; the pre.
misei, anil iintwillisMiutlni; th* raiiie. did in the
year uf onr Lord IT63. IT64, 1T6*, I7ea, and
i767, and Jo llie seteial months therein con-
Gorring, and in this ureseut year of our Lord
Um. within the parish of 8aii>t James West-
minuter, afiiresaid. and in other purjthex and -
placeH in the neij^bbourhoDd thereof, and lliere-
10 adjoining, or in atl, some, or one uCtlie afore-
meniioned times and places, in tht' presence of '
■ereral credible witnesses, falsely and malt' '
ciously boast, assert, and report, ihui he was
matrieil i» or coniracled in iDairiusT with the
aforeaaiit bnonnrable Elizabelh Chodlejgh ;
whereat Iti truth and fact not any such mar-
riBife was ever solemnized or erer coiitracted
between (hero ; and this was and islrue, public
and nniorions; and the party proponent dotb
alled|;e and projioandorany other time or limea
and places as shall appear from the proofs In
be made in this cause, and as before.

" 3. That the said honourable Augustus
Jobn Rerrey hath been oftentimes or at least
once, on the part and behalf of the said bonour-
ble Elizabeth Chudleigb, and her friends and
acquaintance, asked and requested, or desired
In desist and abstain frnin bis aforesaid pretended
false and malicious boaatiug, asserting, and re-
porting, a« mentioned in the oeit preceding ar-
ticle : and the party proponent doth alledge and
propound as before.

" i. That the said honouraMe An((ustus
Jobn Herrey, being as aforesaid asked and re-
quested to cease, desbt, and abstain from his
aforFSaid pretended falae and malicious boast-
ing, asserting, and repnriing, hath not in the
least, nor doih in the h'asl at present cease-,
desiat, and ^Mlain therefrom, but continually
with like malice ami rsshnesa dues conklanlly,
falsely, and maliciously boast, assert, alfiriii,
and report the ume, to the great danger of his
aonl's heahh, no small prejudice lu Ibe said
hnnnurable Elizabeth Chudleigh, and pernicious
example of others : and this vn and ia true,
public, and notorious ; and the parly proponent
doth alleilge and propound at before.

" 5. That of all and singular the premises it
was and is, by and on the part and behalf of lli«
■aid honourable Elizabeth Cliudleluh. spinster,
ibiukiog herself greatly injured, aggrieted,
and disquieted by reason of the si'urraald pre-
tended Itlse and malicious boasting, asserling,
and renoriiiig of the said honourable Augustus
John Heney, rightly and duly cnmplaintil li
you Ihejiiilge aforesaid, Hiid lo this Court, fur
ilft and meet remedy lo he had anil pr»*ided i
this behalf: and the parly proponent doth aU
ledge and propound as belnre.

" 6. That the said honourable Aii;;ns
Jobn Hervey was and is of the parinh of SitiDt
Junw, Wealminittr, in the county ot Middle- ^

379}

16 GEORGE m.

Trial of the Duchess of Kingston^

[380

•ex, and diocese of London, and therefore and
bv reason of the premises was and is subject to
the jurisdiction of this Ck)nrt : and the party
proponent doth alledge and propound as before.
"7. That all and singular the premises
were and are true, public, and notorious, and
thereof there was and is a public Toioe, fame,
Itnd report, and of which legal proof being
made, the party proponent prays ri^ht and
justice to be effectually done and administered
to him and hb part^ in the premises ; and also
that by this court it may be pronounced, de-
creed, and declared, that the said honourable
Elizabeth Chudleigh at and during all the
times in this Cbel mentioned was a spinster, and
free from all matrimonial contracts and espou-
■als with him the said honourable Augustus
John Hervey; and that he, notwithstanding
the premises, did, in the years, months and
places in this libel mentioned, or in some or one
of them, falsely and maliciously boast, assert,
•nd report, that he was married to, or contracted
in marriage with, the said honourable Eliza-
beth Chudleigh ; and that he may be enjoined
perpetual silence in the premises, and obliged
and compelled to cease, desist, and abstain from
such his aforesaid false and malicious boastings,
assertions, and reports for the future ; and that
he may he condemned in the costs made and to
be made in this cause ou the part and behalf of
the said honourable Elizabeth Chndleigh, and
compelled to the due and effectual payment
thereof by you or your definitive sentence or
final decree to be giTen in this cause ; and fur-
ther to do and decree in the premises what shall
be lawful in this behalf, the party proponent
not obliging himself to prove all and singular
the premises, or to the burthen of a anperfluous
proof, Bgainst which he protests; and prays,
that, so Tar as he shall prove in the premises,
lie may obtain in his petition, the benefit of the
law being always preserved, humbly imploring
the aid of your office in this behalf,

*'Artii. Collier.

" Pbt. Calvebt.

" Wm. Wynne."

** Hervey against Hervbv called Chuolbiob.
Fountain — Bishop.

'* Which day Fountain, in the name of and
as the lawful proctor of the right honourable
Augustus John Hervev, and as such, and under
that denomination, did, by all ways and means
which may be most lieneficial and efiectual for
his said party in this behalf, and to all intents
and purposes in law whatsoever, say, alledgp,
and in law articulately propound as ibllows;
to wit :

** 1. That some time in the year 1743, or
1744, the right honourable Augustus John
Hervey, then the honourable Auj^ustus John
Hervey, esquire, and son of the right honour-
able Juhn late lord Hervey, became acquainted
with £lizabeth Chudleigb, now Hervey, at
Winchester races; and the aaid honourable
AagiHtua John Hervey, esquire, banng cea-

ceived a liking and affection for the sahi Eli-
zabeth Chudleigh, and being a bachelor, and a
minor of the age of 17 or 18 years, and free
from anj^ matrimonial contract, did privately
make h» addresses of love and conrtship la
the said Elizabeth Chudleigh, who waa then
also a minor, and a spinster of the age of about
18 yeare, and also free from any matrimonial
contract; and ahe the said Elizabeth Chud-
leigh, now Hervey, did receive and admit such
his addresses and conrtship, and entertain him
as a suitor to her in the way of marriage, bat
without the privity or knowledge of either of
their relations or friends, excepting her aant
the late Mrs. Hanmer; and they motoally
contracted themselves to escli other : and tM
party proponent doth alledge and propound of
any oiher time and place, aud of every thing ia
this article contained jointly and severally.

*• «. That in the said year 1744, the aaid
honourable Augustus John Hervey, esquire,
was a lieutenant in the navy, and lielonged to
his majesty's ship ComwsiT, which in August
1744 lay at Portsmouth ; that the said Eliza-
beth Chudleigh, in July 1744 being on a viait
at John Merrill's, etquire, at Lainston, in tha
parish of Sparshot io the county of Southamp-
ton, with her aunt Mrs. Hanmer, and the aaid
Augustus John Hervey, beinsif then on board
the said ship the Cornwall ai Portsmouth, went
from tlience to the said Mr. MerrilPs in order
to see the Raid Elizabeth Chudleigh ; and tha
said ship being under sailing onlera for and
being soon to depart for the West Indies, it waa
proposed between the said Augnstiis Joho
Hervey and Mrs. Hanmer, that they the said
Augustus John Hervey and Elizsbeth Chud-
leigh ahoutd be married privately at the aaid
Mr. Merrill's house ; and accordingly they tha
said Augustus Juhn Hervey end Elizabeth
Chudleign were, on or about the 4th day
of August 1744, in Mr. Merrill's house m
the parish of Sparshot aforesaid, joined to-
gether in holy matrimony, about eleven
o'clock at night, by the reverend Thomaa
Amis, since deceased, a clergyman in holy
orders, according to the riles and ceremonica
of the church of England, in the presence af
Mrs. Hanmer, the aunt of her the said Elisa-
beth Chudleigh, and Mr. Moontnay, both ainoa
deceased ; and were then and tliere by hisa
the said Thomas Amis pronounced for and aa
lawful husband and wife : and the paii^ pro-
ponent doth alled};e and propound as before.

'* S. That after the said Augustus John
Hervey and Elizsbeth Chudleigh, now Her-
vey, were so privately married, they consum-
mated such their msrriage at the said Mr,
Merrill's house, by having the carnal know-
ledge of each other's bodies, and laying for
some time in one and tlie same bed naked and
alone, but without the privity or knowledge of
any part of the family aud servants of the said
Mr. Merrill: and the parly proponent doth
alledge and propound as before.

« 4. That the said Augustus John Herva¥«
esquire, continued at the said Mr. McnilTls

Jar Bigamy.
. im sr llim davi, ml ibco returned to
biiuiil ithi(i CornwBll, wherein he in NoTem-
Ur faUawiag nitnl I'ur Ihe Vfeat Indiei; anil
tb*t, 00 iccoiiDl orcemin circuaiBtancei of bis
rtnulj, ii bdag percuary IbU (he said roar-
riiifF rtiQulil he kepi a lecret from erery per-
••«, azc^Eil those bcrore meationni, thererore
tkcMid liliulieth Ileney coDiiauMl to go by
Uu Ditiiie or Chud1vi|{1i when ibe lefl ibe ssiil
Nr. Herrill'B, rendio^ at different places, sail
jamiaa for a tingle person ; that ihc said A>i-
tmum Jobn Herrey, esquire, roraBined in ihe
Vlcrt Indira lill the rn^ulh of AiiguKi in the
■■•-u 1740, when he sailed tiir Knglsnd, and
InlaiDorernnornbantthe IGih of Oclober
l»>lAg; that the Mid Elizabeth Ileney U
u tiatr r««id«d in Cnnduil-Mreel, where the
.: • Anj^iulua John Heriey, etquire, went lo
' her u his vife seferal iin>e«, did she re-
ived llim and acknowledged him to be li«r
I'liaud, liul Ihey did not publicly own their
:»irrj*|^, orMhaliit loeelher as bupdrjud snd
■ ii-: and ihi» Was nniTia Hue ; aud the party
"{•onrat diuh allcdge and propound as before.
■ J. Tlini Ibv uiiT AugualuK John Hervey,
pirs-, OD the iSiit day of the mouth of Ho-
■lAer la the said year 1746, wenl lo sea
;>io, 4Dd relurnrd to England in the Jsuuary
'■'•imiBg; llial the said Elizabeth llerrey
' |iicTwt>c C^hiidleif h at tliat lime continued in
<.'«a>Uiii-«trcct; but some diffetcncej arisiii)r
hliratn lb*m on aeeoniit of the conducl of the
ma Eiieabnli Herr«y, thay eominucd to lire
irparmr fniiii i-jtli nllirr for the fulure ; and
Vi.Snmus Jobu HerTey
.ii!>'^' the (aid Elizabeth
' i[i the month of May,

—I,. .....i... : II. . . i..< ri^vu. And continued abroad

UliUu tuuait> ol D.-vt'inbar in the Iblloiving
<tar; thai from ilic nine they so continued io
in ■aparalF a* Hr»rt'*Hid lo this lime. Ihe Mid
Jtosnuua Ji>hn llerrev has never <i«i led the
MMElizahtlh Uert<y': and this was nnd is
!■•; and lh« party proprinent doih nlleilge
mi fMyauod M before.

" 0. Ttiil oil and smc'dnr liie piernirea were
■i- I-, ami there-

'' ■■'■. fame, and

'' .■ made, the

r fii«ice to be

n»H, ■■»« that •! may Iw pronounced, that the
•M nvlit luinnnrahle Aii^tlun Joiio Hervey
MlEkufKibChnattigh wereand are lawful
.. . ^.. Oeo. H.

A. D. 177(J. [38»

this behalf, and lo all intents and purposes ia
law whalsoeTer, say, alledge, and srticulalelj
propound as fblktwa ; lo «il i

'■ 1. That BB well betore as erer since the
pretended lime of the pretendeit marria^

f leaded and propounrled by the right honoura' ,
le Augustus John Heiley. the other parly in
this suit, to have been on or about the 4lh of
AuguM 1T14, ihe said honourable Elliabeth
C'hudld^h has always passed as a single wo-
iiisn, and has always gone, been known, and
been nddrecsedbythensueof Elizabeth C'hud-
lei^, and by no oilier, and hath always vUited
and received visits as a single womiD, and hath
always lived separate and apart Trom the said
right hououmble Augustus John Hervey, with-
out any interposition, let, or hindrance of ih*
said right hnDonrable Augustus John Hervey,
and hath not at any time lived or cobabileif
with him, or he with her ; and this was and is
true; and so much Ihe said right honourabla
Augustus John Hervey well knows and beltevea
in his cooscieoce to be true ; and the party
propunenl doth alledge and propound every
thills' in (bis article contained juinlly and sfr.
verally.

" 2. Thut in Ihe vetr of our Lord 17-13, tha
said Elizabeth Chudleigh wasadmilied a maid
of honour to her royal highness the princesn of
Wales; and on the death uf his royal biehnesa
the niioce of Wales, on or about the ITih of
April 17SI, re-admittetl and continued roaid
of honour lo her royal highness the princess-
dowager of Wales, without any let or hindrance
of the said right honourable Aagusiii* John
Hervey, and bulb duciag the who'e of the said
time continued aud noir continues a roaid
of honour to her royal bighuesii ihe nrincesi-
dowBger of Wales, wjlhoni any let or hindrance
of the said right honourable AngUElus John
Hervey ; and this waa ond ia true ; and so
much the said light honourable Augustus John
Hervey jtnuwa nnd believes in hi* conscience to
be true ; and tho |>any proponcut doth alledgs
und propound as before.

" 3. That in supply of proof of the premises
nteiitioued in the next preceding article, tho
party pioponent doth exhibit and hereunto an-
nex two certificates, and copies of the entries
from the treasurer's office of the princess-
dowager of Wales, marked wilh the letters A
and B, of the admission of the said Elisabeth
Cbuilleighasiiiaiil of honour, and of her con-
tinuance now in such post, and prays that tha
same may be here read, and taken as if heie'
inserted ; and doth alledge that thr same cot
tain troe copies of Ihe entries or the said Eli-
zabetli Chudleigh as maid of honour, and woa
and is signed by Mr. William Watts, deputy-
treasurer to her royal highnesi the princess-
dowager of Wtdes; and that Elisabetli Child-
leigh ihereiu natnttd, and Blixabelh Chudleigh
party in Ihia suit, was and is one anil the anro*
persuD, and not divers : and the party propa-
iienl doth alledge and propound hi belure.

'■ 1. Tlial in Ihe year ny^. Ihe >aid EUxa.
bttb ChudleiKh,ioh«rowu name is a apinstcr,'

583]

16 GEORGE III.

Trial of the Duthtu ofKingiloH,

[384

anil without my interposition, let, or hindrance
of the said rii(ht lionoarable Auguitui John
Harvey , (»r hin lieinnf a party thereto^r any. ways
concerned therein, took a lease of the ri^nt
hon(»u<-alile lord Berkeley of Straiten of cer«
tain land in llill-atreet, in the parish of St.
Creor^e, Hano?er square, in the count v of
I^liddie^x, whereon the said Elizabeth Cuud-
leigh caused to be built a house, wherein she
continued to live for the space of five years
and upwai-ds, and afterwards sold the same to
Hugo Meynell, esquire, and received the
money proceedintr from the sale thereof to her
own use : and this was and is true ; and the
party proponent doth alledge and propound as
before.

<< 5. That in supply of proof of the pre-
mises mentioned in the next preceding article,
the party proponent doth exhibit and hereunto
annex the original lease of the lantl aforemen-
tioned, dated the 14th of April 1753, executed
by the said lord Berkeley and John Phillips,
who was interested therein, and thereby leased
to the said Elizabeth Cliudleigh, spinster, her
executors, administrators, and assigns, for the
term of 87 years, and marked with the letter
C, and prays that the same may be here read,
and taken as if herein inserted; and doth al-
ledge that every thing waa so had and done as
is therein contained ; and that Elizabeth Chud-
leiffh, spinster, therein mentioned, and Eliza-
beSi Cliudieigh, spinster, party in this cause,
was and is one and the same person, and not
divers : and this was and is true ; and the party
proponent doth alle<lge and propound as before.

*< 6. That on the Sd of February, in the
year of our Lord 1757, the said Elizabeth
Chudleigh, spinster, was admitted a copyholder
and tenant to the dean and chapter of Westmin-
ster for the house and land, or some part there-
of, wherein she now lives, at Kuightsbridge,
in the county of Middlesex, in her oivn then
and now maiden name of Elizabeth Chudleigh,
and without any interposition, let, or hindrance
of the said right honourable Augustus John
Hervey, or without his being a party thereto
or any ways concerned therein: and this was
and is true ; and the party proponent doth al-
ledge and proptiund as before.

** 7. That in supply of proof of the premises
mentioned in the next preceding; article, the
party proponent doth exhibit and hereunto an-
nejc, and prays may be here read and taken as
if herein inserted, a copy of the court-roll of
the said Elizabeth Chudleigh's being a<lmiited
tenant to the premises mentioned in the next
preceding article, and marked with the letter
D; and that Elizabeth Chudleigh therein
mentioned, and Elizabeth Chudleigh party in

parish of Kensington, in the county of Middle-
sex, and this wiSiout any interposition, let, or
hindrance of .the satfl right honourable Angus-
tus John Hervey, or his being a party thereto
or any ways ooocenied therein ; and in such
lease the said Elizabeth Chudleiirh waa de-
scrilied by the name of Elizabeth Chudleigh:
and this was and is true ; and the party propo-
nent doth alledgeand propound as before.

'* 9. That in supply of^proof of the premtsei
mentioned in the next preceding article, the
party proponent doth exhibit and hereunto an-
nex, and prays may be here read and taken at
if therein inserted, the said lease mentioned in
the preceding article, and marked with the let-
ter £ ; and doth alledge that every thing waa
so had and done as therein is contained ; and
that Elizabeth Chudldgh tlierein named, and
Elizabeth Chudleigh, spinster, party in this
cause, was and is one and the same person, and
not divers : and this was and is true ; and the
party proponent doth alledge and propound as
before.

'< 10. That Mrs. Ann Hanmer, the annt of
the said Elizabeth Chudleigh, spinster, the
party proponent, and who, in the second arti-
cle of the pretended allegation atlmilted on the
E art of the said right honourable Augustus John
lervey, is pretended to have been present at
the pretended marriage pleaded by the said
Augustus John Hervey, did, in the year 1769,
write a letter wirli her own hand to the said
Elizalieth Chudleigh, spinster, wherein she ad-
dresses her as a single woman, therdn calling
her * dear Mrs. Chudleigh ;' and also in or
about the year following did make her last will
and testament, and codicil, the codicil not dated,
but the will bearing date the 11th day of Jddo
1763, and both will and codicil, as well as the
letter aforesaid, are of the hand-writing of the
said Mrs. Ann Hanmer, and so known to be by
|>ersons who have seen her write and subscribe
her name to writings, and are well acquainted
wiih her manner and character of hand- writ-
ing ; and in which will and codicil, proval in
the prerogative court of Canterbury, and now
remaining in the registry thereof, the said Mrs.
Hanmer hath by the will given a silver sugar-
urn and spoon, und by her codicil hath given
and bequeaihe<l a legacy of 100/. to the said
Elizabeth Chiidleigli, by the name and descrip-
tion of the hooouraOlc Mrs. Eiizabetii Chud«
leigli : and tins was anil is true ; and the party
proponent doth alledge and propouml as before.
*' H . That in supply of proof of the premises
mentioned in the next preceding article, the
party propouniling doih exhiliit und hereunto
annex, and pruys may be here reail and taken
ns if herein inserted, the said letter marked with

this cause, was and is one and Uie same perikon, i the letter F, beginning thus; * Siinning-hill,

and not divers : and the party proponent doth
allege and propound as l)efore.

<' 8. That in the year of our Lord 1762, the
said Elizabeth Chudleigh, spinster, trauHUfted
business with John Butcherin her own maiden
name of Chudleigh, and took a lease from the
Slid Mr. Butcher of certain lands situate ip the

i

August the 14th— 62- Diar Mrs. Chud-

* leigh,' and i nditig, * I am, il 'ur .Muduni, your

* sincere well-wiHlier and hinnble servant,

* A. Hanmer;' und also duth exhibit a copy of
the said will and codiril uf the said Mrs. ifan- •
luer, marked with letter G ; and duih alle<lgn
that Mrs. Hanmer, the aunt of the party pro*

SB5]

Jbr Bigamy.

A. D, 1776.

[386

poneBt, who vnrtte the mid letter to the said
Mrs. Chudleigh, and who made the said will
Md codicil, aud Mrs. Hanmer, whom the said
right hooourabic Augustus John Henrey pre-
tends to ha? e been a witness to his preteuded
nafriagv, was and is one and the same person,
and act di?ers ; and tliat Mm. Cliudlciffh men-
tinned in the said letter, and the honourable
Hra. Elizabeth Cliudleigh mentioned in the
aaid laat will and codicil, and filizabc^th Chud-
Icifffa, spinster, party in this cause, was and is
the same person, and not divers : and this was
■nd is true ; and the party prop«>nent doth al-
lege and propound as fieture.

** 12. That Mr. Merrill, at whose house the
•aid right honourable Augustus John Hervey
hath bleaded the said pretended marriage to
4ftTe been solemnized, wrote two letters with
his own hand, and sent them by the post to the
•aid Eliaubeth Chudleigh, party in this cause,
wherein he addresses her as a single woman,
the aaid letters heiii^ dated Nov. Ist, 1765, and
Mov. 3d, 1766, written in one sheet of paper,
and superscribed or directed thns ; < To the
^benonrable Mrs. Elisabeth Chudleigh, at

* Chalmingtnn, near Dorchester, Dorset ;' and
IB the letter of the dd of Nov. 1765 are these
verds, to wit; ' 1 have added your christian
■ aanie to your surname in the direction of this,

* lest the word honours hie should not be snffi-
'cievt to prevent a Idunder, and the letter

* abouM be given to Mrs. Chudleigh. I have
' net with so many and such gross blunders,

* that I think I can never enou«;li guard against

* them ;* and the party proponent doth alledge,
that by these vwrds, * should be given to Mrs.

* Chudleigh,' was meant Mrs. Chudleigh, at
Chalmington, aunt to the said Elizabeth Chud-
Irigh, the party pro|M>nent, at whose house she
then was : and this was and is true ; and the
•arty proiNioent doth allege and prujMund as

** 13. That in supply of proof of the pre-
mises in the next preceding article mentioned,
the party proponent doth exhibit and hereunto
annex, and prays may be here read and taken
•i if herein mserted, the said two tetters men-
bsiicd in the next preceding article, the iirst
marked with the letter II, beginning thus,

* Lainstone, November the Ist, 1765. Dear

* Madam, though I have nothing particular to
' write to you o|»on,' und ending thus,
'Though had I mentioned it to them, Mrs.

* Kelly's snci Mrs. Eistop's would not have
*been waning. I am, dear Madnm, your

* most obedit-nt humble servant, John Merrill ;'
and the other letter, marked with the letter I,
beginning thus, * Noveinlier Sd, 1765. Dear
' Madam, the above, as you see, was intended
< to flpu hy the last post,' and f udintr thns, * that
' i think 1 can never enough guard against
'ihem. 1 am, dear Madam, \our most f»be-

* diciit hnmlde servant, John Merrill ;' and the
party proponent doth alledge and propound
that the whole bmly, subscriptions, and siiper-
ecriptioD of the said letters were and are of the
|ii*n|icr band- writing and subscription of the

VDL. XX.

nid John Merrill, and so known and believed
to be by persons who are well acquainted with
his manner and character of hand- writing and
subscription ; and that by the words, *• I have

* added your christian name to your surname

* in the direction of this,' was meant and in-
tended the christian and surname of Elizabeth
Chudleigh the party in this snit ; and that the
honourable Mrs. Eliz^ibeMi Chudleigh men-
tioned in the said superscription, and the ho-
nourable ElizaU-ih Chudleigh party in this suit,
was aud is one and the same fiersoo, and not
divecs: and this was and is true; and the
party proponent doth allege and propound as
before.

'* 14. That the said Mr. Merrill hath alao
in and by his last will and testament, bearing
date the first day of January 1767, prove<l in
the prenigative court of Canterbury, and now
remaining in the registry thereof, given and
bequeathed a legacy or legacies to the said
Elizabeth Chad&igh, spinster, party in this
suit, by her then and now maiden name of
Elizabeth Chudleigh : and this was and is
true ; and the party proponent doth allege and
propound as before.

" 15. That in supply of tlie premises men«
tioned in the next preceding article, the party
proponent doth exnibit and hereunto annex*
and prays may be here read and taken as if
herein inserted, a copy of the clause of the will
of the said Mr. Merrill, marked with the letter
K ; and doth allege that Mr. Merrill at whose
house the pretended marriage pleaded by the
said right nonourable Augustus John Hervey
is said to have been solemnized, and Mr. Mer-
rill who made the said will, was and is one and
the same person, and not divers ; and that the
honourable Elizabeth Chudleigh mentioned in
the said will, and the honourable Elizabeth
Chudleigh, spinster, party in this suit, was
and is also one and the same person, and not
divers : and this was and is true ; and the party
proponent doth allege and propound as before.

" 16. That in the year of our Lord 1766,
the aaid Elizabeth Chudleigh borrowed of Mr.
John Drummond, a banker, at divers times, on
mortgage and bond security, in her own name,
and without any interposition, let, or hindrance
of the said right honourable Augustus John
Hervey, or his being a party thereto, or his
being any ways concern«id therein, the sum of
6,160/. and gave the said Mr. Drummond a
bond for 1,000/. part thereof, in her then and
now maiden name ot Elizabeth Chudleigh*
and also mortgaged certain premi>es situate in
the msnor of Kniglitsbridge, in the county of
Bliddlesex, in her said then and now maiden
name of Elizabeth Chudleigh, unto the said
Mr. Drummond, (or the repayment of the sum
of 4,160/. to the said Mr. Drummond, as will
appear by the original bond and mortgage-deed
now in the custody or power of the said Mr.
Drummond, to which she refen? ; and the
party proponent doth allege that Elizabeth
Chudleigh mentioned in the said iNind and
mortirage-deed, and Llizabeth C hud Icigh, spin*

2C

887]

18 GEORGE m.

Trial of the Ducheu of Kingston,

[888

Iter, party in this suit, wu and is one and the j and the party projionent doib allegte and pr»«

same persuu, and not difers : and this was and ' pound as before.

is true ; and the party proponent doth allege ** 91. That the said Mr. William Field, as

and propound as before.

'* 17. That in supply of proof of the pre-
mises mentioned in the next preceding article,
the party proponent doth exhibit and hereunto
annex, and prays may be here read and taken
as if herein inserted, the counterpart of the said
mortgage- deed, dated the 18th of April 1766,
marked with the letter L ; and doth allege and
propound that the same was and is the coun-
terpart of the said mortgage-deed remaining in
the custody or power of the said Mr. Drum-
mond, as mentioned in the next preceding ar-
ticle ; and that Elizabeth Chudleigb mentioned
in the said bond and mortgage- deed, and Eli-
sabeth Chudleigb, spinster, party in this suit,
was and is tbe same person, and not divers :
and this wan and is true ; and the party propo-
■enl doth allege and propound as before.

" 18. That in the month of February in the

J car of our Lord 1765, and in tbe month of
nne 1768, the said Elizabeth Chudleigb, spin-
ster, borrowed of Mr. William Field, of the
Inner-Temple, attorney at law, seferal nums
of money, to the amount of the sum of 1,900/.
or thereabouts, for which she gave to the said
Mr. Field, as security, two bonds in her own
Dame of Elizabeth Chudleigb, without the in-
terposition, let, or hindrance of the said Au-
gustus John Heivey, or without his being
party thereto, or any ways concerned therein :
and this was and is true ; and the party pro-
ponent doth allege and proiiound as before.

** 19. That on or about tbe S5th of February
1756, administration of the goods, chattels,
and credits of Harriot Chudleigb, late of
Windsor- castle, in the county of Berks, widow,
deceased, the mother of the said' Elizabeth
Chudleigb, party in this suit, was granteil to
tlie aaid William Field, as the attorney and for
the use and benefit of Elizabeth Chudleigb,
described in the said administration, and in the
recerds of the prerogative- court of Canterbury ,
by the name and description of Elizabeth
Chudleigb, sjpinster, the natural and lawful
daughter andf only child of the said Harriot
Chudleigb deceased, without the interposition,
let, or hindrance of the said right honourable
Augustus John Hervey, or without his being
party thereto, or any ways concerned therein:
and this was and is true ; and the party propo-
nent doth allege and propound as before.

** 80. That in supply of proof of tbe pre-
mises in the next preceding article mentioned,
tbe party proponent doth exhibit and hereunto
snnex, and prays may be here read and taken
ss if herein inserted, a cop^ of the administra-
tion-act entered on record in ihe aaid preroga-
tive-court of Canterbury, and sisoetl by the
deputy-registrars of the said court, or one of
them, marked with the letter M ; and doth al-
lege that Elizabeth Chudleigb, spinster, there-
in menlKMied, and Elizabeth Chuilleigh, spin-
ster, party in this cause, was and is one and
Iks BMBs psnott ; aud this was sad is tms;

the attorney of the said Elizabeth Chudleigh,
and by virtue of a letter of attorney from Tier
for that purpose, given in her name of Eliza-
beth Chudleigb to him, used to receive her sa-
lary as maid of honour, without any ioierposi-
tion, let, or hindrance of the said right ho-
nourable Augustus John Hervey: and this
was and is true ; and the party proponent duUi
allege and pro|iouiid as before.

" 22. That on or about the fil>h day of ITay
1766, the said Elizalieth Chudleigb, parly ia
this suit, presented, in her ov^n name of Eliza-
beth Chudleigb, by virtue of a preseuistion
signed by her for that purpose, the reverend
Mr. John Julian, junior, to the living of Hartr
ford, in the county of Devon, who wan in vir-
tue of the said presentation duly instiiuted and
inducted to the saiil living, withoui any inter-
poaition, let, or hindrance of tbe said riuht ho-
nourable Augustus John Hervey, or hi> being
a party thereto, or any way aconcerned therein :
and that this was and is true; and the party
proponent doth allege and propound as before.

** 23. That in supply of the proof of the pre*
mises mentioned in the said next preceding
article, the party proponent doth exhibit an3
hereunto annex, and prays may be here read
and taken as if herein inserted, an authentic
copy of the said presentation marked with ths
letter N, signed by and

also a certincate of the institution of the said
reverend John Julian to the said rectory of
Hartford, signed by Richard- Burn, notary-
public, secretary to the lord bishop of Exeter,
and marked with the letter O ; and doth al-
ledge that Elizabeth Chudleigb mentioned in
the aaid presentation and certiticate, and Eliza*
beth ChudJeigh party in this cause, was and is
one and the same person, and not divers: and
this was and is true ; and the party proponent
doth allege and propound as before.

•' 24. Thatthesaid Elizabeth Chudjeiijrh, for
many years subsequent to the pretended time of
tbe pretended marriage aforesaid, kept a current
account of cash with tiie bank of England in her
name of Elizal»eth Chudleif;h, aud as a singls
woman ; and also in all common as well as other
occurrences of buyiiigs and sellings, and other
money matters, whenever occasion happened,
the said Elizal)eth Clindleigli, spinster, parly
in this suit, hath, as well before as ever sines
the pretended time of the pretended marriage
pleade«l by the said right honourable Auiifiistus
John Hervey, constantly in her own name of
Elizabeth Chudleigb, Kpiuster, transacted such
business, by paying aud receiving money, giv-
inflf and taKiug receipts for the same, hiring
and discharging servants, and on all other oc-
casions, Hithout the interposition, let, or hin-
drance of Ihe said rii;hi honourable Augustus
John Hervey, or his being any ways concerned
therein: and this was aud ia true; and tbe
party propoaeat doth ailedge and propoimd m

for Bigamy.

ind liDgulir tb« preiuiMB
-ei« >m WT iruc, ami to furth.

" AttTii, Collier.
" Pet. Calvmt-

■■ VVll.WlfMNE,"

CimtiLEian *rjii[i«l tIeitvET. — Sentence mJ
and prumut^cd [he lOlb uf February 17G9.
In ihp nimcr or Gixl, >men. We John
wprth, doclor of lawi, ticBr-i^oeral of
ricbt reverend father in God Ricbard, by
"ipfrmiiaiDO, lord biabop of London, and
il principal of the consialorlal and e|Hico-
oourl of London, batini; sveo, beard, and
onderaiDod, and folly and inalurely diwusaed

A.D. 1776.

" Ir

tbtni

I and ci

b Cbudletyb. ol'ibe parish of St. Mi
; Wotininater, ill Ihe county of Middle-
|,apiiitleT, the party.agenl, and complainant,

' ■•- pjrt, and tbo rigbt honourable Au-

u HrrTey,ol'ihe jiariBh of ^t. James,
^Veitaiioiter, in tlie counlv nf Middlesex and
a of Lnodon, bachelor, falsely calling
r Ihr butband of the said honourable
lelb Chadleigb, the parly accused and
-'- ' ' n the other {•

piir proctora reiuecliiely, and the pvncior
' a Mid boaourable Elizabeth Chudkiicb
^iDg MniteDce lu be Kiteii and juilice tn be
Iklo hta party, and ihe proctor of the ikid
liffbl honuurablB Augaalui John Hfrcey altn
r../iieMly prayiaif a«Dteoce and justice tn be
' (IE 10 hiv aaid party ; and we liating care-
' illy lookrd into end duty cooaidered of the
■ Ucilr i>rr>i.'(«ding« hud and done before ur in
li.i' uiil I'll line, and obaerred by law what ouuht
Up \.r i.l.^rteil in ihia behalf, 1ia»e ihniigiht fit
Qiitl ilu liiui think 6t to proceed to Ihe g'ivinif
tiKi {iri>iiiiili{in|{ our definiilte sentence nr tioal
ii-rr-- III iJ>i> name eauar, in manner aud form
f.l;„«„iU(iu w.i:)

" Kijiuiiiiuch as by the acts rnacteil, alte^-

■■'■ I \U.'n,.f:\, propounded, proied, and confeaa-

II lie, we hafe found and clearly dis-

.MheproctDr of the aaid honourable

iiiidlciith halh fully Badaufficirnily

'■ |>riiteil his iiilenlioo deduced in a

' I uiid alle^atina and nllier pleadinei

" c'*'i> <D- enhibited, aii<l ailmitlpd

il in this aame cause, and now re-

.iic regi»try of this court (which

• • Ration and olber pleadinUB and

t ike and will have taken aa if here-

ri'l iuierltd fur ua to pronounce ■«

ir aball pronounce;) and ihnt nil'

, , - . . -Ill cflcctual in law, bu' b on the part

.' !•• bill ul the aaid ri)[bl buiiourahle Autfua-

Juka Hi-t'ey lieou excepted, deduced, ex-

luil, propoaoilnl, pmired. ar confetied in

' le to ikfcBl, prejudice, or weaken the inteu-
u aT tb« Mid bonaiuaibte lUixabelk Chud-

[390

leijtb deduced aa aforesaid ; and particularly
that tlio aaid rit(hl honourable Auniustus John
Herrey hatli totally failed in ibe pmiit' of hi«
nlleiriiiiaii iciien in and admitled in ihia cause,
whereby be pleaded and propounded a pre-
tended intu'riusc to have been aulemnized be-
Iweeu him hdJ thesaiil bnnuurable Elitabeih
Chudlei|{h, spioiler: and ibetefiire we John
Betlesworth, doctor of lawa, the jud|;e afore'
said, f)r«t catling upon God and aetting him
alone before our eyts, and b«Ting beard couniel
in this ctuae, do pronounce, decree, and'de*
clare, that the aaid honourallr Elizabeth Chud-
leigb, at and during all the time mentioned in
the laid libel picen in and admitted in this
cause, and now' remaiuiog; ii) the registry of
thb court, was and now is a spinster, and
free from all malrimonial coutracls or ea-
pousals (aa lar ni to us as yet appears)
more egpecielly witli the «aid right honour-
able Augustus John HerTey ; and Ibat the
said right honourable Augustus John llertey,
Dot with standing ihe preiniies, did in the yeara
and moniha hbellale, wickedly and inahci-
ouslv boast and publicly asieri (iliou|;h false-
ly) that he was cuotracled in mari'ia^e to the
said honourable Elizabeth Chudlcigh, or that
they were Jollied or contracle d together in nia-
trifflony : wberelure we do uroaouiicc, decree,
and declare, thai perpetual tilence muU and
aught to be imposed and enjoined the said right
honourable AugUEtua John lleriey as to the
premlsff tibellate, wliich we dn impose and en-
join him by these prescnlat and we do decree
the aaid right hounurable Augustua John Her-
vey to be ndmonished to delist from bis buaat-
iag and asserting that he was contracted to ut
joined with the said honourable Elizabeth
Chudleigh in matrimony aa albresald ; and we
ilo also pronnuDce. decree, and declare, that
Ibe aaid right honourable Augustus John Her-
Tey nugbt by taw to be cuodemned in lawful
expeiicet made or lo be made in Ibis cause oit
Ibr part and lirbalf of the suid bonouriible Eli-
zabeth Chudleigh, tn he paid to ihe said Eliza-
beth Chudleigh or her prodori and accord-
ingly we do condemn hmi in such expeDcea,
which we tax at and mudrtate lo the sum of
l(K)J.nf lawful money of Great Britain, braid ea
the expence of a nmnitiiin for payment ou ihia
beball by this our definitire senience or Rnal
decree, which we read and promulue hy thea*
presents. J. B£TTK5woitTU.

" Abth. Colller.

" PlT.C^LVEKT.

" \Vm. Wtnne."

This senieiiCB was read, promnlged, Bni]
girea by Ibe witbin-namfil the ticar-general
and nificial principal on Friday the tOih day
of February in the year of our Lord 1765. in
the dining-rnom adjoining to the comniun-hal
of Dociura Commona, situate within the parish
if St. Benedict, near Paul's wharf, London,
there being then aud there prenentlhe witueasrt
specified in the auts of court, which I at-
test.—M*uk Hoijia;^, nolarj.public, deputy.

391]

16 GEORGE IIL

Trial of the Ducheu of Kingston^

iSBKt

Mr, Wallace. Yoor lordihtpf tre now pot- oae Afses Adiiineihall, aad fobiwpiept to this

neftwfl of a Sentence criTea by Uie Cunsislory
Court of the bishop of London in « cause in-
stituted ihirre to try a claini made by Mr. Her-
Tev of Diarriafre with the no^Je priioner ; yonr
lonJshf|»* find by that sentence the claim eza-
mined, snd the decree prononnced upon the
ailf-^ationsand the ifridence fpven in the cause ;
by viliicb decree the noble prisoner at the bar
is (If claretl tree from all matrimonial contracts
and espousals with Mr, Hcrvey.

My lords, the noble prisoner by the indict-
ment is charireil, subsequent to this supposed
ma rriaj^e to Mr. Herrey, to bsYe married the
late duke of Kinsfston.

It is for ine now to submit to your lordships,
that this f entence is conclusiwe as lonr as it re-
mains in force, and that of necessity it must be
received in e%idence in all courts and in all
places w here the subject of that marriage can
becfiriie a matter of dispute.

My lords, I don't know any court which

msrriage a person of the naoie of Bontiag li-
belled sftninaA the wife of Tweede, clajmin|]^
under a pre-contract, and the spiritual court
enforced that contract: afterwards, oo the
death of Bun^in"*, a question arose between the
issue of the secfMid marria^ and the ouHateral
relations of Bunting ; the collateral relatioBS
insistiDi^ that the second roarrisKe was atterij
void, because there hsd ezisied a first marriage,
and the husband living at the time of the ae-
eond. Another objection I shall state to your
lordships was, that though it might be eooehi*
sive between the parties, yet Tweede the i^
husband betnfr no party to the suit, nor to the
sentence which dissolved the marriage betwate
them in the Ecclesiastical Court, it couM nal
affect him, nor indeed any body but the partita :
the resolution of the Court was, thst be being
then de facto the husband, thoueh be was eat
a party to the suit, nor in the Eoclesiaslical
Court, yet the sentence against the wife should

the cnnstiiiilion of this kingdom hss placed the I bind the huabaud de facta ; and ** fbrasmudh
decisions of the rights of marriage m but the ^ as the oognizaooe of the right of marriage b^
eccl^iiiastical : I believe it will not be contended, | longs to the Ecclesiastical Court, and the

that the common-law courts of this country t court has given sentence in this case, the

bare any such original jurisdictFoh. Mar- ' judges of our law ought (although jt lie
nages may indeed incidentally come to be dis- j the reason of our lau) to give fluth and credit
cussed aud determined in the courts of common I to their proceedings and sentences, and te

la«v, and in many cases absolutely necessary to i tbink that their proceedings are consonant te
the due administration of justice; but, my' the law of holy church, for* cnilibet in suo arte

lords, it will not be found, that where the pro-
|ier forum has given a decision upon the point,
the common- law courts have ever taken upon
themselves to examine into the grounds, or
at all question the validity, of that sentence.

My lords, as far as we have books to resort
to, we find instances from the earliest times
down to the present, where the power of the

' perito credf ndum e«t ;^ and so the issue of the
first msrriage, in consequence and upon the
credit of the sentence, were considered as le-
gitimate." My loni chief justice Coke has
also reported another case u|hmi tlie siibjec^t of
marrisge in the 40th year of oiieeo Elisabetb,
which your lortlsbips will find in the seventh

S art of his Reports, page 41, by the name ef
Leon's case, which is shortly tnis :-«Christo-
thccmimon-law courts, and where their deci- ' pher Kenii, esquire, married Elisabeth Stowell,
sionN linve been considered as conclusive upon , and had issue ; afiervrards the Ecclesiastical
every question in which they have jurisdiction, f Court pronounced a sentence of divorce between
and r«i|H'cially in cases like the present, par- Mr. Kenn and the lady, who were not of the
ticulnily ht longing to them. age of consent at thetime of the marriage;

My mrds, I don't know in the common-law ' and in consequence of this sentence he married
courts uiiy instance where the legality of mar- a second wife : the issue of the fir«t marriage,
riagi; con come directly in question, that the claiming the inheritance, exhibited a bill in me

courts lia« e decided upon it without referring to
the bishop, the ordinary of the place, to cer-
tify ; unless the marriage has been decided by
a suit instituted in the Ecclesiastical Courts.

Your lordships will permit me to refer your
lordshi|}s to those authorities of law which are
to lie found in our books ; and by the able as-
sistance which your lordships' indulgence has
given the prisoner at the bar, you will more
particularly have explained the nature of the
proceedings in the Ecclesiastical Courts, how

court of Wards of that day, in order to have
the benefit of the succession ; and offered to
prove, that though the sentence had been given
in the Ecclesiastical Court on the ground of
his father and mother being within the age of
consent, yet that they were above the age of
consent ; that in truth they had c(»habitH to-^
gether for eight or nine years, and had issoe
of that marriage. There could be no doubt, if
the matter was open to examination, that the
first marriage was effectual ; for in the first

iir and to what purposes in those courts they I piece, the parties were above the age of eon-
are conclusive, and where' they are open to ' ' .•*.... i • ...

such litigation. I shall beg to refer your lurd-
shina to a case reported by lord chief justice
Coke, in the fourth part of his Ueports, by the

sent, and if they had been under the age of
consent, yet their cohabitation together after
that age, and more especially as they had issue,
would have been sufficient to establish the roar-

name of Bunting and Addingshatl. In the . riage. It was argued too, that it was open to

S7th year of the rdgn of Elizabeth, there was
a marriage betweeo one Thomu Tweede and

examination, because both the statute and com*
mon law of the country take mrtioe of the age

Joy Bi^iini!/.

Hal ( ami Ihrrerore it wiit niuall} e^ra-

■llo K ooiiTI uf cumiiion Uw lo cxnmiiie

i|ilbr()aMliMi, a* loin GnclenMlital Court.

'"Wfurthwurgeil, that ihequEstian reUinl lo

ihnitKKK or which the Ec«lc«i«isticill Court

t nn Juriiulfaiiltiii or (yinlit)ul, ami IberrliuT

"^t » qUMlkm |irnp«rly belbrc ■ eoarl ol'

iqn law ; but the Caurl ilien conceitpd

idfM M far bound by >tie rieciaiim nl'lhe

tiaaricill Court, llinutrh roundcil on ftlte

_ atioB, Ihtt (hey held th« plainliffio ttait

!e OM vmilled tn my r^liel.

■jr tonh, I b#; le«*e (i> lraii1>1« your lord-

^ wilh (he wnnli of ilieCiMrt upon thai

■fler ctiiiag the rensoDS, tbc book

lit it )>u r«9nlTcil by «1l ihejiiRllcn" (for
M • wrenncc tn thv Iwo chief juctkes, lo
ff jnuicn, la llic chii-f bnran. tnd ttro
troni) *' Ihst the apnleiice Hhoiild cnn-
k ■* hog u It rpiiiflin^d in force." And,
"~'(, the reB*ioag'i»pn are, " thai the eu-
mI jndfe hu KDiencpd the cuntract
Tilpe lo be •oid and nf no rffwl ; and
l>fh Itiey ifte nf tlie a^e ol' cixiVent, ypt
p VrijiDK) conlrtcl « bi void and of uo ef-
ChM there traajust caiMe of divorcv ; and
r narriage had been wiibin (be age of
Ut, the vcdesiaBlical judgv is jud^ aa

M ■bull he a aufficjenl nstenl or nol ; and il-

ti.ii.<<T|i I lie (^;|.-le■i■Bti(■al jud^ cbewa Ihe cause

< "tice, yet fbravmueh as he is jiidj^e

' jkikI matter, that ii of ibe liinfulntva

ni..iTij|[#, we irtll nerfr pitamitie ihe

' iir, ohrther it belnienr I'aHe; forof Ihinspi

ii' cif:«'z4ncF wh^recf bel<iDg« In the Erele-

' .\<ix«l Cniirt, me oiii;bt tn give credit lo iheir

, a* ihry giie lo the juil^enls Id

if ilw

F had Iweo on aeiitence of (be l£c-

i) Cnnri, no ilmihl could have rxiiied

'it of Mweetainn : but ihe seolPiice in

■I Court Iiavilie inlerposeil, the

B Iaw conceived Ihetnaelres ah-

I, nay, that (hey had no rietii tn

raUse of Ibal lenience, for it waa

iBady ofecdesieiticBl jurisdiclion,

M give faith and credit to Ihe «eii-

klttctMla«iic*l jndge in thut cause.

^^1 vrWi Hod that my lord chief

» lung a([n as the

1 the 4lh. where llie aame doe-

MAMtfnwn in (be BcrieslBEtiioal Cnurl

oipliile and deciiive Jiiriadictim

FT«pi, from the rejKirter
■ *hn delemiined liitin,
:w. I take in be of the
ii<l arkmiwInlKinfT 'hnse
ir freifiienHy In (he boobt,

a{h not imdiT tnU-inn decinimn. hut at Itife
I DpiniMi* ul .tudgaa and «i' liiryera

Btb«aa(lu*tgfr

A. u. nits.

[39*

. My lords, I ilid bcl'ure mentinn to ynur lord-
■hips a cue froin Canheo ; 1 aiMlJ iif)t «tate it
Iiarliuularly bow, but ouly tn the point which
we era nuw upon, that ii, ol' tlie •enieuoe bemg

My lords, thie was not, as anpiMMed ih the
artriituent, a «ui prim opliiiia), which e*ery
jiirli>e mtisl give wilh theiiilbTmaiion lie carrits
nith him, and wilhoal Ihe amiaiance of the
rest of the jurlg:ei of tbe court, but a ■ulenn
drcltion in trial at bar iji the court nl' King's,
bench in Ibe4ih ofkmgU'illiim, when I thlok
kird chiel jiistioe Rnit jireaidcd in (bai court:
it waa loo upon a smteuce uf jaclitatioD of
niarringfl, which your larTisbi|>s liHTe iww be-
tiire you, whicli was there held lofaecanctV'
aive eviilence, aad lUat nn testimony whnteTtr
oiirfat lo be received i^insl it, Yuor lorilibipa
will take the wnrdK of the CauH Wfioii ihat oc.
casion : '• npoa the debale, Ihe Cmtrt were all
of opioion, tiiat this Mnience wIuIhI anre)wa!eci
ITBB cDDrluaite igatnat all mailers (K-ecnlent ;
and thai the lamporal court* muil give creiKt
(a it unid it is reversed, being a mallet of ineie
eptritual cof^nitance."

Your larHiliiii* lind, Ihat in ihe rrign of
king William, that nul Inn which had frmn all

. time prevaiinl »ai as strong as ever, and Ihat
tbe jiiilges of the court of KtogVlwnch, m

i which it wa» tried, were alt dearly of npinion,

I that a ca«p like ihe preHrnl of jaetiiaiinn of
raarriBge was cnnclimive upon tbe point, till it ,

I was reversed or repealed.

My lords, the same doctrine ia laid down by

, my lorii chief Jmtiee Hull, uhn presiileil at
Ihe trial nf tliia cause, in a case re|)oned in
SalkeM, «90, by Ihe nameol Blaobhura'a mw :
lllunia upon the riaimof profterly In tliegooda
of a woman deceased. Tbe ptainiilT proved
Ihe goodH lo be In hi^ pnsaeulon, and lo be

, inken away by the drfrmlnnt. Airaii^il this
daim nf itie plainlilT, the defendant sheWMl
Ihat thcK wore the gunils of one Jane Black-
ham In her hle-ttme, and thai Ihe defemlaat
hadiukenoul letters of adminisiralinn in her,

' and so WB« entitled lu the goods. Upon this
the phunlifT pmtert, that some tew tfaya befoK
her (tealh she was aclnalty married to bim ;
and ill answer lo lltat it was toalMed, that tbe
8pi[ilua1 CAOrt had deierminevl the right to be
in the defendant ; <<» they coirid not here
granted administration lo Ih« delendatil b4t
upon a Rupumiiion tliBI there was no auch mar-
rlBBi- i anit that this aeaience being a matter
(finiin their jiirndicllon was conclatlve. anil
couM oM be gaiiisaid as in evidence. My lonl
chief joBlice Hull, who was the jud^ mtting
St Nisi Piiiia, wbii ilrtermined the cane 1 ia«t
cited, injB ihiwi " ■ matter whioh has been
ilireclly determineil by their senlenoe cannot
be |>«maai<l ; their aentenue i^ cnncliisive in
Biieh cases, and no evident^ shall be admitted
In prave the eanlrary ; but Uieu it must be la
point directly tried."

My kird»,the sentence More your lordship*
•I preaent is in a cause, where ihu diject of the
pruiecutioii was to queation the claim of mar-
riagc, and where the marriage ii the point di-

305]

16 GEORGE III.

tectly tried and detertnined ; to that ftecordini^f
to lord Holt's opinion, ifthe sentence be directly
upon the question, it is so conclusive, that it is
not cooDpetent for tny court of common Itw to
eztmine into the matter, or recei?e any evi-
dence to contradict it.

My lords, these are cases as far as hare hap-
pened in the courts of law.

I shall now trouble your lordships with a case
determined in the llouse of Lords, under the
name of Hatfield and Hatfield : it came on be-
fore the House of Lords in the year 1725.
The case, as collected from the printed cases of
the times, is thus:— one Leonard Hatfield mar-
ried Jane Porter, who had diflerent names I
see assigned her, and by his will made a pro-
▼ision for her as bis wife. In March, 1730,
■be filed a bill in the court of Exchequer, in
Ireland, where the subject of her provision
lay, against Leonard Hatfield, a son by a former
wife, and against a trustee, to have the benefit
of the provision. In January following the
defendant, the son and heir of her husband,
having discovered that she had been before
married to one Porter, which Porter was then
living, he procured a release of part of the
provision from Porter, and filed a cross- bill for
m discovery of the marriage, and to stay the
proceedings upon her bill. In this cross bill
ne questioned her upon her marriage to Porter :
she denied that she had ever gone by the name
of Porter ; but with respect to a marriage with
Porter, she pleaded! hat she ought not to make
a discovery, because it tended to criminate her-
selff and being* an accusation of bigamy
Mffainst her, the jjtlea by the rules of the court
of equity was ot course allowed, that court
never compelling persons to discover on oath
crimes which may be the subject of prosecution
against themsel? es.

My lords, however by the plea one pretty
plainly discovers, that there was reason to sup-
pose she was the wife — indeed she knew it— it
was capable of proof, and would be proved in
the cause.

My lords, they proceeiled to the examination
of the witnesses, and clear evidence was given
that this woman was the wife of Porter:
Porter himself had confessefl it in his answer,
and he had stated the minister and the wit-
nesses who were present at the marriage ; so
that he gave Hatfield, the heir at law, an np-
portunity of bringing direct proof of the iiiar-
riai^e from the very persons present. This I
woman, finding that she would be pressed by
that proof, had recourse to the ecclesiastical
court : she instituted a suit against this Porter
of jactitation of marriage, pending the cause ;
and aAer depositions taken, though not pub-
lished, she got Porter over to her interest. He
was willing to defeat that release which he had
given; and therefore he does not enter into
proof, but appears by a proctor for form's sake,
that a judgment might pass against him. Upon
Ibis tlie ecclesiastical judge decreed, as in all
causes of jactitation they do where they find
that there ii no marriagei that the party libel-

Trial of the Duchess ofKingston^ {390

linff was free from alt matrimonial eontracta
and espousals with Porter. Jn this case Porter
had given a release, as her husband had upon
oath, in the court of Exchequer in Ireland,
stated the marriage with precision, even named
the minuter and the witnesses at the mftr-
riage, yet in the ecclesiastical court he appean
by a proctor, and has sentence passed against
him, without insisting on the marriage or any
defence. The court of Exchequer in Ireland
received this sentence as conclusive agaitist the
marriage with Porter; they conceived they
were bound to give credit to the ecclesiastical
court. The plaintiff' in the cause, knowing in
what manner he had been deceived, that ia
truth Porter was the husband of this woman,
appealed to the House of Lords in England.
The House of Lords here couceived, as the
court of Exchequer had done, that the matter
was determined by a competent jurisdiction ;
and yet your lordships see there was fraud upon
the face of the proceedings, if it had been com-
petent to the Court to have entered into that
consideration : but the House of Lords here
conceived the matter at an end whilst the sen-
tence remained in force, and the decree of the
court of Exchequer was affirmed. Upon the
pleading this sentence, the court of Exchequer
in the first instance, the House of Lords in the
last, proceeded to determine the matter. Jt ia
so taken notice of by sir John Strange, in a
case I shall presently mention. It is taken no-'
tice of by a very laborious compiler of the
law, Mr. Viner : under his title of Marriage,
he mentions the ground of the determinatioa
thus:— the legality of marriage shall never be
agitated in equity, especial!}' after sentence in
the spiritual court in a cause of jactitation of
marnage, although the proceedings in the
spiritual court were only faint and collusive.

My lords, I take this to be a case of the
greatest authority, a decision o^ the House of
Peers in this country, and upon a point of jacti-
tation of marriatjre, a sentence of the same na-
ture with the present before your lordships.

I shall beg leave to trouble your lordsbipe
with a case or two more upon the subject,
which are of more modern times : one is re-
ported by sir John Strange in the second part
of his lleports, 960, uiidtT the name of Clews
and Bathiirst. The action was for maliciously
procuring the plaintiff's wife to exhibit articles
of the peace against him, and for liYiiig with
her in adultery : the plaintifl' proved the mar*
riacre by the parson ond a woman, and also a
consummation ; to encounter which, the defen-
dant produced a sentence of the consistory court
of London, in a cause of jactitation of marriaga
brought by the woman against the plaintiflT,
wherein she was declared free from all contract,
and perpetual silence imposed upon the plain-
tiff; which sentence was pronounced since the
issue had been joined in the cause ; and the
chief justice ruled this to be conclusive evi-
dence till reversed by appeal, and the plaintiff
was non-suited. Your lordships find here waa
a cause rightly broughti clear proof of iIm

Jqt Bigamtf.

„^„^ ., - - , 6 iriil by ilie
Sm^ nn^autlurilie fuel, but the prmli
II ilie (ccleHiiBileol cmirt i
uoee si' lb»t mtntage i
HiUlloa. Tbe chid' Ju>lira who Irird the
'Mur csmiiJered lliu hu»iiieM n cndiiileil ;
.. .1 il »*■ oi' no cuu'rqufncc uhen Iheiiecirion
"/•' uiailp I tf the mimicnl Wliire the trial, il
' iir miiiuKbt IfiuK by n court haviD); the
"IrfT aDil the iiilcjuriuliciiati ut' the iiittler,
mI mlKiie o|iiiiiun mutt be decisive; idiI
■«f(\jte. Iliui IK 11 the cause bail been bruuisbt
l'l-it« any »uil iiitlilulFd in llir rcvlrailitliual
owrt, ihKuiiVi ibere wd« nn iloubl or ihe fotiii-
W«n fur lh«t oBiiie, \v\ ihe leiiteuce i« per-
WIbI 111 hatr i-fl'i-cl, uiid l» non-«uil that plnin-
W <tbo haiJ beeu injured in the manner lb«
OM «talM.

If; birds, (here was lou, «t Ilie tame liltinp,
nnbrr cane wbicli is reporlefl in the iollowing
Jiilin Siruiii;e; of Da Costa auu
wliitli was an nclion upon a cnn-
irnwrriaK*, jicr terba de^ufuro, brousbl
' gvnllanian at^aiust the lady, who piNtied
mI pha HON auumptil. When Uit: plain-
d ofWDcd hli i-aie, the defendant offered
c a aenience uflhr G|<iritual court in
' « Ilie judge hid pru-
)t aijiainGl the mil for a solemni'iatinn in
af the church, and declnrcil Mt-s. Vitia
I fr«in all contract : and ihe Dbiel'jus-
d ihia to lie proper mid coiictuiiie eri-
tkalitwoa a cause within their J urix-
; that the nature at' the contract was
f «uniinable by lh«ra ; and therefore,
il dMrrmioeil, ne non-siiitrd tlie plain<
Mt eauie, though the plaiiililT there
md iraa ready lu liuve pruvol, the fact
irrUite brliire ihecourl; hut Ihe len-
ag ioterpaiied, the court cooceiied
lajHy that credit which every cnurl
dune in WcBlminster-Hall, which
.n e*pry Bue had dooe to the eccle>
teTjnrtadJcliun in catps uithin iheir jiiris-
Ml tod llndini; himielr ccuicluded hy
'Vfecttd die jilaintiff of Ihe effect of thi*
Slj lordi, itWDs in Ihia caie that the
r Batfictd and Hatfield was quoted as ao

, Ihete are cases upon tlie very

f marriage, ani! many of (hem your

"■ct an<l force and cou-

tr to that BOW under

bmi, thai Drajactitatiancaute. My
la ba* bvcn mare recently end within

I lb* huiuiiiiable Mr. Tharou Hcrrey,
(nan, to recuter a debt fur iie<«a'
I for hi. wife. An ihat Irjal the
ai prutril lo the idiifaction of the
It lirlvoiliiiil liiimd hable to pay fur
urix. Air. Hcrrey iu^litulnl a
eoiiiidory court of^lhe binhop of
jaclilaiiun, and he wm declared
i vyouMli ud cuuuacta uf umr-

rii« With It* My, llnnog the c«
oriiiiBienlrnce, lhougba|ipealiilfrom, nnotlier
creiJiior brou^hl an avtiou against Itlr. llerfey,
and hud to jirnduce in ciidence the aanie wil-
nenaea who had proved the one of the oilier
crtditnr belVire any sentence bad i>een obtained,
and had aueceedni ; but the learned chief jui'
tice whu tried ihat cause, conceited it was not
llien iipen to examinalioa ; tbat Ihnusb, iu th*
titst inslance, wlicu Ihecauseof Ihe (irvt credi-
tor catne tohediicuneil, there was no lenlenca
ill the eocleciastical court, aud of ueceitity ll)«
court of commiin law must decide upon th*
marriaije ; but there had ihen iutetteued a
Eentence in the ecclesiasiicai court, »liiclt,
whilst iu force, was cnnclusiTe ; and of courie
di^misMd the plaioliff'i claim; and the intent
of Ihat appeal na« ta luapend and reverie that
»entenc« ; yet n hile it stood unreversed it waa
conclusive, iheliict of marriage waaopen Iu no
exnininatiou in any court whatsoever, I'hls it
onlv an afHrmiince of the priaci|ileiof the law,
anil the dactrioe louud in ilie determiDtlioaa nf
a ihnnwind cases which the book) furnlab.
, My lords, it ii not peculiar to the case of
tnarnaife ; il is the same in other instance*
where ihe ecclesiaatical courts bare ihe juria>
diction ; ii is so In ihe probate of wills, it is ao
in Ihe granlingr uf letters of adininistralion : if
a will is frirged, if ■ will is fraudulenlly ob-
tained uf a persiinal estate, of which Ihe £c-
cleaiusticsl Cuurt has Ihe jurisdiction ; if (bat
court has granted a prubile, it is not open to
a court nf uninmon Ihw, il is not open to a
court of equity, to enter into the fraod uiade
use nf in uWininj; the will, or to Ihe forgery
comtnitled upon a testator. I shall refer your
hirdships lo a case or two upon thai bead : Ihat
of Noel and Wells, in first Levinz's IteporU
23i, in ihe ISlh ol' king Charles the second .-
it was an action brought by the executrix of
ibe hushanil, and upon ihe trial the plaintiff
produced Ihe probate of the will in evidence.
The defendant inslsteil the will wiu forged ;
and the chief juHice before whom it was tried
was of opinion, hecoutdnol give such eviUenc*
(lireclly ai;ainBt the seal of iheerdinary.in any
Ihlngi wiihin hit jurjidiclion: u[)on which a
case was made for the opinion of the court,
and a verdict was for the plaintiff, and ihe court
held that the chief justice at Ihe irlal had done
Tight in rejecting the evidence of Ihe forgery,
that no such evidence ought lo be given idl
the prohote was repealed '. they might indeed,
hy proving (he seal of the ordinary fui-ged,
hate relief i but if Ihu seal uf the ordinary waa
Kenuiue, then vthilever forgery nr fraud waa
comtnitled, it was not open to the examinalioa
uf a common-law court.

My lords, the same doctrine is lo be found
in the case of tlninsby and Kerrick and olheri,
which was delerminvd hy Ihe tinuse of Lonls.
It waa stated iu ihiil cnte, ihai one iloWt
Brtnshy, the complainant's sun, iNrmi; iniilled
10 ihe reversion of a freehold and copyboU
estate expectant upon the death of ibe com*
plsiuani,' made hit will, by which he gin all

16 GEORGE m. Trial if the Duskeisn/Khgf Ion

e 10 tliB defeniUnt i

zA

S99]

hi* n»\ and iicrsoml vitale 10 tliB defeniUnt i malter. Tli« same law hutdi in rKpeet In tha
Kerrii^k, atifl ntrule liim his exi^ciitnr, hIio courts of Ailniir&lty ; whether iiriie or not
proreil llie'will in (he EcdeslaUktil Cmiri, in prize. beloni^R to the Court of Ailnriraliy ;
cnmrnnn hrm : ahenTBrili, in a coDleit in the juritriictioD of' iliat court tJeciiles upon the inb-
Bodei>MslioBl Court tourhintf ibr vnlidttv of iject; though iliejr have given ■ wron); ileci-
' ' '" a^icen in favour oFthe | siun, though tliefacladiil milwafranlit, ilinu^h

Braniby. Ihe lather, ihejudge nas dona it corruDil;, yet it ii

fiW a bill in Chancery, to ^t asiile the will for lence which ilic

fraud and iiiipoaiiian.

mined, aoiS many acts and

imposiliiin were proted opon the defendiinl.

The i^aUM! came lu lie Leard before lord Mac-

cleiilield, then cliaiicellnr, upon Ihe 14lh of

Notember 1TI8, when his kirdship, struck

with the tnouEiniua fraud anil iulquilv of the

IrsDiaclion, declared (he executor should stand

as * iruiitee for the next of kiu. Ujioii appeal, and yon gi

the Uou«e of Lnr<ts reversed Ihe decree, upon , lion. I migh

huuud by, nhtr^Ter it coineslD lilipgniioi
and I have known, in point of experience, m «ji
actiun of Irespaai hmuglit here fur seitiiiff •
ahip, where it has been before a Court uf Ad-
miralty and receifed a decision, that the cnuit
of common law no longer entertains the caoae,
for the queslion of prize or not price is peou-
'' rly belonging to the admiralty J uriailictioii,
' ' uth and credit to ibil jiirisilifN<

refer your lordshiin ii

Ihe gffonnd lltat it wag not conitieieni
of eqnily lo examine into fraud and impoaitioa
in a will loucbing nersonal estate; that Ihe
conrt of ecclexiaslical jurisilictlnn had decided
that point ; that it was no longer open to dis-

My [onts, the same rules nblain with respect
lo every cntirt of compelenljiiriiiiliclion, whe-
ther Irirei}^ or domestic : we give credit to the
<leci»inus of all foreiipt courts in puinis within
Iheir proper jurisdiction, and do not examine
into the (nets, but are, concluded by the sen-
tence. I will only refer your lordnhips to a
«a«e ID sir Thomas Koymunil's Reports 473.
In the war between the l>ntch and the French
in the time of Charles the seotid, a ship was
seiied by the French as a Dutch ship, and
eondemn'ed. The ship being in truth English,
the porehiier umter the French condetntiation,
fcroughl the «hip into England, where the right
ftwtwr eerzed her : upon this an actinn waa
brotigitt by the purchaser under the condem-
BBliott. The defemlaitl, the original owner,
oBered to prove his property, and that Ihe ship
was neter a Dutch ship, nor was liable to be
■■ken and condemned hy the French : hut
what said the cnurir IVe must give credit to
Ihe eondeinnalion of the court in FranM ; we
are forced to give credit lu and belieie that this
•hip was in the condition of a Dutch ship, and
lulgeei (u a condemnation : anil, Dpan Ihe
ground, that if a court of competetrt Jurikdic- ,

lion giies a sentence, all other courts must he ■ Bramber, in Hussex, which
bound by it, the Englishmau was pivcliKled \ tnany records: it was a qnestinn wbjiberl
from asaerlmir his right.* It was the same r reconla wereadmisfiUe, or, if admiasifcle^
il|Hm a case of ai^ insurance, which wilt occur \ conclusive eridenoe. The counsel who m
to Mtne of rotir lordships, where the ahip wax ' in tiivour of iliase records and the coocti
trerraiiled 8h cdish, and condemned in the war which was to arise from Iheui, compaivd i
betweeu England and France : the parties i to the case nf ecclesiudcjil tenlencet,
were coiii;lude<l from insisting thai the ship is | would gladly have brought tliose reoords i
any lunger Swedish or a neutral, because a ; in that rule. The Court in that case aofcl
rl ofcoiDpetenljarisdiclion had decided the ledged ilie argumeai proper with respect K
Ecclesiastical ConrW. The C'

Ihe cases are iununieruble u|>oii the suliject) to
that of Burrougln and Janiinean, in Mrangfl,
iSS, which wasapoD a bill of exchance, wbet
by a peculiar local cuatnm within Leghai
it ia competent to the acce^ilor of a bill, ht
judgment of the court, to hate his aeceptai
annulled, if the drawer becpinen Iwokru ' *
fore the bill be payalile. There » nn sui
lathis country; yet, gifing credit lu th
teoce of that court, the Court ol Chancery ll
would not send it lo a trial at law, but iM
mined upon the piiini. that the Hentence io I
court was decisive upon Ihe snhjecl, it beini
matter within theirjiinsdiction.

My lords, in almost eyery case where jtw
menl, or records of other courts liavebeeq \
subject of discussion, the sentenee* of the 1
clesiaslical Court have always betn cited ■
argued from as cnnclunite upon the subjeoj
dispute, and the courts have uniformly a>loj
those oases as law ; but the attempt baa <
been to distinguish cases immediately bfl*
the court from those delermiued by tlie e4
aiaalical jurisiliction, Your Inrd^ips will
much nf that in Ihe case of Philipi and Bl
in Skinner, 468.

Mv lords, there wni a very late case da
mined in the eoiin uf Common Pletw,-
whicb is now got into print, reported by
Berjeant Wilson, which is Biddulph and Al
It arose upon a queslion uf claim by the d
of Norfolk to all wreck within the rsua

■ Meet Ld. Raym. aas. CnHhew 3'2. lUx

«. Raines, 1 LA. Kaym. S(i«, It! hfod. 180.

Oddy V. ilorill, 3 East 476. See also Hi at case

riled in 13 East 473 ; and the niher i

. Hargr;

that the seDleoce uf an Ecclesiastical Court, iik
a matter whereof they have the iole cogni-
zance, is conclusive evidence, and parole e^
dence shall never be received. My lard.i, U
is a mnnuicript nule in bring ot what
judges particularly said ; and I luid it ^

m

401]

fir Bigamtf,

A. D. 1776.

[401

cited, M one of th« instiiiccs where tlie «eii-
tence wm conclutive, by the learned chief jus-
tice irho tbeo presided in the Court: he says,
if ihere is a sentence in an Ecclesiastical Court
dedaring a marriaf^e— for instance, if it coutd
be proved by a hundred witnesses that the
parties were neter within 500 miles of each
other, that efidenee is not to be received, but
Ae jndf^nient of the Kcolesiastical Court is
eondu^ive n|Mni the |ioint. In many of the
ctaes I have cited to your lordships, the Ques-
tion came directly before the Court, and re-
erired a solemn disouwion : in some the doc-
tiue has been reeo^ized ; in none, nor in any
ewe that 1 know of, has it efer been doubted.
Hy lords, though the cases respect civil suits,
I tniot that no real ground of distinction can be
■■de between criniinal and civil proceed hi<]rs :
ia eivd suits, courts go as far as possible to re-
Rrre claims founded in equity and justice ; in
criminal cases, the leaning is always to the
defeodanto ; and therefore I should conceive
laeh evidence stronger, in a criminal pposeou*
tiin, in favour of innocence.

My lords, I will take the liberty, liowever,
of reminding your lordships of two or three
ciKs in criminal law, where the same doctrine
hn been established, and the acts of the Ec-
clesiastical Court deemed condusif e npon the
nbieet, antil reveroed hy appeal. My lords,
ia the 1st volume of sir John Strange's Re-

K, 481,* your lordships will find a case that
encd at the Old Bailey in the 8th of
|Scarge the Ist ; it was an indictment for forg-
^wg a will of a personal estate. On the trial,
Ibe forgery was proved ; hut the defendant
prodndng a probate, that was held to be con •
cMve evidence in support of the will, and the
defendant was acquht<Kl. This your lordf>hi|>s
iee was a prosecutipn for a very serious offence
iadeed ; a prosecution for the forgery of a will :
Ibe Ibrirery is staled to have been actually
poveil at the trial, but upon the production of
e probate from the EiSclesiastical Court, whose
Mitons are final and conclusive upon such
nbfceis, the defendant, was acquitted, and the
widenee of the forgery rejected. It ought not
^kave been received j* if that circumstance of
tbe probate had been discovered sooner to the
CSoert ; hut the defendant, perhaps conceiving
iIm there could be no evidence to affect him
viih the guilt of forgery, withheld the probate;
vbnever might be the reason, it is immaterial,
biprodoeed it in time to save himself; for you
mt receive a probate in the EccleRiastical

* This was the case of the King and Vin - ,
ent, as to which, see the remarks which were
Mde in the arguments on the part of the pro-
loeation in the case before us. 8ee, too, East's
n. Cr. ch. 19, f. 43, the various cases stated
ky Mr. Hargrave in his learned Discourse al-
liidy mentioned, and the reasons for the appd-
in Bouchier and others v. Taylor. These
as were written by Mr. Hargrave, and
efihem as relate to the matter before us,
M iaaerled in that trealioe.
VOL. XX.

Court against the testimony of ten thoumnd
witnesses.

Your lordships will find the same doctrine in
the same book, Ist sir John Scrange's Reports,
in the case of King and Roberts, where that
defendant exhibited a will in Doctors Com-
mons, as ezecntur, and demanded probate;
after long contest, it was determined in favour
of the plaintiff; and upon an appeal to th«
Dele^tes, this sentence was confirmed ; af^
the sentence, the parties who had brought it
about fiell out amongst themselves, and disco-
vered that the will which had been proved was
a forgery. The manner of giving relief waa to
grant a commission of review ; hut the person
who had l>een disappointed and injured by this
forgery, also preferreil a hill of indictment
agrsiost the persons concerned in the act of
forgery. The chief justice refused to try. the
cause wtiilst the sentence wns in force, but in-
sisted that it should stand off till the sentence
was laid out of the caae by the decision of tlit
commissioners under that commission of re*
view. My lords, in this your lordships find
the doctrine recognized in the strongest manner.

The next case, which came before the court
of King's-bcoch, b the King and Gardell.* It
was an indictment prosecuted by Mr. Craw-
ford, a fellow-oommoner of Queen's college,
for assault upon him. At the trial of the in*
dictment, the defendant, who had acted by thtf
orders of the college, produced the aet3 of the
college by which Mr. Crawford was expelled;
He caiue into the garden of the college after-
wards with an intent to take possession of bii
rooms, and the officer of the college took hold
of him, and conducted him out of the limits of
the college*; and this waa the assault in that
indictment, and* which was in point of law an
assault; and unless the defendant had a de-
fence, or an excuse for his acts, he must have
been tbuiid guilty. The act of expulsion was
Cfiven in evidence. An offer was made by Mr.
Crawfoi'il to prove the invalidity of thnso acts,
that by the constitution of this college more
persons were necessary to concur in an act of
expulsion than had been present at that time,
and other objections were made to the vaU'4ity
of those acts. The learned judge, before whom
that cause came to be tried, conceivai himself
concluded upon this subject ; that as the col-
lege had the sole jurisdiction of the cause, their
decision wa^ conclusive upon him'; and it did
not signify upon what grounds they had gone,
for the effect of their judgment was an excuse
of the defendant, and so long as it Vemained
uoimpeached, and unreversed in the proper
course, there could be no doubt but it furnished
protection to the defendant, or to speak more
properly, a defence airainst this indictment.
This doctrine not being satisfactory to the
gentleman, he brought the business before the
court of King's- bench ; and that Court were
onanimously of opinion, that the Court had

* See the Case of CoUett v. lord Keitl^ %
East, 360.
2D

16 GEORGE III. Trial of the Duchess o/Kingsioit, [4M

I lady at the bar hopes to avail herself, begin, at
I your lordships have heard, by a complaint op
iier part, that Mr. Hervey did, before that suit
was commenced, improperly and without
fi^round lay cUiin to her as his wife; in other
words, in the language used in that court, that
he did jaclitate that the lady was hit wife.
The suit being thus lft>gun, the next proceed*
ing in it is in the common way, where a persoo
thus called upon means to insixt u)»on a mar-
riage. The defendant in the suit admits that
he did claim the lady ast his wife, and contends
that be had a right to do so, because he was
lawfully man-ied to her. 8uch being his alle-
gation, her ladyship's answer to it is, that then
IS no foundation for his claim ; that she is not,
that she never was his wife ; and she states in
the allegations made hy her, which your lord-
ships iitive heard, a great variety of particulars
during a very long period of her life, in which
in the most public manner, and upon the moal
important occasions, she was universally re-
puted, received, and acted as a single woman.
Atlerthis ailec^^ation of hers, the next proceed-
ing was to examine a c^reat variety of wit-
nesses, upon tht: resul^of whose testimony fol-
lows that which is tlie important part of tha
business, that is, the scntc^ice of the ecclesias-
tical judge ; which sentence prun'Minces in tht
same way in this as in all other suits, whert
two parties liiiirate a marriage claimed on oot
side and denied on the other — that these two
parties were free from any matrimonial con-
tract. If that Heutence is to have the forct
which, a? it is apprehended by those n ho sit
on this side of the bar, by law it must have. It
will of course follow, that this indictment must
fall to the ground ; because the sole foundatioa
of the criminal change is the supposed roar*
riage with Mr. Hervey, which this sentence^
if concluhive, must unanswerably prove nevec
to hare existed. It must, we submit to youc
lordbhips, follow as a consequence, that this ifl
the iiroper place and poiut of time to stop: it
would be to no purpose for your lordships to sil
here to hear a long story, the ohjtct of which,
when the sentence was conclusive, would only
be to give pain to one whose sufferings no one
would wisii to encreasc, and at last, after it bad
been heard, no possible goo<l effeci could fol*
low fi*om it. As evidence ought not to be heard,
if this sentence is conclusive, because it would
he bearing that which could have no intentioOf
no . weiglu, no conserjueuce ; so it would to
nugatory to state it, and every body would wish
to dechne the hearing it for thu reasons to
which 1 alluded ; and I am persuaded, not ndj
for the sake of the noble lady at the l»ar, bat
for the sake of preserving that uhich ever/
one will always think of great importance, that
is, uniformity in legal dtrrisionsuiidjudicaturetff
that this sentence must upon this <»ccasioD, 90
I believe on every one has been in w bicli mf
such sentence has ever been pro<Uiced ia 0
court, be deemed decisive and unanswerable.

My kirds, that it ought to be so apon tUi
occtsioDf I will first eDdetfOur to ahew to jm

403]

done right at the trial of the cause to reject all
evidence u|)on the ground of these acta of ex-
pulsion ; that the acts themselves, being within
the jurisdiction of the college, were sufficient
for the defendant to avail himself of ; and that
it was not competent to the prosecutor of that
indictment to shew to the Court that these
were not regularly or onlerly done, or that they
were invalid in any respect whatsoever. My
lords, in that case the general doctrine was re-
oogniieed, that in all courts of competent juris-
diction their acts, however wrong they are, yet
while tirey remain in force, are conclusive
upon every other court : the cases of eccle-
■iastical sentences, and many others, were then
mentioned.

1 might refer your lordahips' memory to the
cases in Exchequer seixures, where condemna*
tions are given constantly without a defence
almost, and yet all other courts are concluded
by them. It has been tbouglit so extremely
bard a doctrine, that judges have wished for
the liberty of examining mto the fact, and to
have the matter fully discussed in the courts ;
yet when the matter came to be fully argued,
the result has ever been, that the judgment has
been found conclusive upoo all other courts
whatever.

My lords, under these authorities for a suc-
ceasioD of ages, 1 confidently rest that your
lordships will, in the present cause, conceive
the sentence of the Ecclesiastical Court now
produced, in a case clearly within their juris-
diction, in a case in which they have the sole
jurisdiction, to be conclusive ; no courts what-
ever have a direct cognizance of marriage but
the Ecclesiastical Court. Suppose a person
without any grounds whatever claims a mar-
riage ; it may be highly injurious to the lady ;
she has no remedy but by resorting to an ec-
clesiastical court, because there is no other
court that can bring the matter immediately
and directly in question : if a woman separate
from her lawful husband, what court is there
to compel her to cohabit with him but the cen-
sure of the Ecclesiastical Court? (t is that
forum which the constitution of this country
has intrusted with the decision of the legality
of marriages.

As there are not to be found, iu common-
law or ecclesiastical courts, any decision con-
, trary to those 1 have, with great deference, al-
ready submitted to your lordships' considera-
tion, 1 trust your lordshi|i8 will give that de-
termination upon the vahdity and effect of this
sentenoev which courts of law have ever done,
when a sentence of the same kind has been a
matter of discussion.

Mr. Mamfield [now (1813) Lord Ch. Just.
ofC. B.]. My birds; 1 am also to trouble
your lordships in support of that sentence,
which has been offered to you as conclusive
upon the present occasion. The sentence hav-
ing been read to your lordships, you are now
appriaeed of the contents of it. The proceediogs
ia the Ecclesiastical Court, of which the noble

405J '

Jbr Bigamy.

lordsbips by eoDsideriiig the nature of that act
of parliament upon wbicb' the present prose-
eutioo is founded, and the state of the law be-
fore that act of parliament was nnade.

My lords, the act of parliament creates no
■ew offence ; it punishes nothing; but what was
punishable bef<»re, a second marriage while a
rormer existe<l: takiosr a second husband or
wife while there was a former in l>etng, was
oadouMedly an offence lon^f before this statute
sf kint? James the first; indeed as long ati the
eecleiiastical constitution of this country has
Mbsisted. This act of parliament makes no
other alt^nration in the law, but as it subjects
persons committing this offence to temporal
prosecution and puniNhment; before this act,
soch an offence could only be the oliject of ec-
clesiastical censure and punishment : but, my
kiHs, the makers of this statute never dreamt,
that they were in any respect altering the ec-
clesiastical constitution of this kingdom ; that
they were in any instance invading or breaking
ii apoD the rights of the ecclesiastical courts :
DO Boeb thing is to be found in the statute ;
■Qlhhig is to be collecte<l from that. Indeed,
if yoo miglit collect from the preamble to the
ictof parliaroent, it will appear to everyone
vko reads it, that it was not in the imagination
sf those who framed this law, that a second
BMffrtage could be made the object of punish-
Mot, where there had been a sentence which
Pifteuted a supposed former marriage being
Wading upon the parties. When I say that, I
iHode tothe exceptions in the act, which make
M part of your lordships' present considera-
tion. But besides that, the preamble of the
■et tells your lordshi|»8 what it was that the
Mikers of it had in view : the preamble tells
ysir lordships, that divers evil-disposed per-
MBs being married, run out of one county into
■Mlier, or into places where they are not
bswn, and there become to be married, hait-
iB|^ soother husband or wife living, to the great
pleasure of God, and utter undoing of divers
Wst men's children and others. Now it
icfer was supposed by the makers of this act
*f parliament, that the persons described in the
Fcamble of it would go through the form and
ceremony of a trial and litigation, and q))tain a
^teision in the Ecclesiastical Court, before such
■ceood marriage was to take effect, which was
k^the object of this law: but it is enough
^ in this statute there is not any thing that
'e&ds to diminish or break in upon the domi-
>iooofthc Ecclesiastical Court; but that the
ilitote left those courts and the law relating to
^bem just in the same situation as they were
Mire. Now if this was an offence before the
>ct, how was it punishable? What would have
*ea the operation of such a sentence before

law ? Unquestionably, a nerson taking a
Ncood husband or wife, the first being living,
Aigbt have been made the subject of punish-
Mint in the ecclesiastical courts. Let me sup-
Piit a prosecution commenced for that purpose
W tbt oeeood husbuid or wife, the first hus-
mk or wila btiog living: those who ttand

A. D. 1776. [406

near me, who are much l>ettpr acquainted with
the proceeding^ of the Ei'clesiastical Court than
myself, will tell your lordsliips. tlia4, so, long
as this sentence remains, the relation of hus-
band and uife could not exist, which alone
must be the foundation of a prosecution ; for
tukmga second husbHud upon ibis statute, the
act ut>on which the whole proceeiling is found''
ed, having made no alteration in the case, the
law remains the same. It does not follow
from thence, nor are your lordshiiM to suppose
it, that such a sentence as this would in the
Ecclesiastical Court have made adultery law-
ful, or have made a marriage with a second
husband or wife a good one : certainly not ; bat
while the sentence subsisted, it would have
proved, that there was no first marriage at any
time by any parties interested. Such a sen-
tence as this may he undone ; it is a funda-
mental rule in all matrimonial causes in the
ecclesiastical courts, that, in their language,

* sententia contra matrimonium non transibit in

* rem judicatam.' The isSUe or the kindred of
persons intitled to estates may have a variety
of reasons for impeaching marriages. As to
the continuing in a second marriage, the con-
tinuing in adultery, the repeating it is only an
increase and aggravation of sin where the first
marriage ought to have prevented it. At any
time there may be a suit to restore and set up
a first marriage, which has been undone by a
sentence by accident, by mistake, by collusion,
or from any other reason not satisfactory. If
all the evidence that could have been had re-
specting the marriage has not been laid' before
the spiritual judge, any party who has any in*
terest may at any time again apply to that
court, again institute a suit, offer new evidence,
have that which has been already heard, heard
again, that the marriage, if it did really exist,
may be established by a sentence of that court :
this is, 1 believe, clear law, and undoubted in
that judicature. If it is, then your lordships
are not to conclude, that by any sanction which
you gire this sentence, you either authorize
adultery, or give effect to second marriages
while first marriages subsist; no, at any time
that first marriage may he established notwith*
standing a sentence against it, when any person
shall think fit in a It^al way in such judica-
tures to impeach that sentence : but all that is
contended for is, that while that sentence re-
mains, the matter is concluded ; the marriage
cannot be proved to exist ; the relation of bus-
band and wife is destroyed.

My lords, if this which 1 have now sub-
mitted to your lordships be, as 1 apprehend it
is, well founded in the known practice and law
of these courts, the consequence I trust will be,
that this sentence must now have the effect
under a prosecution u|k>u the present act of
parliament, as it would have had in a prose-
cution in the Ecclesiastical Court for an adul-
tery, or a crime against the first marriage. In
that judicature, the only one which by the laws
of this country has a regular jurisdiction to
enquire into marriages, by a solemn judgment

♦07]

16 GEORGE III.

Trial of the Dueliess of Kingston^

[406

lhe«e two parties are declared not to be mar-
ried ; that would have been aa aoawer to any
prosecution belbre the statute. Tbc statute
leanv tiie poiver of the ecclesiastical courts ex-
mclly as it was before ; leaviiif^ it so, a sontence
]Mronouiice«l by that court in a cause, in which
it has clear jurisdielion, must I apprehend be
decisive, ttut, my lords, it is undoubtoil. Va-
rioMs cases, whicq 1 shall not trouble your
lordships with the repetition of, have been men-
tionejd, which prove that to no purpose can tliis
noble lady at the bar and Mr. Hervey be con-
aidered as man and wife, or proved to be man
and wile while this senterice subsists. No con-
jugal duties can he i^xmcImI from one to the
4Mher ; was a wijOs starvivi^ in the streets, she
could not io any way obliire him to contribute
to her support. Wliilst such a sentence re-
BMifls, the woipan eamiot be a wife for any
beneficial purpose resultin|2r i'rom matrimony :
iud it will be, 1 believe, difiiciilt to point out
9oe for which ahe can be a wife, unless it be
fpT the aiugle purpose of subjecting her tp be
luinished as a felon for marrying a second bus-
uand. I can hardly believe lliat any human
creature can be found, who would wish that
th# coble lady at your bar should for this pur-
pose alone, and in this single instance, be
dfsamed a wile, when she can be in no other.
But if there he an^ who wish it, I am satis^Ml

iour lordships' mahea will goalonj^witb the
iw aa I understand it to be, if the law be so :
and that it will be very difficult to convince
your lordships, that she, who was not a wife
MNT any other purpose, aliouki be d^H^med a wife
in order to be subjected to criminal punishment
for an open, an avowed, and by hor thought an
honourable marrisfi^e wilh a noble duke.

My lords, in every insiance in which an issue
ip the teiu|K)rai couris, in the courts of com-
mon law, IK joined upfin matrimony, where a
marriage is in^isted upon on one* sidi* and denied
oo the other ; in every instance of that sort we
know the temporal courts decide not ; they
send to the spiritual courts to have the mutter
enquired into und decideil u|M)ii ; nothing is
more clear than that rule of law. 8u it is in
cases of dower; where dower is claiiue4l by a
widow, where it is denietl that sht> was ever
lawfully married to her husband, thi^ temporal
court sayt), it has no puuer t(» enquire into the
Blatter, it must reler it tu the spiritiiul court ;
and the decision of the bishop is ftnnl upon the
point. It is not only in the case of niurriage,
but in other cases, that the derision of the Ec-
clesiastical Court is the only competent one,
and is linal and conclusive to all pur|»oseM : so
it is upon questions of legitimacy, where bas-
tardy is al lodged and denied ; the common-law
courts decide not the point ; tliey send it to the
£cclesiustical Court : so it is with regard to the
probate of wills ; and no case can be stronger
than that which was mentioned to your lord-
rikips, where even upon a criminal accusatioo,
a charge of Ibrgery, an accusation resembling
the present, a decision of the Ecclesiastical
Court io fitrour of a will mo hahi to bo coo-

clusive evidence upon an indi(;tmeot Ibrforgery,
and that no proof could be received of the fact
of forgery in opposition to such a sentence. It
is not only so in these instances of the Rcclcai«
astical Couit ; there are others wiili regard to
captures ; the decisipns of the courts of Admi-
ralty are in like manner conclusive : so iJw
court of Exchequer, upon disputes oonccruiog
the revenue : there are many other mstancca
which might be |)ointed out to your lord-
ships, in which, alter the sentences of courle
hating competent jurisdif*4ion, all other courio
are shut out from enquiry into the matter,
howeirer it might appear that such aeotencco
are not founded in truth. This rule is so dear
and so well known, that 1 will trouble your
lordships with no particular cases or instaacM
in wbicli any siicli matter is determined : hut
there are some that have been already mea«
tinned to your lordships, and one other which I
shall add, to which I shall beg your lordabi|»ft*
attention on account of anotlier view, which it if
necessary for him, who would contend for the
full force of this sentence, to see thissubfect in.
My lords, it may b^ said, aomelhing of that
has lieen hinted already ; much we know hat
been talked out of tloors, not all I believe war*
ranted by the fact ; but of that now we are
not to judge or enquire : but it may be said, ic
anstrer to these arguments giving the utnaoak
force to such sentences, let them be final aa4
conclusive as they may, yet if a sentence can bo
shewn to be the effect of agreement and collu*
aioo, that it shall not be final, that it shall not
have a binding force. If those, who are to
argue against the effect of this sentence iu the
extept in which it is now endeavoured to he
urgeil, should be at liberty to say, that they
would attempt to shew that this sentence now
in question before your lordships was the effect
of what is called iu the common-law courts*
covin, or collusion ; if there was any ground,
as I do most iirmly believe there is not, to im«
pute this sentence to any such original; yet
before \our lordships, I trust it will appear,
that this is not the place in which any such col-
lusion ought to be enquiretl into. Those courts,
which the constitution has trusted with the in-
vestigation and decision of matters relating to
marriage, are fully equal to the decision of any
such collusion ; they may undo their sentenoaa
where they ap|>ear to be collusive : and it is not
to he presumed that auy collusive aeutencti
would be encouraged in those courts, indeed
there is one strong and cogent reason, why no
such colluMve sentences are to be feared in
those courts ; because, as 1 before observed to
vour lordkhips, a sentence there, though (son*
elusive white it stands, may at any time be atr
Lacked or im|>eached by those who lind an io*
terest in so doing: and if it may, then it would
lie idie for |M*rsons to lie collusively obLiioiog a
Bcikienre, when any relations that might be afr
tecu-d by issue of a second marriage, in aboil,
any persoo who has an iuterrat, might over*
turn and destroy it. This at leaat ia vary ojb*
f iotti upoB the ■""'foft thtt io mat urged Io

100] *

Jbr Bigamy*

A. D. 1776-

[410

yo«r kMTiMiipf, and the effect of it with refj^rd

t» the pmeot protecuUoo, that, if it was to

•top tlie preseot prosecution, the utmost cod-

M^oeoce tbat would follow from it would be

llhis, that it could only prevent sueh prosecu-

lioos^fin^ effect in caiM» in which in truth

the parties, who hail lo do in the cause in the

Bcdsiiastical Court, and who obtained the

teotence, were so ctrcuBistanced, that it would

Ml be the iulerest of any hunsan creature to en-

dsarour to undo their work : and that it is not

••e of Ua«t sort of marriages, such a second roar*

Bsi^, as At was the object of this temporal law,

theslatcile of iaones the first, to make the sub-

jsci ef punish mcHt. It was made on account

ff temporal miseliiefs happening, as recited in

the preamble. Although it is mentioned, and

Imly mcotioned in tliat statute, that such se-

sami marriages are to the dishonour of God,

and are oodoubteilly high offenrea against reli-

ptto, aiid the holy ceremony of noarriage ; yet

if tliat bad been the only evil that had been ap-

pudieoded or found from such second mar

risfcs, ii is not to be lieliered, but that the le-

fiifslure of this country would have left such

■srriages to have been considered, enquired

iais, aoid punished in ttiose courts, in which all

stbfr offerees against religion are very pro-

pifly only cogniEahle end punishable. It was

the temporal mischief that produced that law ;

iad yottr lordships may easily judge, what ap-

prrhauaiana of any temfioral mischief would

srise from such weight being given to this

asstcoee, as is contended for from prosecu-

liias being stopped by such sentences, when

il ii clear Uiat sentence cannot do mischief to

•oy' human creature, who does not chuse to sit

dswB and aoi|uiesce under it ; for the remotest

Msuc, at the greatest distance, that can be hurt,

■av eommeuee a Ruit in the spiritual court,

•ad may therefore get rid of this sentence.

Give it therefore its utmost force, let it weigh

IS much as is desired in the scale in favour of

Ibis lady, it wouUl only go to prevent a prose-

•■lioo, where the marriage undone was of such

••art, that no human creature would have an

iaiercal to support it. This I observe to your

hrdsbips, auppoaing that it may be urged

•faiast this sentence, that it will be attempted

Is be proved to be produced by agreement and

•lihision.

My lords, there are cases, one of which has
bssn already mentioned to your lordships, that
iaierms |irovc that that collusion is not the sub-
jict of temporal enquiry, that it ought to be
siatimd to the spiritual courts. There are
Mber cases, which seem to me in effect to prove
lbs same thing.

The case of Kean has already been Hieo-
liaaed la your lordships : in that ease it was an
aitouipt b¥ the iKsuo of that marriage, where
Ibsre haflbefHi a divorce betweea the parents
•f tlial issue, to establish the marriage. In
Iba divaree tlie semooee had proi«eded upon
ibe parliea not having been ol' asarriageable
•ffe, that as, the man of 14, tlie woman 9X
U; thai ihey had never cohabited together.

or consented to the marriage after they had at-
tained to marriageable years, to the years of
consent, as they are called. But who ia it at-
tempts to undo that marriage ?-— The child who
was bom of those parents, cohabiting together
long after they had attained the age ^ coasent.
And yet that issue was not heard : no, the sen-
tence was held to he conclusive; a sentence
proceeding clearly upon a ground which must
be false ; stating that the |>arties were not of
the age of consent ; staling that ttiey bad never
consented after they had attained that age;
when it was an undoubted^act, ind««d the
existence of that issue which litigated it proved,
that they must have consented to the marriage
after the age of consent.

The next case that I would suggest to yo«r
lordshipe is one that has not been mentioned,
hot which appears to me to be extremely strong
to the preseot puvpose. It is the case of
Morris and Webber,* in Moore's Reports, S95.
The case, in short, was this : two persons, one
of the name'of Berry and the other of Wilmot'
Gifford, had been married; they had bees
married some years ; they had no off*ipring; a
suit was commenced in the spiritual court Jor a
divorce ; a sentence was pronounced, which ia
the words of the book are ' propter vitium per-
* petuum et impolentiam generationis' in the
husband. The sentence havhig so proceeded,
not long afterwards both these parties married
again, and each by the second marriage had
several children : aoroe years afterwards a
cause arose, in which it became a question,
whether the issue by tbi? second marriage of
the husband thus divorced could be legitimatef
It was contended, that those subsequent chil-
dren by that husband had proved, and irrelra-
gably proved, that the foundation of the di-
vorce was false ; that there could not be that
'oitium perpetuum which was made the ground
of the divorce. The oonlmon -law court , before
whom this question came, clearly held, that
that was necessarily proved by the subsequent
children which that husband had had ; but
still clear as it was ^hat this sentence was
founded in an apparent falshood, yet it most
stand : it is the sentence of that court to which
the constitution of the country has entrusted
the dedsien of such matters ; it is not for oar
courts to enquire into it ; we should usurp a
jurisdiction which does not belong to us ; and
upon that ground it was determined, that till
that sentence of divorce was undone in the ec-
clesiastical court, it must be binding and con-
clusive, and the issue of the second marriage
must be deemed legitimate.

* 8ee vol. S, p. 849.

Voliaire has remarked, that the eecleshwlieal
jodgea derived their eonussnce of ipalriroenial
causes from tlie adoption by the Romish cbureli
of the marriage contract into the clasa of eacra-
meots. In matters of insuflieiency, he obv
serves, ** Des olercs plaidaiem ; deapr^treaja*
geaieat. Maisdeouoi jii<jeaieiit-iUr
jeia qti'ilf dcfaieat igaanr.**

41IJ

16 UEOKGE III.

Trial (i/'thc Duchcs» of Kingttoti,

[411

My lords, no cases csq well be imagiDed
strouger than these to shew, that eten sen-
tences tbundecl in ngireement, founded on what
may be called collusion of the parties, are yet
bindin^j^, till they are rescindetl in that court to
which aloue the law of En^rland has intrusted
and confined Uie consideration of such matters.

Another case, which has already been men-
tioned to your lordships, is the case of Hatfield
and Hatfield, which seems to me also to decide
this |ioiul, and to decide in terms. The case
has been already fully st»te<l to your lordships ;
I need therefore only point out one or two par-
ticulars of it. There was a dispute between the
heir of one Hatfield and a woman, who'claimed
to Ue the widow of tite father of that heir. He
insisted upon it, that she was not the wife of
Hatfield liis father, because she had been mar-
ried to one Porter. The marriage with Porter
was prored. Porter, who was a party to the
•uit in the court of equity, admitted it upon his
oath. A release was obtained by the heir from
that Porter. Jn ortler to get rid of this release,
and though the I'act of nii^rriage was prored in
the clearest terms, the woman commenced a
suit for jactitation of marriage against Portef
in the JSpiritiial Court. A sentence upon his
not ap|iearing was pronounced in that court
against him, and that was held in the House of
Lonis to be conclusive. Those who went lie>
fore your lordships, then sitlin*; iu judicature,
said, tills »as a sentence by a court which had
the alone Jurisdiction of the matter, and, while
it stood, it must decide. The books that take
notice of Ibis case expressly say, that the sen-
tence was consideretl— indeed, aher the case
stated to your lordships it could not but be so
considered, — as colUiMJie, I think is one of the
words to he found in the books ; and yet though
appearing to )>e a feigned and collusive sen-
tence, the anstf or was, that collusion is to be
judged of alone in the court where the oriirinal
matter arises, which has alone jurisdiction Ufion
the subject ; no other court can consider it.

My lordH, I am aware that it may be said in
answer to this case, that this was in a court of
equity, which had no jurisdiction to enquire
into questions concerning marriage in the Ec-
clesiastical Court. My lords, that is no an-
swer ; for wherever a sentence founded in
agreement between parties is used to the preju-
dice of a third person, in whatever court it is,
unless the subject be of such a nature that it is
exclusively confined to the particular court in
which it arises, wherever such a sentence is at-
tempted to be used against a thini person, that
third person may avail himself of the collusion
upon which it is founded : for how is it, that in
all common cases, where questions arise about
collusive sentences, that the party against
whom they are used gets rid of them? In
order to do that, no proceeding is requisite in
the court in which the sentence is : no ; the
person against whoiD it is urged says, How-
e? er that seotepce may be betweeu you two,
who areparties to it, however it may biod jdoq,
it Is fboiidcd in agiiwmwl beUraai yoa ttro^

and it is nothing to me ; as against me it u
void. Thus in the common case o^ executors,
a creditor has a right to be paid out of the ef*
fects left by a dead person, who is debtor : tbf
executor intending to cheat the creditor by an
agreement with another person, who is no real
creditor, prevails upon him to commence a suit,
and sufiers judgment to pass at Uie instance ol
such a friend ; by which he is made the ori-
ginal creditor, and the executor, as represents^
tive, debtor to the person so suing by agree'
ment. The real creditor cannot pursue any
steps to undo the judgment : no ; he says, by
way of ahswer. That jadi; ment is void against
me ; you two |)ersons agreeing and colluding
together shall not turn the forms of law to my
prejudice : and as this may be done in one case,
why not in every other, where a judgment or a
sentence founded ikpon collusion is UMd against
a third (lerson, who has no way to answer it
but by saying at once, It is void against me,
however it may stand good between \ou ?

This, my lords, is the way in which all judg-
ments by collusion or by GO%in, in my know-
ledge, are answered and got rid of. But in the
case of Haifield and Hatfield, which 1 last
alluded to, it is answered, that the Court oi
Eiptity, and the House of Lords judging as a
court of equity, had no authority to enquire al
all into a matter depending in the Ecclesiastical
Court relating to marriage, because that court
hath an exclusive jurisdiction upon the subject ;
and yet in that caKe and in this there could be
no reason, 1 submit to your lordships, why, il
an agreement of the parties could be a ground
for impeaching a judgment, it might not be ai
well done in that judicature as in this?

My lords, when I am speaking of any ar-
guments that one may suppose to be urged
from an attempt to prove collusion, there are
difi*erences between any such judgments as arc
got rid of by a third perKon, liecause preju-
dicial to him, and founded upon an agreement
between two parties to a suit with which he hai
nothing to do : is that the present case ? No
third person, that has an interest, attempts now
to set aside this judsrment : the object here is to
annul the judgment as between the parties ta
that suit. In all the cases that can lie refjprred
to, where questions arise upon judgments pass-
ing by agreement, intended to be levelled
against a third person ; in all such cases, ai
between the parties, the judgment stands good,
The object of those, who in such respects im-
peach the judgment, is merely to prevent its
having efi*ect against those who are strangen
to it: but here this judgment, this sentence
must, as between the parlies, be totally undoM
and annihilated, or else it decides the question ;
because unless it is undone, if it stands good
between those two parties till properly im-
peached in the Ecclesiastical Court, why tbeo
they are not husband and wife : and this coo*
sideration materially distinguishes such a judg-
ment so impeached as the present is, from Ibi
oommott'ease in which judgments are to be af-
fteledi am 10 as to be aveided bHwcen tin

413J

for Bigamy.

A. D. 1776.

[411

jwrtics, between whom tbey stand good, but ai
beine laid aside more properly than being
afoideil, so as not to be turned to the pre-
judice of a tliird person, who is not a |)arty to
tbem.

My lords, another distinction which I have
btfore suggested to your lordtthips, which I re-
mind your lonlships of, as upon the present
bead of the arguments I am suggesting to your
lonlships, there is this difference between all liie
cases that can be brought before your Jerdvhips
ipou the bead of collusion or agreement ; in
all tboae cases, in such as I have alluded to, and
a hundred others might he put which fall with-
in the same rule as a judgment set on foot by
so executor to defraud an honest creiHtor ; in
iucli cases the parties have no way themselves
to commence a suit to set aside this judgment ;
tbeir mode of doing it is, when the judgment
ii used against them, answering, W hatever the
judgment may be as between you two, as to
Be it is void : but there is no regular process
of law, no suit to be commenced, by which
aoy such judgment can he set aside by a third
person ; there is no suit. If it could be done
at all, it must be done in a manner which
feraisbes argument in support of the present
mtence, because it could only be done by an
application to that court in which such a judg-
■fot is given. Another court may say, where
it is attempted to be used, that if it be proved
Is bs founded in agreement by those who are
parties to it, it shall not be turned against a
tbird person ; but no other court but that in
wbich the judgment is given can set it aside
tod annul it.

31y lords, these distinctions clearly appear,
as 1 submit to your lordshi|)S, in such cases
vhere such judgments are attempted to be got
rid of by third persons as detrimental to their
iottresUi: but 1 believe I can produce to your
jordsbips a legislative instance, that a collusive
jsdirmeot in the Spiritual Court cannot be set
•iide after once given ; that it is (inal and con-
dusive. I have already mentioned it to your
lenlkhi|»8 as one of those points arising in cx>urts
•f justice, upon which all consideration is con-
|Mto the ecclesiastical courts : none is more
iaiportanl than a question concerning bastardy
w leiriiimacy . The way, your lordships know,
is which that question is sent to be trieil hy the
Ecclesiastical tJourt, is this: in actions of va-
noossiirts, vihere a person claims a title by
'loGi'nt, tlie legitimacy of his birth becomes
BMierial. If the party against whom he
daini6 says that he is a bastard, and upon that
St iiiitie i* joiiic^J, the cominon law courts irf
^iiicb the question arises seud the mattt-r to the
£oclesiaHiical Court to tie enquired of and de-
cidrd. Jn answer u» a writ for that purpose go-
ia|p from the common- law court the ecclesiaM-
I'cal judge makes a certificate, and he certifies
tbat tbe party is a bastard, or is legitimate :
tbai eertificale is conclusive; it is not only
osaclnsiTe i>eiween the parties to the suit, it is
omdiiMf e ui all the world ; it never can be
Ncbcd w noTcd again ; that certificate ooce

received, that record in the common-law courts
is final for ever.

My lords, to prevent the mischiefs tbat
might arise from such transactions happening
by agreement, and a false certificate obtained
by collusion, depriving persons of iheir legal
rights, vari«>us forms are now requisite by an
act of^ parliament, which I w'i|l state to your
lordships, that originally were not so. Va-
rious proclamations are necessary in the court
of Chancery, and likewise in the Court of
common -law, in which such question arises*
in order to give universal notice to all persons
who may hy |)ossihility be interested, that such
a question is to be sent to the Ecclesiastical
Court: but before tbat act of parliament no
such proclamations were necessary. The act
of parliament will shew your lordships what
then was the effect of a cidlusive sentence ia
the Spiritual Court npf)n the subject of bastar-
dy ; and the sentence of that court was con-
clusive, and could not be touched by any tem-
poral judicature.

My lords, the act of parliament was made
in tbe 9lh of king ilenry the 6th, chapter the
1 Xth : the title of the act is, ** proclnmstiofia.
before a writ be awarded to a bishop to certify
bastardy."

My lords, the preamble of the act before It
comes to the enacting part is very long. 1
need not read the whole of it to your lordsnipt :
it is in substance this : ** that several persons,
who are named as petitioning in the law, who
claim, some as sisters, and otbera as 'daimingf
under sisters, to be heirs of Edmund earl of
Kent, were apprehensiTC of the effect of a col-
lusive Certificate that would be obtained by
Eleanor tbe wife of James lord Audley, who
pretended herself to be the daughter of that
Edmond earl of Kent ; and the meaning of the
act was to prevent the efilect of such a collu-
sive certificate, which was apprehended would
be obtained by this Eleanor wife of James lord
Audley ; and stating tbat there was no founda-
tion for any such pretence. That she was not
the daughter of the said Bdmond, the act goes
on to say ; nevertheless the said Eleanor, the
wife of James, upon great suhtilty process
imagined, privy labour, and other means and
coloured ways, to the intent that she ought to
be certified mulier by some ordinary, in case
that bastardy should ue alleged in her person,
hath brought, as it is said, in examination be-
fore certain judges in the spiritual court,
knowing nothing of these contrivances, cer-
tain sut»orned proofs aud persons of her assent
and covin, de|fO!>ing for her, that she was be-
gotten within marnage had nnd sotenmized be-
tween the said E'Imoud and Constance, late
wife of Thomas lord l>espefiKer ; so that it is
very likely that the sameordioury would cer-
tify the said Eleanor the wife of James muiier;
which certificate so had and made ought, by
the law of England, to disherit the said
duchess, duke of York, earl of Salisbury, earl
of Westmorland, John earl of Typioff, Alice,
Joyce, and iieory, aud their issue for ever, of

415]

IG GEORGE IIL

Trial (if the Duchess ofKingstoHf

[416

the whole iDheritance aforesaid " Thus yonr
lordships see it is stated that such a certificate,
eo obtained by the most flagrant covin and col-
lusion, which is stated herie in this preamble of
the act, is said to have such eflfeot, that it ought
by the law of Enfc^and to disinherit the heirs
anil their issue for ever, thouji^h a certificate
ni«>st palpably obtained upon the p'ossest frand
awl collusion. Then' it goes on to prtroide^
■* whereupon the premispt tenderly considered,
and to eschew sucli subtle disherisons, as well
iu tlie said case as in other cases like in tinne to
cone, by the advice and assent of the Lords,
and at the request of the said Commons, it is
onlained, that if Eleanor the wife of James be
certified mulier, that no manner of certificate
ahall in anywise put to prejudice, bind, enda-
mage, or conclude any person, but him or his
heirs that was a party to the plea." Thus it
providef a remedy in that particular case.
Then it goes fm to enacts that in future all |iro-
ceeedings of this sort shall be attended with
different pniclamations that are ordered by that
act, that It may in future be known when such
certificate will be applied for to the spiritual
Marts, and that all parties interested may have
notice to make their objecttoas. Now, ray
lords, what will be said of the effect, the weight,
the authority of ecclesiastical seotenoes in this
part of the law after the act of parliament ?
boca it not appear by this law, that the certifi
cite, in other words the decision, of the Eccle*
siaslical Court iu a case of bastardy, eren
tlMugh feuiHled upon collasion, was decisive,
when oDOe it was formally received from the
ecclesiastical judge? And if it was so, will it be
at all a stretch of the authority of that judica-
tare now to say, that a sentence in a cause of
marriage, which is as pecidiarly to be confined
to their jurisdiction, ought to have the same
ferce P And if it is not to have the same force,
will it not be breuking in upon or evading that
jorisdictioo, in a way which your lordships'
predecessors have never done, if you should
DOW suffer this sentence in another place to be
impeached and overturnHl ?

My lords, your lonlvhtps will remark, that
in tiMMe cases which your loril9hi|>s have been
referred to, there is one, the case of forgery,
which is the case of Farr, that is more exactly
like the present, and where a decision of the
spiritual court upon a will is held to be decisive
against the clearest proof of forgery. But
with resfiect to the other cases, your lordships
will obserre, that they are all civil cases: and
if this deference and respect is to be paid to
sentences by the ecclesiastical judicature in
civil causes, I am sure 1 need not observe to
your lonlsliips that in criminal causes, where
the noble la«l}' at your lurtlships bar is to be
entitled to every indolg^ce, to every favour,
these decisions do from that consideration ac-
quire double force.

My lonis, it may be said, what did this act
of parliament of James the first mean ? That
when there had lieen such a sentence as this^
though tboM who wore parties to it knaw' that

they were in truth man and wife, that after
such a sentence either of the partier, ao know-
ing that tliey were man and wife, should be at
lil^rty to marry again wKhout incurring the
penalties of this statute Pin answer to that it
may be replied, that whilst this sentence stands,
if there be any weight in the arguments orged
in support of it, it is not to be presumed that it
was so, or could be so, known to the parties ;
beeanse that was to impeach the sentence.
But another answer occurs from the act itself;
for the act did not mean in all cases to punish »
second marriage, where the former husband
and wife were found to lie living; because
there ia an exception in the act, an exception-
which permits, i mean so as not to make it
punishable, permits a marriage with a secowd
nusband or wife, even though the former be
living, and be known to be living. I.iet but the
sea be placed between the hu^nd and wife
for seven years, though they know each other
to be living, the law takes not place; the? arc
not the subjects of punishment : that I take tO'
be extremely clear. The circumstance of
knowledge does not necessarily import, th^t •
person marrying a second husband or wifb
nHist be subject to the penalties of thir taw ow
account of that knowledge of the first hushtntf
or wife being living. As to the immorality of
the case, as to the effect against religioa»
against the eternal sacred obligation of mar-
riage, it reimuBs exactly the same, whettier tim
husband is on this side the chaimel or the otheiP.
But the law has said in that case, ^hontih thv
ceremony of marriage would be thus offemM*
against, though the obligation would he so fwC
violated, that a husband or wife, knowing- that
the other husband or wife were living, should
take a second ; yet that knowledge is not snf^
ficient within the act in that instance to subfetst
the party to punishment. It is not therefurc
in every case that tlie taking a second hiisbaiMl
or wife, even with knowledge ihat there is a
former subsisting, will subject a party to pii*
nishment : that the act says. It is not a |>aTf
of the present question before your lordships*
To suppose that after this sentence, the nolde
lady at your bar could be so well ncqirainted
with the ecclesiastical law, as to know that
this sentence would not be binding ; that is too
absurd to suppose. Ifa sentence in the Eccle-
siastical Court is to have that wei<j:ht, which it
has had from the earliest times ; if the same
rule is to take place in criminal courts of jiMli-
cature, and in favour of the criminal, which
has been again and again establishetl in civil
causes ; then this sentence is conclusive ; there
will be an end of the present prosecution.
And your lordshi|w will not forget what I did
before take the lii>erty to suggest to your lord-
ships, that giving the iiiinost sanction tO tliia
sentence, you uever bastardize issue, you never
disturb families, you never deprive individuahi
of their right ; because every human creatura,
who is at all interested to dispute a aentaAe>
against a marriage, who wisba to sei ap- «F
anppoft it, may at any time apply t*'tha'Bi^

Jot Bigatny.

daiwilical Coart, and there liave llie marriage
up ao)" vol c^lnbliibeJ. Nu cauie Ihere-
au e*r-r pass, in whicli a inarriatre "ill re-
aaiUmnbj iiiRh awnti^noe, except wbrre
is no human creature who Ibinkt il north
Iketr while lo eiiileMour tn support it. And
Uu* trai|KHsl law may lurely very well go ud-
mWc^iJ niiUc a <«Dlcace sianda, onil tiD ac-
eoonl fli' that u^ieace, which nilh Ihe ulrauat
■*i(;l>i "ad crrilil giieo to it can iiroJjco nu
Maiparal miacUiel'. IT il b« wron^, if the |>ar-
bn M tl ill procBfinir it did nroiiK, it mny a(
Mjr time be UDdone in llie Eccleaiailical
Cmirl ; ami ai to the ofTeiicQ a^aiusl the right
■r narriaifc. sgaiust the teligious consiitulioa
if lh« li>n-iii)m, (bat court may at aiiy lime ef-
l(ciu>k|ij' [itiniah thuee t>'hii hare been |;uilly «f
tay audi oFence, nbo have iinpr«|>erly mar-
nrd a aiHTdnd hiisliand or wife, who baie iia-
frtipetly aiiciii|iieil lo get rid of* marriage
'hit Miu leifallv ealablislied.

And ilterelure upoa the whole I aahinit to
ir lorili'hi|i'>, that upoa
- (h«Te i» no Rroon.) lo
-< «eui«ii(-e ; thai it is fi[
coursr DO other evidence oli|{bt lo be
• eil imiieachin^ thi^ marria),rt ; that the
nnenl therefiire louHt lull; and that »»
• rirace can be received, it nuiild bo idle,
p<rlilieul, and ot' n" iiae to atalu il.

A. D. 1776.

[418

ra peach oi

I>(M:tur Cahcrl. i>ly lords, il ii my duty like-
■iae to lre¥|-BS;> n iillie upon yuur lordships' p:i-
^eofe ou llie Mine side with the KeiiUciiien h ha
■are gone iielnre nir, ihuueh lbisi|iiesliuii has
icea by tliFin cnnsidiTed in the widest cxleiil
rf'viet* ibu I believe it is cajmhie ol'.

My tordti, the loolion now niailf by the noble
My B( your kirdshipa' bar is thii, that havintf
tkat species tif evidence t^liich iihe ajiiirehFnd*
i»«ancl»Hive in tier favour, and prei-luiles the
iroaecuior from guine into any evidence cm bis
part, it injy be received by yuur lordshiiit at
''■ only matter projier to take iulo coiisidera-

viilence which her grace
u the Ec^cln>ia»lical Cuuit,
prutHMiucrd in a due >iiil ibeieupon, in a direct
Lae of itiarriage ; the purport of «htcb waa,
Il tli*.'re w HI an marriage sulnistiiig belweeo
Ike bMniurableMr. 4ugiiiiiis Hei'tcy and the
} lady ul the bar, as the iadiclmeni lays
■ «•»«, at the lime «be married the late
Jake fiC Kintinion, lliut marriage hciug lite sole

I thii

; fur if timl

Uia narriaije "iili the ilitke of KiiigMi

riectly inauceiit, Ifllii* it a pruul, sncn a

e aa yuur liirdshlp^ by law ouf;bt tu aliide by,

Uni llwre wai uoiui'b marriage aub^istiiig be-

va tbi<in, Ki go iulo eiideuce uf any sort

■ival be luially nugalory.

ftly luida, II is welt known, that by ihe cna-
lU-ni"" of ihi* kingdom thiTe are different
■ <,\<^A lot the hiigalion of dilti

>plvd t

iilieo

tilutm

point originally, and determine il directly ; and
It is contcuded, Ibst while that determination
suUiEtt, it ought lu have iu eRect in all other

t laces, and in all oiIit eouns where Ibere shall
e occasion lo make u(>e of it.
My lords, ibis ia doI asierled only of one
species iif eourta, I niian Ihe EcclesiuElical
CourlR, biitit applies, 1 Hiiprehenil. tosenlcnce*
uf all olbets whatever, tliat when a Juiigment
has been giveu by any cnurt having ori^tial
and direct Jurisdiciiua, though ibal may iuci-
deiitBlly cotne before auother court, yet they
don'l go into that quealioo which has by a com-
petent Judicature beeu before determined.

My lords, il is true, it is impossible lor any
courls locoDliiiue lo enercise their JurUdicliou
tor any Gonaiderable lime vrithout many que«.
tions incidentally arisiog, which are not really
and originally within their Juribdictioo, maay
of cccteaiastical cognizance ; and for the nur-
|io«e nf determining (hat cause, if the inci-
dental |H>iut has not already had b. decision in
an Kciiieaiantical Court, they must he gone
into } becuuse if they were not, there wonid be
no eod of the interruption of justice. Blany
(jiieilions arise in the Eccleiiaalical CouiU,
which are originally of common-law jurisdic-
tion, yet tlie Ecclesiastical Court must go so
fur into that couaiderBtiun, as to see whether
Ihe pretence be true: for the purpose only of
delcrmining the cause then belure that Court,
lliey could n<il bate originally determined this
qUtiiiirnii. Eiuppoae, for inslSQCe, a legalea
claiming a legacy in an Ecclesiastical Court,
the executor mny plead a release ; novr Ihe vali-
dity or invalidity of Ibat release is originally
cni[nizshle by the commun-Iuw courts and n»
other, yet Ihe ecclesiaslioal juilge must so far
take that plea into CDiiside ration, as In sea
whether there ia sriind Jacie a release or no;
hut it was pleaded in reply, tliat ihere had been
a qiienlion upon that release at curomou law,
Ibal it bad been there pill in issue, *Dd that
there was a verdict against llinl release. 1 ap-
prebend, that no ecclesiastical judge then
wonid think himaelf at liberty to enter into
the question, whether it was a good release ot
no ; but the verdicl must be laken as true, be-
cause the Court, though incidentally it was
obliged to take notice of il, has not a jurisdic-
' in I'l delerniiiie ihe original qviestion.
My lordK, ilits may be applttd lo the quea-
in Ibat ia now before your lordshipi : inar-
riuij^e causes nrc peculiarly by ihe constilulina
given to the EccltsiHslicul Courts ; Ihey alons
can determine an original and ilirect questian
hetneen the parlies ; and if de-
termioulions of courts, having original and di -
jurisdictiun, are to rt'ceive weight, and
. will) credit from all oilier, then the deter-
of Ecclesiatiieal Courts opno mar^
riage ought, wherever they ctime in queelicin in
■ny other uuurl, likewise io be rereived aa «iin-
ctu»ive. Tbeobvioils reason ufibia sinkra me tu
be, btrcaiise ihnngh every ci'url can delcrniiiifl
in same measure a questiuu merely as a^i^lied
lo wJial is then bal'ute \\ma, '^tX Masj cwnxuA

■*y*jfe---

*19]

16 GEORGE III.

Trial f>fthe Duchess ofKingstottt

[iSH

determiDe it gpenerally, they caoDot determine
the very question as applicable to other pur-
poses. As for instance, suppose any temporal
right under a marriage is to be considered in a
common- law court, and it may be necessary
for that purpose to enquire whether there l>e
such a marriage ; the general question, whe-
ther such persons are to all intents and purposes
man and wife, whether they are bound by the
obligations of duty arising from that state, is
certainly not to lie determined bat in a court
of ecclesiastical jurisdiction : and when that
court has been m possession of the original
and general question, and has determine it,
for the common- law conrt to enter into it,
might be in effect to alter and undo a judg-
ment, as far as the consideration then is before
the court, which certainly that court has no
juris<liction to do. That this is to be received
as a general position, 1 apprehend, is support-
able upon this ground ; npon the great mcon-
S'uity of sentences whicti otherwise must arise,
ow suppose there be a sentence in a court
that has the original jurisdiction to determine
marriages between roan and wife ; to determine
upon tne state of those persons, whether they
are in fact in that relationship ; all determina-
tions upon that question in any other conrt
may be directly contradictory to that aentenoe,
which still must remain ; for the parties will
and must remain man and wife, or the con-
trary not man and wife, according as the sen-
tence was, if that question has been directly
determined in an Ecclesiastical Court ; and any
deterroinatioo that would be gi?en by another
court, may be contrary to that obligation and
that connection which the Court, having a
power, has determined was between them.
On these eonsiderationii, therefore, I appre-
hend it is, that whenever a question of matri-
mony has arisen in any common-law court, if
there has been no determination in the Eccle-
siastical Court, the question may be open ; but
if that question has ever come directly in point
before the Court, having direct jurisdiction to
determine il, 1 apprehend to this time there
always has been such credit given to the sen-
tence, that it Is taken to be conclusive and be
determined between the parties.

My lords, this distinction was made, I con-
ceive upon the best grounils so long ago as
that case alluded to by the learned gentlemen
who have gone before me: 1 mean Kenn's
case, reported by sir Edward Coke ; that was
in the reign of king James 1. In that case
there is cited the case of Corbett, which was as
early as Edward 4. Taking the doctrine laid
down u|)on these two cases together, the posi-
tion there establishinJ, and I trust adhered to
ever since, is this, that when there has been a
question of marriage liti$;^ated by the parties
tneraselves in a proper court, and the question |
has been determined upon the marriage, the
sentence will always hold good, till it is reversed
by that court. Mo much was determined in
the case of Kenn. lu the case of Corbett it
was deteminedy that where one of the [larties

Is dead, and no soch sentence was had betwee
the parties while living, a person oaioet eon
mence proceedings in the Ecclesiastical Gon
relative to that marriage. The reason is, th
then the object of such a sait most be tenlpon
considerations only ; it must be to baatardii
issue, or it must be for some purposes whic
the Ecclesiastical Court has not original jmi
diction of. But the mere question of Doarriagi
of connection between man and wife, caa nevi
come into question, nor ought it to be litigali
after tlie death of the parties : therefore, tl
Ecclesiastical Court, aner the death of tb
parties, does not entertain that suit, nor can
oe legally commenced.

My lords, there are a variety of cases wbid
have been determined that have been quoli
already to your lordships, and which I shod
be very sorry to take up your time in repeat
ing ; but it seems to me on those autboritiei t
have been established, that as often as tba
sentences have been pleaded they have bee
allowed, whether they were sentences in cansc
of nullity of marriage, or in jactitation of mil
riage.

My lords, if danger is to be apprebenda
from too much credit being given to sad
sentences, lest fur improper purposes the;
might be unduly obtained, there seems to b
less danger in questions that arise upon mar
riage than in any other ; for this reason, tba
there can be no determination against a mar
riage but what is open to future litigation. W(
all know, that in a question of marriage asi
person that has an interest may intervene be
fore sentence given ; and any person hsvisf
an interest, though they have neglected to intv
veoe in that canse, might appeal within thi
proper time : nay, I will go so far as to sav
that if any person having an interest show
have so far neglected it us to omit avaiKaj
himself of an intervention or apfieal, yet b
might still come before the court, shew his ia
terest, and be beard. A marriage cause goe
farther still ; for I believe in most other cases i
determination would be for ever binding, a
least to the parties ; but in these questions, !
conceive it is not : for if there w as to be ;
question between a husband and wife in a cans
of jactitation, and, as in this cause, it was ds
termined that there was no marriage; yet th
party against whom that sentence was obtais
ed, 1 apprehend, might ap|>ear at^erwards, h
might produce any new proof that he did M
know of at that time, or, e\en if he had v
produced what proof he had, he might fc
beard upon it. The reason of that indulgeM
I take to be this : by the canon -law a marrta|
was held to be indissoluble, and for that reasc
a sentence against it never could be final

* senteutiu contra niatrinioninm nunquam trai

* sibit in rem judicatam.' The canon-law,
is well known, has been received in this counli
with respect to marriage, particularly as totb
position of its being indissoluble. In no
otb^ questions, as of property, a person migl
be bound by time» booud by oot OMkiiig i

>r Bigamy. ■

be sboald bare duor ; but u
a fmwm» naoM retenie biuuelf truin thn obli-
|Miaa« of inarTiaf^ by ts; li[ise of line, or
aqr wglgcl id ■Uliny' his case, ibe qiicslion is
mmopmn tfanafurelbeie ca^es »re cerlainiy
llw MM daugergiM, because if any body ap-
fan wh» appnrbends biiascll* iDJured in this
HMer, and baa an iatert«t to shew tbat this

I apiirebeail it la conclURive. Tbe

■Mcae« now before yuur lordtbipa is a »en-

Mm in a cause of jacIitatioD. It has been

Mfpo*ad upnn ibe auihnriiiei, many iif wbinh

We becu cited to ynar lurilsliipa tu-day, Ibat

•(md a Beaieace determinititf upon ibis point

tii bten olferctl ia any coun coning' in iiici-

brtallv, it has been coDalaaily received : but,

■9 ktnls, ii bas been recdreil witb Ibis realric-

!■■, •■ it is laid ibiwn expressly in Blacltbam's

■M, trkicb bas been already quoieil, it muu ba

wtere tbe tnaniage bas been directly in issue;

far if il be an incidcolal ptiint unJy, it would

Ht tbeit be talialaciory. In Biackhani's case,

wher* tbe question aroiie upnn tbe tfrant iif an

^■atBMtralicm, il was ai^oed, Ibat the Eccle-

liajtiml Ctiurt hating dalermiaed upon that

^■iiri*1" *'"". lliey had virtually deiennineil

1^ mairia^e, sod iberelbre it was liiiiding

mfom all (laniea : but it was aaiil, Nu, the quea-

Xjua Muat be orit;iaelJy aiid dirnclly upon the

iBarrtase, nr it shall not have effect ; and Ute

•litUDcaiaa aeeias to be exceedingly eood.

VIj larda. in ordet to brinf; tbe prcaenl case

-.-i^rure wiiliin tliis pfmoiple, it ia necessary

'ltd*, that the seotence now nnder ynur

n>«i>i|M>' coiiiideratioa is a direct delerioinalian

■fKHi a Diactiaire ; because if it be not, it would

to liable to tbe olgeciion wbicli I have noiv

ttMd.

ISy lorit, the proceedinif is that of a canse
tf jaditaiioB, nhicb is be^un by a man or h-q-

)lpaa tbe pertan nbn daims tu be the husband,
fm taaatng biiaalrd and asserted iliat lady to be
Ma atil'e, to abstain from aucb assertions tor the
hwr*.

My iMfda, be re tbe question orit;i>>3ily seema
M h*, srhetber ibe persoa called upon had ever
Mallj claimed ibe lady. In tliat ststre uf tbe
^MMe. if ibe efaiia had uni gone as far as a
on, some of the liovka asuioiilale Ibis
i; til a cause of delaiaaiion, supposing
Waa be a caae vl' a-urits only ; and wlien upon
a snamage bein^ pleaded to jusiifv the daim,
ih* tyteinOB turns upon Ibat marriage, it may
|e>h«^ ha arijued, tbat il ia not a direct case -k
■asMa^F, bnt Bu inridental one only : il aay
■■a ibervtbre be impniper to consider it in this
«■■, leat (uch an observation shnulil ba made.
I uk« it, thai when in a cause of jactitation
ihc defendant gives in a ph>a statioif a mar-
iiai^s aail that marriaiie is c«iiirailicie<l by tlte
fhiMdtff, though II 18 intended indeed us a da-
Haoa 10 Ibe aceuulian («r wbicb be
■faa U> aiwwer, that of havings claiineil tha
mtf^ jNa the qaeatiBB ifaM alun in

» -"« -A. D. 1776. [42B

Ibe plea is not only intended to entitle the de-
fendunl to bia admission, bat the court is then
in posaeaaioD of tbe question, whether there
was a marriaga betweeo llie parties, and the
delerminatiun is direct upon a marriiuce. If
tlie marriage he proved, tliere is Ibe saaie !>en-
lence paaaed aa in a matriiuonial cause ; tberi:
is a seutence directly pmnoundni; tbere wns a
marriage, the parlies are prooounceil to be
man apd wite, and they Diijchi he admonisbeil
to restore in each other (.-anjujfal rights. If, oa
tlie contrary, the defeodaot should fail in proof,
the determmalioH is tbia. tbat tbe naily has
failed in his justiBcalory matter ; and tba sen*
fence in this case Koea, tbat the Judge baa
found tbat be baa tailed in the proof of the
roarria)(e alleged to have been bad between
Ibem, he i* declared to lie free from all malri-
mouial contract*, and injoined not to bnnsl Ik
future ; it would be tberelore a lallacy to argue,
Ibat tliia is not a direct dcier mi nation of tbe
questiou of marriage: it is indeed ineralted
upon ihe original cense of jactitation, but that
is ai;reeable and coniouant In practice io other

My lords, it is not a moDSlroas thinK to as-
sert that a cauw may change its iialare frota
its urigiual institution.

(On mutiun of a Lord, part of tbeSenleuce

Dr. Calvrrt, Unacquainted as I am with
the proceedings of Jus high and august court,
which I uever bad tbe honour to appear iu be-
fore, I conceive it is my duly to take immHiiaia
notice of iboae words which haie been read, aa
I lupptMp ibay were called for, because I oii|[lit
Iu coutine my obiervniioDs In Ibem before I go
any liirlher. The lady, who ia ihe object of
that enquiry, is pronounced la be a spinster aa
fares yel appears.

My lord^, ibese words ari
arnience, and I apprehend a
lence of Uiis nature; the purport of which, I
trust, means thts, thai tbe case is o|ien to fu-
ture disqaisninn u|ioo tbe principles that hava
been already staled; thai ihuugh ihe judge de-
termines opou tlie evidence that is then before
I hiin, yel tbe parties havimc an interest to bring
: that question ou again, maj' he heard. As far
' as vet appears ta us, saya the judge, the lady
■9 Iree from all raaiHinoniBl contracts; and aa
I loogasiliat senieiicereniaina, 1 mean to argae
I Ibat il is a conclusive (sentence. 1 don't mean
) llial the Cuart is precluded from anolbev eo-
' quiry ; I hace stated, that no parties are pre-
I Huded from anniher enquiry ; and I conceive
■he meaning of those words aivto ex|ireaa, that
I aircording to the light whirh then appears to
I the Court, the Court pronounces (be aentence.
But a aentencr of that sort is ool from ihenca
ID be iiyueil la be nugatory, and thai ttie Court
I deternixursniilhint;: Ihe Court drierminpB upAn
' what It has heuni; and as loacaHibatseutenca

4S3]

16 GEORGE III.

began ori^Dally upon the one party callingf on
the other to jiutily his claim as husband in a
cause of jactitation, it is nothing monstrous to
8up|)0te it has so far changed its nature as to
become a marriage cause ; and I will mention
other cases in which the ecclesiastical courts, as
.is well known to the practitioners in those cdurts,
adopt and admit of a similar practice. Sup-
pose, for instance, a man was to bring a suit
aipainst his wife for the restitution of conjugal
rights ; in bar of that restitution, the woman
may plead adultery or cruelty in the hubhand,
which in certainly a reason against admonish-
ing her to return home to her husband. But,
my lords, this is not all that the Court would do
in such a case ; for she baring pleaded adul-
tery, that plea liecomes in fact a libel in the
cause, and it will become a cause of adultery;
and I have known within my memory, and
since my attendance at the bar, instances of
that sort. In a case of Mathews and Mathews,
determined in 1770, in the Consistory of Lon-
don, the wife pleailed adultery in bar to resti-
totion; the cause went on in that suit, and
there was a sentence of dirorce: would any
body contend, that it was not as direct a
sentence of dirorce, as if it had been so ori-
ginally instituted ? and in case either of those
parties had married again during that divorce,
and an indictment had been preferred for poly-
gamy, can it be contended that this sentence of
divorce would not be a defence under the pro-
viso in the body of the act?

^ly lords, another instance : suppose a man
brings a suit for separation by reason of adul-
tery against his wife ; the wife may recrimi-
nate, and may give in an allegation pleading
aduherv in the husband. The prayer indeed
on each siile would be for a separation ; but
there is a very considerable difference between
a sentence for separation formed upon a crime
being in the man or in the woman, whether it
is at the suit of one or the other : but if the
party that is defendant in the original suit
should go on and prove that adultery, and the
plaiutitf should not, the defendant would lie en-
titled nut only to a dismission from the suit the
plaintiff originally hroui^ht, hut to a separation
upon account of the adultery pleaded by the
defendant.

I mention these cases to shew, that it is not
enormous to suppose, that ihough the original
question might begin in a cause of jactitation,
yet the marriage ueing pleailed, the sentence

Trial of the Duchess ofKingston^ [494

this judgment, and pronounced for the mar*
riage; pronounced not only that Mrs. Hervey
was justified in her jactitation, but pronuuooed
expressly and direciiy tor the marriage ; and 1
believe nolioily will doulit. but tha> marriagf
was ss oonclosiTely determined between Uienn
as if it bad been originally a marriage causey
or a suit of nullity of marriage. That theac
sentences have been held to l»e conclusive in
the courts of common law where they have
been offered, those many instances that have
been mentioned seem to me to put it oat of alJ
doubt.

It will not be improper to consider what efled
a sentence of this sort would have in the Ec-
clesiastical Court; and I shall contend, thai
while a sentence of this sort is existing, a wifis
could not be beard to have any claim upon bev
husband ; she could not claim the restitutien of
conjugal rights ; there is no light in which sIm
would be understood to be the wife until the
marriage be again brought into question. There
is a case in print that seems to roe to go ex^
actly to the point 1 am now contending for; ii
is in the case of Clews and Bathurst, which
has been mentioned already to your lordsbipi,
as reported in Strange, 9ti8. But, my lords,
that case is reported likewise in another book,
a book lately publiahed, which I am told is
good authority, and the cases well and correctly
tsken ; ii is called. Cases in the time of Lord
Hardwicke, and it is to be found in page 11.
There the case is stated a little more at large ;
and a case is said to be quoted by Dr. Lee, of
Melliaent and Mellisent in the year 1718. lo
that case a woman had claimed to be the wife
of a Mr. Mellisent. Mellisent libelled her in
the Ecclesiastical Court in a jactitation of mar-
risge. She pleaded a marriage, but failed in
the proof ; and there was a M-ntence, 1 appre-
hend, <»f the same sort as in this cause. Ahex
the di-ath of her hnshaiid the woman would
have maile out her right to the administration,
and for that purpose she pleaded her marriage;
that must have originally began in the inferior
C4>urt, and from the nature of the suit, I anp-
|»08e, came from the Prerogative; but, how-
ever, the detcrmitiution I am alluding to was
in the court of Delegates: it was determined,
as there remained in force a seiUeuce which
was a bar to her, she could not be heani to
make out her case as a widow to the deceasied.
Your lorilshipR very well know, that though the
Prerofifative is an ecclesiastical court, yet the

either one way or the other in and must he as ', juristiiclioii of that court isf confined merely to
deUrminate as if the qucKtion had originally I probates and administrations, and it does not
been upon marriatre. TlK*re is a case that was : enteriain causes of marriage. Mrs. Mellis^'nt
litigatel in the Krdesiaiiiirat Court not lonj? i there cluiiuing as the widow of the deceased in
ago, and which n* ilie time was much talked ■ that court where the sentence of the marriage
of, and is wifll ki.owii ; i mean the case of Mr. j could not be set aside, it was held, there
Thomai* iJcrvey. x\holM>ught a snitof jacti- | being a sentence in a cause of jactitation, in
tation of marriage in the Consistory Court ofj which the marriage was pronounceil against,
LoDd<m against Mrs- Hervev. In that court | sh^ could not claim as widow. In that case
a mai riage was pleadeil ; the sentence was { the Prerogative Court held the same, as we
sgaiost that marriage ; the same waa affirmed • are contending your lordships will upon this
in the court of Arclies ; but when it was ap- ■ octagon.
pnM Is the oonrt of DekgttflSytbsy reverted Then wii another eaae io the Prarogttiv»

Jor Bigamy.
n th« jnr 1771, My Maja ngsinit
The qticitiiiu nnwc! iipnii an admi-
n la GerltuJe Brown, who ilieJ inles-
lilminiirntiuu liail bvi^n i^ahnl to Sle-
Dwo BS lipr tiukbanit, h» liivin([ marrieii
li« yenr ITW, Alinwanls ihnt aditij-
a •>8 culli'il in by laiJy Mayo, a
r by B Inrmcr liualmnil ; sail slie con-
I tliat Brown hail no li^lit lo Ihal hiK
[■much ai at Ihe time he mar-
ie lie wan alieaily llie huibaml iif
• Eleanor CiilK. Id anaiter lo Ihal it wbj
l<lcide<l, Lliut there hiid been a sutI nl jaolila-
: 1 ol' marriage bri'Ughl hy Drown agaiust
< iiiU, ill which (he iiiarria)[e was pronunnced
..linit, Bixl h« wa» iironouticed lo be free Icom
ill nuiriinoDial conlr.icls Willi Eteanur. In
Diwei ii> tbal, ■outlier |ilea wus civen, staling'
did It wai a collusive suit ; Ihat Ihey codIiI
ilirw fraud and eirilusiun. The admiMion of
- -'I Lj- :iiim came un lo he dehateil bel'nre
' r die I'rrroealive ; anil thua lar the
ihi^reheini;asenteiii'e now in ano-
,:|ii« was ill the Prero^uiine that hail
--:,..:., I. ;l;iiimi »f (iiBrrla(;e, tliere tieioga Con-
nilnry ul Lanitnn) hy wliicli it la iironouiK^
ta thi* person was free frnm matrimonial
Wt, ibis court euunol admit this allega-
I all iiroceediogB io ihal court were
that it, that alle^iBtina was not od-
ill the parly, il' she tlionght proper,
O ta the pinper court to reverse il.
baa been done in that cauie since ;
e in all prnbaliilily Def«r will: I
(fprebcnd Iherclineihattliiisenleni^, which ii
MV aadtT yoar lordships' coiiaideratinn, mnst,
M iMip u il rcniaiai in Ibrcp, he held la le
nachuire, for this reason ; because though it
an ba ennuir«d inia, yei it ii not now even in
t«aj of utif^atioii ; nulliiu^ has been done to
Wfnd It, nor are there any steps lowarda it,
m k remaiD* in ila full force.

Hy lords, the learned gentlemen who bare

PM before me haie ihoui;lii proper, in order

Mabviiietuy ohjecliiinii thai may arise, to cna-

lidw what would be the case, tuppoBiug il

•liwld be urged by ihe counBcl on tile oilier

iiit, that the pniteciilor would uoderUhe to

*mw ibai till! was a fraudulent aeiiUnce, and

lAwinrd hy colluiinD. My lordii, ihe reason

*f*ur menltooiDi; that is. unl on supposition

* Wliff Ihat there would cinie out any such

nclKn 1(1 the prvaent eauHe, bui that, takin|f

tip ■• wa dii as a prerinat qnestiiio, it is our

a (be mon diaadtan-

■ view, and lo maintain, Ihat in nn ease

I th*y CMi sup|io<ie uu({hl evidence la be

i>td BKBintt the srnleoce; and upon Ihat

■ I apprrbend that c*ery argument which

"S adiluavd to shew that the consideralinn

bor tiM want of Iralhin such a srntepce

Iwwiilu b« ^aoe inln hy this court, DtHy

i aqoal piopnety be ippliad against icuinir

a the quention of collusion, l^fauie thai

ml wbieh goie the lenlence is open In Ihat

lu-ry, and, I apprrhend, alone proper and

How vigoa ud

A. D. 1776.

[420

nnsalisractory mnst be the eDquiry of different
eourb priiCEcdini; tipon dilTerent matier, difiis
rem principle!, even ihp it-rma mode use of
qiiile iIilTiTeol ! Should Ihry enquire into the
queslinn. whether the proceedings were fair or
not, it may be produmve of error. Suppose tt
shoidd be shewn in some particular that Ihtre
was evidence supplied, how would il appear
Ihe Judgment did depend ujinn that ground ?
Then enicrioe into the prool of colluaoii would
be as itriHi^lv excepiiminble as their enijuirin(f
into the rifthi or propriety of the senlence,
whether it whs duly and rijjblfully proDOuneni
hy the jud)[e, winch is an exercise of jurisdic-
tion Hliieh no itidependeni court baa over the
BeotenceM or judgments of anolher. Your lord-
aliips are well aciiusinted, that there is no ap-
pellile jurisdinion in a criminal court over an
ecclesiaslicti court ; lite question can nidy be,
whether thul leuluace shall be rei-eivrd as final
aud conclusive: but ihe meUiod in nhieb it
was oIilBined, whether it was righily and duly
prououuceil, are very good questions fnracoiirt
ofappeal, which can reverse that lenience ; but
an enquiry into the method of oblainintc it is
improper, as long as the sentence remains. If
then a tieuteuce of this sorl will be held to be
canclusive and satisfaclnry in all civil ques-
tions, and I coDceire the aulhori lies which have
been quoted will be suHicieut lo establish that
principle, surely it will much more slronttty
anply 10 all criminal Ciisee ; because your lord-
■hipB wi)1 see tt to be the strangest proposition
lo maintain, that when a man or woman are
not to be considered as husband and wife lo ai^
civil purpose, yet they shall be so only for Ihe
purpose of punislimcnl : (bis surely would be
the greaUst absurdity. Yet supposing the
aentence nol repealed, which imporli Ihe man
and wumao are not husband and wife ; and
suppose thirt be (he general sentence that
{fuglit 10 apply to Ihem in everj situation what-
ever, though Ihe criminal Jurisdiction should go
on to pass ceusure upon ihe person accused
(for that is all the criminal jurisdiction can <io)
Ihal will not deilroy (he senleoce in ihe Eccle-
siastical Court, sod they will remain not hua-
bandand wife, though the criminal court should
puniih one of them for whal is supposed a
second marriage.

My birds, I suppose it will not be contended,
that a determination before a rriminal judica-
lure ounbl to have ihe effecl of a delermina-
lion directly upon ihe marriage : I apprehend,
that in point of law It cunnol be supposed it
should be so argued. Your lonlships ndl see
Ihe injuKtice ofsuib a ptuceediog iheii wmild
be prodigious, because ihrn a ciimioal juiis-
dic(ion must drti'rmine tipon the rights of
many persons who have not a lions ibi'ily iif
beini^ heurd. Keep iheir quesliou in (he nvil
court, adhere in the deii^tioMialiun o* thai court
Ihat haa an original jurisdiction, there all par*
lies might have bi-en heard, and ihiy msy in
future, if ihey can set up any interr,,! ; hut a
deiermiualiOD in a criminal court Ihut mii£ht
apply in lUe moat rvmoie d«gree lo deiermiu*

4S7J

16 GEORGE lU.

TruU of the Duckets of Kingston,

L4SI

cif U cauMS, would be the most manifeft ii\|u8-
tioe, because no peraona could be heard for
their interest.

The question for your lordships' determina-
tioD, if it should be erer gone into, will be
upon tlie marriafi;e said to oe bad with Mr.
Henrey. Any determination here that may
affect that rigfbt, may affect not only the per-
sons that were immediately the parties to that
suit ; but your lordships see many connections
arise upon marriage, many relationships and
new claims that may be predudeil by such a
sentence as this. Suppose the duke of Kinr-
ston had had children by his marriage, it would
be as much their interest to establisb this sen-
tence, as it would be of interest of any other to
impeach It; and that such rights as these
should be determined in a criminal jurisdiction
where the parties cannot be heard, I appre-
hend, is a position that never was yet main-
tained.

Upon these principles, I hope your lordships
will be of opinion, that the rule ought to be ap-
plied as well to questions that can arise in cri-
minal jurisdiotious as in ci?il ones. That cri-
minal courts have determined upon these prin*
ciples, there are cases which have been alluded
to, and which are, I apprehend, extremely per-
tinent. One is the case of the King against
Vincent, *Strange 481, mentioned to be an in*
dictment for furgeir in having forged a will.
The reporter says, forgery was proved, but the
defendant produced a probate uader the seal of
the ordinary : and it was held, that that was
satisfactory proof of the validity of the will.
That is a very strong case; but that there is no
right to determine upon civil matters in such a
way as this, or even to prejudice civil matters,
is very clear in that report.

My lords, tliere is another case re|>orted by
the same author, sir John Straqge 70S, the king
against Rhodes, that came before the Kiog's-
bench, when sir Robert Raymond was the
chief justice. That was upon an indictment
likewise upon a fors^ery for having forged a
will. That will had been proved in the Eccle-
siastical Courts. My lonis, it appears by this
report, that it was not only a probate in the
common form, it was when there had been a
long litigation in the Ecclesiastical Courts, and
when by a decree of the court of Delegates
the will was pronounced for. Upon ap|9ica-
tion to the KingVbench tor a Habeas Corpus
ad testificandum^ the Court there decreed not
to issue the writ for this reason, because it ap*
peared that there was then existing a direct
sentence for the will ; and that sentence if it
had been pleaded in bar to going into the ques*
tion of forgery, I apprehend, would have been
allowed to be conclusive evidence; for the
Court said, it was not fitting to determine the
property on an indictment, it likewise appear -
ed, that though there had been a sentence of the
oonrt of Delegates pronouncing for the will,
that yet there had been an ap|ilication for a
commission of review ; so that it was within
the knowledie of th« Court that the cause wis

in a means of having a revision. But it wai
understood that the sentence still remsined per
feclly in force ; for your lordships know per-
fectty well tbe difference between an appea
and an application for a commission of review
in case of an appeal, tbe sentence is suspended
but not so on an application for a commiasioi
of review. By the statute of Henry 8, it a
provided, that the sentence of the Uelcgate
shall be 6nal, and no appeal shall be had fion
them ; but it is now indisputable law that tki
king may by bis royal prerogative, upon i
personal application, and a special case laid
direct a commission for reviewing the sen-
tence : but there is no appeal ; the sentcno
remains the same, unless the reviewers in tbeii
judgment shall think proper to reverse it. Jt
this case it appears, that there was then existinfl
a full and direct sentence upon the validity i
that will. It was understood then that tUi
right had been pleaded by the defendant, am
the chief justice slopped the proceeding, an^
did not even grant tliat motion which wasthei
sent. These two cases, I am told, have beei
recognized again in that court in a very lati
case of a man who was executed for a forgery
one Perry ; and 1 am told the judge at tMi
trial offereil to the prisoner to put off his triaJ.
if he had a mind to make use of that plea : bni
I am told, it was not accepted by the prisoner,
and the trial went on. But tliis I am sure, m
use csn be made of that case to shew, that iIm
former determinations were at all impeacbec
by it } because at least, if the probate was no
insisted on by the defendant, consequently nm
over*ruled by the Court, these cases then re<
main in tbeir full force. And I will ask, ii
what manner they may be as id not to be appli-
cable to the prioci|>le we are contending for.
that in a criminal court, cases of this sort ought
not to be gone into ? Will it be said, that thii
being a prosecution under a special act of par-
liament, the crime consists in having married
two persons, tliatthe marriage must necessarily
come under the consideration of that court
which is to determine P and they cannot by th<
act of parliament itself acquire an original ju«
risdiction to enquire into the right of marriage.
Does not it apply exactly as strong to the case
I have now alluded to of forging a will ; for il
is by express act of parliament made a felonji
of death to forge a wdl ; and it may as well m
argued from hence, that every criminal court
has by that act acquired an orififinal jurisdic-
tion as to wills. It cannot be argued a mo-
ment, that a criminal court has oriifioal juris-
diction of marriage. I do not say, when it bai
not been determined before, but that tbe Court
must necessarily enquire into the lact ; but thai
it caoQOt oriifinally entertain such a question.
Now there cannot be a case stated wherein i
question was between the parties upon the vn-
lidity of their marriage and upon their atate ol
man and wife, to shew that it can be deter-
mined by a criminal court. If it cannot, J
conceive clearly, it cannot be said to bnfc
original jurisdiction upon tbe pointy the &9mA

189]

fjf Bigaimy.

A. D. 1776.

[:4»

nd coHiMkNi : which, fbr the reMon that hM
Wen pveoy it was thought proper to mention,
iMt it ehoold he made use of opoii the other
■de. It will he said perhaps, that there are
Maaj instanees where parties trying to a? ail
themselves of a judgrment, or the sentence of
aasther ooort, of the ad? erse parties heing al*
iMVfd to shew that those sentences were ob»
tiinid eoUosiTely: this distinction I ooncei?e
has been made. If any court ever is permitted
W cnqnire into the ^ oestion, it most he a court
having concurrent jurisdiction ; snd then your
hrdshipa will see the question upon rery dif-
Iral grounds ; because a court having con-
csnent jurisdiction has also the opportunities,
iH the methods of enquiring into trie original
fMSlion. They being competent to determine
Ike original point, it makes no considerable
Mbence whether it comes before them at
int, or wliether it has before been determined
ly another court. It will not be contended, I
cmceire, that a criminal court has any con-
carrent jurisdiction with the Ecclesiastical
Csntt. It clearly cannot be so ; it can never
eslertain the abstract question between parties,
whether they are man and wife or no. The

away it can be taken up is iocidentally ;
if tlie authorities are good to shew, that
wbere an inddeotal question arises, if it has
hmi determined by a court having original jn-
riiiiction, it ought to he conclusive, that will

£y to the case now before the Court. For
e reascns, and for those that have been
■ore weightily argued by the gentlemen who
hive gone before me, 1 hope your lordshi|Hi
will not think proper to recede from the esta-
HUied and legal principles, or make a pre-
cident on this occasion. But if whatever has
Irb, was upon the strengfth of former deter*
ninatioos ; and if there is good ground in law
ti My that this sentence ooght to be conclu-
m to the point to m hich it is now offered ; I
tnin your lordships will be of opinion that the
paiecotion ought not to be permitted to go into
aiy e? idence.

Dr. Wynnt. Notwithstanding there has been
wnmcb and so ably said upon this question, I
bope that the duty 1 owe to the noble person at
y^r lordships* bar, will plead my excuse for
<)Aering a few words upon the same side, in
wpiMit of the sentence of the Ecclesiastical
Cooit, of the effect with a view to which it is
Mw produced before your lordships.

My lords, the ductless of Kingston is now
■poa her trial, upon an indictment found
igiiost her grounded on stat. 1 Ja. cap. 11, for
^ being the wife of Augustus John Hervey,
die married the duke of Kingfston, the said Au-
fTwtns John Hervey, her former husband, be-
^ then alive. The foundation of this whole
proceeding therefore is a marrisge alleged in
(he indictment to hare been hail between the
Cachets of Kingston, at that time Mrs. Eliza-
^h Chndleigh, and Mr. Augustus Hervey.

That marriage, my lords, is the only fact
te eao make any criminality in the present

eaie ; asd if it shall appear to your lordshipe a
fhet, which has been already enquired into and
decided vpon : that it haa been put in issue in
that court which alone could pcoperly tak«
cognizance of it; that that court haa pro-
nounced its sentence against the marriage theft
put in Issue, or any matrimonial contract be-
tween Mr. Hervey and Mrs. Cbudleigh, who
were the parties to that suit ; and that Uiis sen-
tence still remaiDS in force; it is submitted to
your kMilsbi|Mi to he impossible that thoip who
are prosecuting this indictment against her
grace, can he allowed to go into an examination

of witnesses upon that marriage ; it being •
Act now' decided by the leffal sentence of •
proper court, and consequentTv not the subject
of that kind of evidence which the prosecutors
are, we presume, endeavouring to ofler to your
lordships upon it, as if it had been a qoestioQ
upon which no sentence had ever been given.

My lords, the sentence, upon which we rely,
wss passed in the month of February 1769»
and It recites all the proceedings had in that
cause prior to the sentence, and which are
sufficient, as we apprehend, to found that eflhet
which we contend it ought to have before yonr
lordships. The sentence recites, that a suit
had been brought by the duchess of Kingston
sgainst Mr. Hervey for boasting that he wai
h«r husband; that Mr. Hervey appeared in
that cause ; that he admitted and justified tho
jactitation ; and alleged, that he waa well
warranted in making such jactitation, for that
he was actually married to the lady : bj that
means they were at issue upon the fsct Tho
sentence goes on to sayi that he had entirdy
failed in the proof of the marriage which ho
had pleaded and propounded ; in consequence
of which the Court pronounce^ Mrs.*Cbudleigh
to be entirely free from all matrimonial con*
tract, and particularly with the said Mr. Her-
vey, * so far as to us as yet appears ;' and upon
that goes on to admonish him to cease fimn
farther jactitating in that behalf. The cues*
tion now for your lordships' consideration there-
fore is, what is the effect of that sentence? And
I contend that in the way in which this cause
was proceeded in, it is as decisive, as absolute a
sentence against the marriage, as the Eccle-
siastical Court has power to give.

If the party who is accused in such a suit
does not justify the jactitation by pleading a
marriage, it is otherwise; for in that case,
whether the fact of jactitation is admitted or
denied, tbe sentence is only upon tlie jactita-
tion, not upon the marriage, if the jactitation
is admitted, and is not justified, the party is
admonished to do so no more ; if the jactita-
tion is denied, the only question before the
Courtis, did the party jactitate or not? and if
tbe jactitation is proved, the sentence is the
same, viz. a monition to cease from doing so
for the future. But if the party cited con-
fesses the jactitation, and justifies it by plead-
ing that he or she was and is sctuaify and
lawfully married tu tbe other party who has
bronglit the suit, it is no louder a cause of jao-

431]

16 GEORGE III.

Trial of the Duchess ofKingstotif

[43

titaiion, it is as much and as directly ft mar-
riage cause as a cause of nullity of marriage,
or a cause for resriiution of cotijugal ri)i;liti.
Ik is as absolute and de«-istve pritof of (his, in
my humble apprehen^i<m, that if tht* pnrfy
cited in a cause of jactitation pleads and proves
a marriage, the court dues not in that case dis-
miss, and say, The party it is true jactitated,
and had a ground fur jaVtitating, therefore we
dismifefs : no, the conrt pronounces for the mar-
riage. And I take it to he must clear, thai
aoch a sentence having been pronounced in any
ecclesiastical court, if the party cited should
immediately pray refctitulion of conjugal rights,
the court wdl grant its munition grounded upon
tliat sentence, that the parties who were prored
to have been lawfully married, should cohabit
and perform the duties of their marriage. It
will not 1 presume be contended, that any court
can deal so very unequal a measure of justice
between parties, as to say, If a marriage is
proved, we will pronounce for it ; and yet in a
cause of exactly the same nature, if a party
pleadft a marriage, and fails in the proof of it,
we will not pronounce against it. The suppo*
aitioo is absurd and shocking to common sense ;
and it is impossible that such a cause as a cause
of jactitation could ever have been in use, if
the party who brought it might lose his cause,
and be engaged in a marriage he was desirous
to avoid, but could never oblain any sentence
against the party jactitating, that would have
anv legal effect. It is impossible, with great
deference to your lordships, that such doctrine
should ever have obtained ; but the truth is di-
rectly the reverse, and in all courts where these
■entencea against a marriage in a cause of jac-
titation have been produced, they have been al-
lowed to be as deciHive as any sentence in an
ecclesiastical court in a marriage cause could
be. Jn the case of Jones and Bow, reported
in Carthew, it is expressly said, that it was a
aause of jactitation. Jn the case of Clews and
Bathurst, which has been mentioned to your
lordships, it was a cause of jactitation ; and I
rather rely upon that case, because it appears
by the report uf it in the book iniilled CsMes
in lord Hardwicke's time, p. It, Hil. 7 Cieo.
3, tiiat it was attended by as able a civiliiin as
any of his time, Dr. Lee, atlterwards dean of
the Arches: he argued in that cause, that a
sentence against a marriage in a cause of jac-
titation is an absolute and decisive sentence.
And it appears from the report, that lie quoted
another case, which was that of Melliseirt and
Mellisent; in which it had been so held in the
Court of Delegates, which your lordsliips know
is a court of appeal in ecclesiastical causes, in
which there are both judges of the common
law and civilians. The case which was last
alluded to, and which was in the Prerogative
Court, your lordships vVrU allow me to state
a little more fully, because it' will shew
the opinion of the great judge who now pre-
Btdes in that coort. It was upon the right of
adminiftratioo to one Mrs. Gertrude Brown.
The questioD was between Stephen Brown, who

alleged himself to be the b^isbandy and th
lady viscountess Ma\o, the daughteroi'ibe d(
ceased by a former husbaiid. The roarriag
betHeen Brown and Mis. A^lemore, winch ws
the deceased's former name, wai not denied
but lady Mayo insisted, that at the tim^* ol ih
marriage with Mrs. Aylemore, Mr. Brown ha
another wilie at that time living, whose nam
was Eleanor Cutis. Mr. Brown to that re
plied, that he had brought a cause of jactitatio;
m the oonsistory court of London against Mn
Eleanor Cutts, and that sentence bad been pre
nounced exactly as in the present cane, nm
that he was free of all matrimonial contract
with said Elizabeth Cutts. Lady Mayo tbei
offered an allegation, in which she pleaded
that the sentence in such catise of jaotitatioi
bad been obtained by collusion ; and annexo
to that allegation she exhibited many letter
between Siepben Brown and Elizabeth Cntti
by which it appeared, that after the date of tbi
sentence they nad corresponded together ; tba
he had ackiiowledged himself to m her bos'
band in several of these letters, but told ber i
would be exceedingly inconvenient to bie af
fairs, and entirely destroy his claim to the ad^
ministration of Mrs. Aylemore, which was o(
some considerable value to him, if his nMU--
riage with Mrs. Cutts was known, and there
tore desired ber to be silent, and not give bin
any further trouble: that waa the effect of ladj
Mayo's allegation. The moment that allegn-
tien was brought into court,, the proctor fbi
Brown desired that the proctor for lady M«y<
might be asked, whether he conleaaed or ife.
nied tlie subscription of the officer who autlraO'
ticated the copy of the sentence given in thi
cause of jactitation ? which being confeaaed,
and the sentence by that means regtilarlji

C roved, the judffe said he could go no farther i
e could not enquire upon what sj^rounds thai
sentence was fi^iven, but would give a time tc
the party, if she thought it for her interest to
apply to the consistory court of London, and sec
whether Uiat sentence could be reverned ; bnl
it was held, that so long as it remained in force,
it was decinive upon the question of the mar-
riufie, and ahsolutely binding u|>on the judge
of the Prerosrutive Court.

ThiK heiu^ xUv. CH8e then, the question foi
your lordships* consiileiaiion now is, what ef^
feet the sentence t:<vt^n lu the consistory court
of London, in 1769, in the catise of jartitation
of marriHge hrouKt>t b\ the du. iiev«< of King-
ston, then Mtn. LliZ.irxfth ('hudiei^li, atrainst
Mr. HtTvey, shonhi h.ive in the I'rfSt'Ui caiiM
hpforeyoiir lordships? ^1} lonK, ii itouht U* a
vi'iy uiipunioiiahic WHste ot your iord*>iii|Mt'
time, utlhis hoiir of the •'a\, f'lr me to takf up
a moment of it in iir>.iiiiiitr, iliai marriage im by
the law and consfituiion of tins countiy ot ec-
cIcsiaNtical coeni/.n «•«•. Theic raiinoi lit* n
doubt, that if theie he nii\ iiti|ieili.iifu< to tbe
marriage uf tuo pcopie livinu i«i«reiher an iiiaa
and wite, that if one ol ilif p4iii*"i lieuitrKet-ber
the fact or validity of (he mi'iib^e, that if one
of the parties refuses to perlorm the duu^ ol it

far Bignmp ^ .
lijreaMMlUiim, that iroaeof the parties treata
rfae i^lier wiih jriol^ralile severity, that it',* [ler-
>na bnaatv <tf a marria^ which he t»uiinl jiia-
urj, Ar it' suinc kio<l of contract or M>leinnil,v
p»Tijil betwMo psrliea which may occasion >
difoM whcihrr it am'iiinis to ■ UmI'uI mBrriaufe
or DOI ; in eiery one ol'thne cases the Kircle-
•:ai>iiral Cunrt has co|fniz«uce to cl«cic1e u|ion
tIi» i|uc«li<j[is tlial arine ; and it i* aileiiial of
ikiiceio rc^u■^it, anil woiilJ ht! sju<l gruiiiiil
- r a|>pc«l lo a siiiieriur cqurl.

1 1 is triv, that m some ciuefi where a r
, ■•fe is hiniiehtnolilireelly, hut ci>l laterally
ci>nan|ui-uliaily in quMIion, as uhere il
^ii«s)iun iif legiliinacy in oiiler lo tnoke a
ID an intwrilaiure, it may originally commence
in ibe temporal cnurls, and aomeliineii is finally
drinuiineil lliere; Hi in the use of what is hy
«(MiitDOD Nw called special haainrily, lliat is,
nlt^rc there ia no doubt alionl the matriatie,
inil ^b<i<(i I he priorily or uoMeriorily iif the Inrih
I- i< X ly who la cUimini; the ialieniaoce
< I riai:e; lliere, it lieiiiGf a mere ranter
'iieiher tlie person was horu hrliire
^. ..I alter, it U |>ro|iertar the Jury lo

_^ Ill' ; lad theru is no nreil uflhainlrriiu-

aiuoB al tile Ecolniiiulivnl Cunrt al all. I>u iu
•Act obbc*. wbere Ihe matter be^ina ■» a ifucs-
Anb Mpon all ioherilJince. A person niaheaa
oMm to cn >nbcriiane« as bein^ the Ian liil son
ar- A bikI B. If the parties lo the tnarriafte or
•■B of limn \ie dead, the applicaiiun niui>l be
■■rfe oviginatly iti this ciiae lo the lem|ioral
«Barl>, Mid ijtey will |iroceed io it, auil will
ettiKT •i«Cn'mrne il finally, or ilireui a case lo
Ibv anltnary to cenily a\ioa the iiiHrnaKe. hu-
c«»tiiit^ as ihey And it necesMry tu do, and ac-
oonbDi; ua any qnvalioa arisen u|ioa tbe lefra-
Sty ai tlie inarria^ceor not. Bui even in iliis
caar, *• hicli ia merely a queslion upon a riifbl
ta aa III herila lice, and nol between parlies tu a
■aafTiaice, hul between parlies claiming; nnder a
Harikii;*-, if oiie of ibeni priHlnces a aerilPiice
fannert^ i;i*eii upon the iiiarriikk;i: by the lic-
dcnaaiical Court in the l-fe-lime of ilie |iiir(it:«
» ciach tnaniiire. the inumeni Ihal senlence i«
fii»Jili ■ it. the court olcommoDlan iaeslopjied ;
§■4 ■DlwithslaDdiii); ih« urii;iual parlies lo llint
■iKniicg are dead, the parties tu the anit upon
Ihc Mtlicriiance miibt aiill hare reoourse lu ibe
Ecdeaiasiical Cuun to re|ieal Ihe aejiLence for-
B*Hy giieii upon llie wtrruge, before the
MniparU courlcat) proceed a iiep lurlber : attil
if tbi* »eoience of Ibe E(!cleaiaHiic«l Court Is
•M srI aude. the ju'lgiDenl of Ihe lemporal
cCTurt mo«t br aijreeabte to lliai seoleuce. The
tm^ al tiuMiag anil Lepoiogwell, anil Keoii'B
«MF. rt^ioiled by lorifCnlie, are deciiive Ujnn
Ihrt puiiii ; anil il wouM, I should cunceiie, in
ftammu jaurnpitiinn upuolliecriiilildue to llic
Jecliiiie laid iIvhu in ihese cases, he wnrlh one
BMMH-in'acoiiMderBliiiu at « hat lime Ihe lateal
«f ilw*n iraa deterniuied. Kean's cose was io
Ibc fitlh uf king Jaines the iirsl. Vour lord-
ihipa know etiremely well, that was a lime
■hoi the differeui jurisdictions ofllie temporal
mi fcawiaaiicat ceiirts ivcre not id camplelely

you XX.

A. D. 1779.

[434

lellled,. or at least itiai selilrmcDl naa not «o
completely acqniewed in, nn ihe pan of ibe ec-
I'lcEiaklicnl couiK then, aa it has been Nince:
ihey did Ireqiieatly desire lo arrn|[aie lo ibem-
leliea mOre jurisdiction ihan ihe lemporal
courts were willing lo allow; and the cana&-
queiice of that vtns, they were very frequently
nilhsluuil. This produced a complaint to ihit
privy-councilin the 3rd of kinif James \, when
archbishop Uancrofl, in the name of the wbobt
cleri^y, exiiibited a set of ariicles a^insl tha
jniliri-B of ihe realm (as lord Coke rxpre^'uiea ii,
!<d Inal. COI,) enlilled, 'certain arlicln of
' abusea which are desired tu lie relbrnied in
* gtantiitg prohibitions.' Tbeae urticlea vtttm
delirereil la the judges, who iu the 41b of king
Jame« made ibeir reply lo tliem; in wbica
they iuslified Iha proceeJiogs objected lo by Ihc
afciibishop in etery particular, and ibai not
wilhaui some coi>siiJerah:e degree of narmlb
and reBeiitmenl. Nnw, withgreat dettrencotit,
your Inrdahips, I abould conceiiA, that a reso-
lution solemnly and unanimously made by the
itao chief jimiicea auil tive otlier juiltfes of Lbs
coinuion law in ihc very next year alttr such a
dispute aa this bad been carried no belwo-n the
two jiirisdiclionii. cannot well be auspccled of
pailialily lo the Ecctesiaslical Court i and lord
chief jUBlice Cake, who was one ol ihe conri,
was not a Jud^e that would at any lime bav«
stood lip ^r their encroachments ; aod there-
fore ilivre is not Ibe leaai riium lo apptebeod,
that there was any undue or iinprO|ier degrn
uf Biilhoriiy attributed by that resolution uf
the jud(,'es lo senteucea of the ccclesiaslical

My lords. Ibis case of Ketin, which is re- .
purled 7 Coke, 43, has been already 0|iened lo
your lordships: hut il being in my a p pre ben -
■ion extremely material io this cause, cntitain-
ioi; the whole learning tbal b lo he met with
in Ibe huob upon the subjecl, and going the
wiifile lenslh, as I bumbly suhniil iu your
lurdsbi|is it lilies, Ibat it is our bui>iiiets lo i;on-
lead firt io liebalf of th« noble person at lh»
bar, your lordsbi|)s will not perbapt think il
mis-s]ienl lime in me in state it more parlicu-
lurly. It waa a case in the court uf Wards,
in Hbich Tliiimns Kohertson and BlizaWb bis
wife were plaintiHii, and Florence tady StaU
lenge defeodaul, The case was, thatC%ri«lo>
pbei Kenn defaclu look to wife Elizalielh Slo-
H ell, and had isiiue hy her Martha ; soun nncr
this, Ibcre appears lo barcfieea a suit brought

the oouil of Audience, in which ibe judg>
roeni given was in these words : " prostenaum

Eliz. Slowel in minnre Blale eoruoLlrm aut
eornm alleriua babilum fuisee : eosilemqua
Cbr. et Eliz. tarn tempore aoleinnizalinni*
dicii mairimonii quam etiam cootinuo posiea,
etdem malrimonio diasensisse, ac eo prKlexIu
ijusmodi raatrimuaium irrilum el iuralidum
fuisse: necnoo aniedicios Chr. Kenn, el Eliz.
Stowel ab ilicto maliimonio separandosei di-
vorciandos fiire pronunclamus, eosque separs-
lus et divorciamiH, iisdeintiue Cb^.e^ E^\%,
3F

4S5]

16 GEORGE III. Trial of the Duchess o/Ksngstan, [4Sf

libertatem ad alia ?ota ooDfolandi concedimua
per banc aeotentiam nostram deftnitivam."

My lordfi, after this Kenn married another
wife, Eliaabetli Reckwith ; and after this it
ftppeara that Elizabeth Beck with brotin^bt a suit
before the commissioDera ecclesiastical to en-
quire again into the validity of' the marriage
betvreeo Chriatopber Keon and Elizabeth 8to-
well : there that marriage was again pro-
noimced against, and the marriage of Christo-

Sher Kenn with Elizabeth Beckvrith vraa af-
rmed. Then Elizabeth Beckwitb died, and
Christopher Kenn married Florence, by whom
he had iiaue Elizabeth, and then died. At last
the question came on between the issue of
Christopher Kerni by Florence, and Martha
'the issue of said Chri8tO|dier Kenn by his
> first wife Elizabeth Stowell, who desired she
might be permitted to a?er against the sentence
formerly gi?en against the marriage between
Christopher Keon and Elizabeth Stowell, de-
claring that she coold pro? e, that the whole
wis founded on an abitolote falsehood ; and
that those parties, who are declared by the sen-
tence of the Ecclesiastical Court to have been
marrieil in their minority, and to have dis-
sented to the marriage in the moment it was
solemnized, and e?er a^er, had cohabited as
husband and wife for ten years, and had isstie
Martha, the party before the court. This the
said party averred, and undertook to |>rove in
Ihe eonrt of Wards, in order to avoid the effect
of the sentence of the Ecclesiastical Court
against the marriage between her fiitber and
mother. But it waareaolved by all the jus-
tioea and barons, that the said sentence should
conclude as long as it remained in force. And
in answer to the averment that the sentence
was founded upon false facts, they said, that
though the ecclesiastical judge shewetli the
cause of his sentence, yet forasmuch as he is
judge of the original matter, the loyalty of ma-
trimony, we shall never examine the cause,
whether it were troe or not : for of things the
cognizance whereof lielongeth to the Ecclesias-
tical Court, we must give credit to their sen-
tences, as they giie to the judgments in our
courts. In that same case it wa9, that loni
Coke quoted the case of Corbett, and tliere
there had been no sentence in the Ecclesiastical
Conrt : that ori^nall v liegan upon the question
of a right to an mhentance ; and the party who
claimM the inheritance was advised to bring a
suit in the Ecclesiastical Court then against a
woman whojactitated, as he said, of an undue
marriage with his elder brother. 'The party
agaioat whom this suit was brought in the Ec-
cwsiaatical Court applied for a prohibition, and
the temporal court granted it ; for they said,
there is no sentence of the EcclesiasticVt Court
in this case for you to reverse, no sentence has
been given ; therefore we will enquire, as far
as we see we can do without interfering in
matters of mere ecclesiastical cognizance, re-
sp^ecting the loyalty of the marriage ; and we
may direct the ordinary to certify liereafW, if
tkere h a nccccritj fbrit ; but there is no need

to apply to the Ecclesiastical Court in the pre
sent state of the case.

f n exact conformity to thia principle, it wi
resolved by the judges of the common law i
the case of Bunting and Leppingwell, 4t'
Coke, 99, forasmuch as the cognizance of tb
right of marriap;e doth belong to the Ecclc
siastical Court, and the same court hath give
sentence in this case, the judges of our \v
ought (although it be against the reason of oa
law) to give faith and predit to their prooeeil
ings and sentences, and so always have th
judgea of our law done: and so it was n
solved, that the plaintiff was legitimate arid n
bastard.

Thia is the light in which the sentence! i
the Ecclesiastical Courts, given in matters pn
perly within their cognizance, were coninderc
in the courts of common law at the time wbe
the cases f have just referred to were detn
mined ; and there is sucb a train of caaes ei
artly conformable to them down to very mi
dern tiroes, which have been already quote
and therefore I will not trouble your lordabii
with re|ieating theAi, that I cannot help thiol
ing it must 1^ looked upon as a point aboi
lutely settled and at rest.

But, my lords, not to rest the matter mere!
upon authority, however atrong, if your Ion
ships consider the grounds upon wliich the
determinations were made, I apprehend tht
will be founded, not only in justice, but in al
solute necessity ; and that the confusion woo
have been so infinitely great, if, admitting di
ferent courts to take coffuizance of difiere
matters, their sentences should not be allow<
to take effect when they were given, but tl
matter might be examined over again, and a di
ferent sentence given in another court, the In
mer sentence remaining unrepealed, that tbei
would be no possibility of enduring such a prai
tice. Consider for a moment wliat effect it wou
have. Suppose a man to have brought a so
for jactitation of marriage against a woman i
the proper Ecclesiastical Court ; that al
should plead her marriage by way of justif
cation, and obtain a sentence for it : the nu
dies intestate after that, And she applies to tl
Prerogative Court for an administration as tl
widow : the next of kin of the deceased appea
there, and denies her to be the lawful widow
in proof of which she produces the sentence
is the Prerogative Court to give credit to tli
sentence or not ? If it is to give credit to i
(as it does daily) the reason is because it bin
universally as long as it is in force ; for, thoog
they are both Ecclesiastical Courts, there is i
more privity between the Prerogative Court ai
the Consistory Court of anv diocese, iban b
tween the Prerogative and the court of King
Bench. The Prerogative Court has the me
cognizance over pndiate and admiuistratioi
and therefore if universal credit is not due
the sentence ' of the Court which pronounc
for the validity of the marriage, the Prero|t
five Court must in the case supposed go in
the question over again, whether the partj 4

1 Iha pKily claiming to be liia widow
Dtuktried. The Preroga lire
Conrl i> KD ecclniaslical court, and procecils

tvUe: It proceeds in Ibe sams manner by
klicgaliMi and by written erideiice; tbejudg^iv
a |w*aim Wd in tbe same proreaniaa ; and tlie
>r»<iIMn« are the same wnh those that prac-
' •? ia ihe CoaBJBlory Cuuri of Loudon ; aail

. refore ilivre ix a |irobability that tbe Prero-
. itiie Cuiiri in iUi« case oiigbt agree with llie

< '£B •>!* Ilie Cousislory iu opinion tbat llie
<rna|re Mas « (good one, and contequenlly

^L ri^ llie ttdminialralion lo the parly praying
., ihe witlon. What woiild be the coiiW'
..nee of that? Why, ibe parly would have
-.111 (WO l>w-suita insieail of one, and hare got
by tbcni iwd piecea of paper called lenlencea
ftrbcr tnarriaKe, and lellera ol' administration,
hM abe vonbl nut be a bit tbe iieoier getting
pMwaaion ol the deceased's effecti. For these
lAv na»l apply lo a court orr:nmmon law ; and
lbar«i ftccnrdiiiK lo this doctrine, the Gnl per-
tmt abc )■ obliged to brinir an sRiion against
wUltE al \AfTty to lay. H'lioare you?— The
irfMnMaaraiiiit and widow. — No, I deny that;
kiatiue, yoa have oblaii'etl a sentence liiryour

pftaraCvuiias iho widow ; but those sentences
««t« fuuiuteil U|ion false laela: therefore 1 ob-
jeM la iliMit, and ditire there iii:iy be u ihiid
mKtta liatv ilruquiredintointbiscourt, whether
Ihew waia real inarriagB or oui. Nu'v, «up-
pannr that in thin third auit a Jury should he of
a Udfrrrul •piaiuii Iruin lhe,twa former courts,
wWl wuuM be ihe cuiisrquence ? Why, that
lb« p«Tly who broiighi ■ suit for a debt would
br ■ou-«uil<-d; au Uiat here womIiI he a legal
admiaiBtraiiiiu aubsiatiDg (unlesa the court in
which the auliua was brought could repeal it
as^i'raui a new one, a power which I belleie
■o Ka>|iaTBl court bss eier yet CKerciied) but
tbe banili of the admioiEtraior would be ahso-
loaely li*d "p, ibe effects coubl neter lie admi-
awi^cd, the debts of the lewalor could iierer be
caltod in, ibe Mate coubl neter be dialiihiiled.
Your lorilahipi see plainly that ibe Coiifusinn
iKMilil be so eilrenie, if tbi» doctrine was to
pretait, that no ern>r in a aenleoce. howeier
B^aivni. nor any iiiciinvenience. arising Irnni
it to particular penoua, however great, can be
• auSoirDt cauiie for any cou
iha naenlH <■(' a sentence giren in a
which iiaell ha« no legal cogoizancc:
there U the uimosi wisilom in ibose reiolution;
«hieb declare, that (here is an implieil credit
4m frnw all other courts to tbe Henlencea
qawm haviog tlie proper Jurisdiction over
■aULf in vrbich Ihe aenleuce bai been p

Hy lord*, Ihe cases that I have hithi
nanllviiFd and alluded lo hate been all in c
jumn. Will it be said, tbut Ihe question now
bfarcyourlnrdsbipa.beingioa cniuinalci
ihal tann ibe case? and. ibat alihnugb a
iMce ul (lie Bculesiasiical Court woul
Indauc and iwacli»i«e eoideuce in a ciril ci

A. D. 1776. [4S8

yet in a criminal cause it wsuld not have ihe
aame eflectf Hy lords, Ihe aame eiTecl I can
»ery reuilily agree that, accorilinq^ lo mv poor
nuiioos of law and justice, it would notliaTe ;
but I Biiuuld think it would hore ten limes
greater : and 1 cannot conceive il possible, that
it can tte held io any case, or in any couolrj
in the world, Ibal a seolence. wbicb would bie
held Id be conclusive evidence la avoid a civil
<leLnand agaititt a person, would not be held (a
be conclusive evidence and defence against a
criminal protecniion; I cannot cooceire that
10 be poKsible. ' In panalihus cansis benignius
' inlerprel anil urn est.' is a maxim of universal
Undoubtedly it ia the business of all ci '

id which are legally proved ; but
courts of law do not alrain points iu order to
make crimes, and intticl punishments ; it never
was (0 contended: and Idurouceir^ thai many
instances might be enumerated by tliMe wbo
are converaant in tbe praclice of ibe criminal
law, which I am nol in the len*l, in which
parlies proseculed are iiidulgeil with peculiar
privilege*. I believe thai Ihey aie not boond
by their tirst plea. If a party ban beeu ill*
advised in bia jilen, he is booud down by
thai in a civil cautu; bul in criminal pro-
secutions Ibe prisoner tray plead over and
over again, and is allowed to avail bimaelf
of every nicely in ibc Uw to avoid con-

Upon these grounds therefore I hope it will
appear to yunr lordships to he luoal clear, ibat
Ihe srolence of the Ecclesiaslical Cnurl aiwaya
has been ebleemed and must be alluwed to b«
final, to be the only evidence lliat can be re-
ceived concerning the fact upon which it has
heen prooouoced, and thai tbe fact is no longer
the legal object nf enquiry by any other court.
I do apprehend Ibis lo b« so clearly and fully
eslabliKhed. Ibnt I cau scarce conceive that tha
genllemen will deny it ; hut I up|irehend and
do ei|ieci that they will endeavour to find a
dislinction. And they will aay. Though we
sliould admit your rule, thai the Bentence of ^
an ecclesluslical court ia binding so long ■■ it
sobaisis in general, yet if that aenleuce wKa ob-
laiueil by collusion and fraud, it ia oiherwiae ; ■
and if it can In- proved lo have been ao oblaitf
ed, it will iiniiieiliHtely lose iis eRVct. I expect
we shall he so told; and I do admit, that lo
mninlain our present |H>inl, which is, Ibat lb*
sentence is conclusive evidence, we muK say
Ibat it i* a mle >viihniil any excrpliou ; wa
must say, that colluHun in ul)raioing tha
seulenc would nol give your kirdahipH any
Jurisdicli'in lo enquire inio ihe fact: and 1 do,
with gteai submisaiun, cnmenil bal'ire your
lorilslil|is, ihatnocoiii'l which has not an ab-
solute and no entire jurisdictiua over a tact, aa
much as Ihe lornier court bad, cau lake cognU
zance of » mailer ibai baa been already drcided
upon in ihai former couri, uixin a sugifFsiion
iir even proof ibat colliiMnn Ha- used in ob-
tainiug the Ibrmer seatence. 1 (nayi and I uk

4S9]

16 GEORGE III.

Trial of the Ducheu of Kingston,

[44C

afraid I shall, talk very ipfnorantly re6|>GCtin|r
tliiwe cases in which the courts of commoo law
take cognizance of matters which have been
alreii<iy «lecicle4 ufM)'n ^ other conrta, upon-
pruol that tlie decision was obtained by fraud
and collusion of the parties at that time li^bre
tlie court. Town I am by no means master of
that subject ; but I appreheud they are only in
auch cases where eacu court, suppose the court
of KingVbeoch and Common Pleas, or any
other, has an entire concurrence of jurisdiction ;
ivhcre there was an option in the panics to
commence the suit ori^oally either in one court
or the other, and where the' effect of tiie sen-
tence of the two courts would be perfectly
equal. In such a case, if after sentence ^ven
in one of those courts application should be
made to the other to reliear the matter, on
jin^of that the former decision was not fairly
obtained, this mi^ht be a just ground for the
court to which proof of the fraud is offered, to
aay. We will hear the matter over again, which
we had a right to have heard as well as the
other court had, had it not been that the cause
was commenced with them : but I apprehend
BO court can do this, the sentence of which,
when it is given, will not have tlie satne legal
efiect to the full as the sentence of the former
eourt. Nor can it be said that this court, high
and august as it is, or any other court of cri-
minal jurisdiction, can give a sentence upon a
marriage, which will have all the effects that
the sentence of the Ecclesiastical Court will
have. Strip the question of its circumstances.

^nd let it be asked simply, Has the House of -terial, to shew the extraordinary and unusua

Lords a power to try the validity of a marriage P
Every body will say at once, It has not. Al*
low me to consider what would be the conse-
quence if ^' our lordships were to takecosfni'
aance of this matter, and were, notwithstanding
the sentence of the Ecclesiastical Court, upon
the suggestion of cullusion, or any other sug-
gestion, to say. We are not barre<l by it, we
will go into it; and that the party tried under
such circumstances should be convicted of po-
lygamy: what would be the coiise<iiience of
that ? Would it set aside the second marriage?
I take it most clearly it would not. Suppose
that aller the wife had been cuovicted uf poly
gamy for marryin;jr \\^ in the life-time of A,
her former husband (a sentence agoinst her
marriage with A having first been obtained in
the Eccleiiastical Court) she should by any
meaus become entitled to a fortune, by legiti-
macy or otherwise, would not B have a ritj^ht
10 demand the legacy, orauy other effects that
came to the woman subsequent to the convic-
tion? 1 submit to v'tur lordships, he cerlQinly
would. Suppose u to die intestate, mi^ht not
the uife, notwithstanding such a conviction as
this, pray the administration to bin effects? and
if her interest as widow was denied, as having
been tlie wife of A, at the time she married B,
and she in reply to this shoald produce the
sentence in the Ecclesiastical Court against
her mairia^ with A, bearing date prior to her
noyuriage with 0, the Court ^otflti PVt refuse lo

grant administration to her. Suppose thstsftei
ihe conviction the parties to the second mar-
riage should continue to cohabit, and ahoalt
have children, would not they be entitled tothi
inheritance as the legitimate issue of the se-
cond marriage ? I take it, that under the Sutho
rity of the cases of Bunting and LeppingweU
Kenn, and the rest that have been since de*
terroined conformably to those cases, then
cannot be a doubt that they would, if a questioi
should arise upon the right to the inheritsno
in a court of common law, so long as the ce
clesiastical sentence against the first ipafriagi
remained in force: in short, the convictioi
would have no operation at all u|)on any cifi
effect of the second marriage. The consequeno
therefore of proceeding to convict for polygaitaj
for a second marriage, in a case where iben
had been a sentence of the proper ecclesiastics
court against the first, would be, that a woinai
who had been convicted of felony for marry
ing, might under that criminal act (as it woimi
then be pronounced to be) derive to. herself al
the privileges and advantages that accrue to i
wife in tlie fortune of her husband by a lawfa
marriage, and convey a title to her issue to thi
greatest lionours apd estate in the kingdom
These are such glaring contradictions and ab
surdities, as I should with great deference ap
prebend that neither your lordshifis, nor auj
other court of justice, woultl give occasion to
without the utmost reluctance. There is a csm
or two which have not yet been mentioned
and which appear to me to l»e extremely ma

steps that have been sometimes taken by cooru
and id cases extremely similar to the present
to avoid a contrariety of sentences of coorti
having difftrent aud distinct jurisdiction. Ii
the case of Bo^leand Boyle, in the Kinff's*
bench in 16B7, reported 3<1 Mod. 164, a libe
was admiltrd in the spiritual court against I
woman ' caiis:'\ jactitationis mniitagii.' Th<
woman prayed a prohibition to the Ecclesias*
tical (yourt ; and the sugirestion was, that thii
person, who now libelled a^rHinst her in a catiai
of jactitation, had been in<ticti*d at the sessiooi
in the Old-Bailey for marrying her, he having
a wife theu living ; tliat he was thereupon coo-
victi'i), and had judgment to be burnt in thi
hand ; that therefore they had no right to jirO'
ceed, and therefore a proiiibiiion was prayed
Serjeant Leviuz in that case niove<l for a con
sultation, because uo court but the Eccleiiias
ticfil Court can examine the marriage. U|ioi
the contrary it was said, that if a pndiibitiei
should not ^o, then the authority of these tw«
courts would^nterfere, which mit^ht lie a lhin(
of ill cousequtince: that if the lau fulness o
this marriage had been first tried in the cmif
Christian, the other cunii ut the Old-Baile^
would have given credit to their sentence, an
upon this ground and this principle merely
that there might be a contrariety of asB
tences, which would be mischievous. Tb
court went certainly a great way, for it prnlu
bited the ficclesiastipal Court from proceed

Jhr Jiigami/.

&lv lonl«,i.tio

'-■ij I'umiMg, Hhicli begi
' >>iirt a/ Eieler : It wa* n cause uf reslllution
:~ emijo^\ rigbU biougitt by III
I ii£ lUiel WW i^iliiiittnl ; und then lliere was
' 1 afifieBt lu liie caurl ol' Arclii-s. The jililge
■ ■aouncpil liir tliu >|>peiil, auit was |iriife«I-
1^ upon ilie nierlts of ttie <9Uie ; lint U|>uii the
.11 of Noveielifr 1727, Iib wob ssrveil wiiti •
; I i>)irl>>iiun. Au(] tlit ({round for nblaiDiuK this
I .".Irrxiiiiri wa$, iliBl Sanli Furamsn prpteiiil-
1: - < ' i>e tile lawful wilt- cf the iidil FiirsiiiBO,
ita.'i ii..li<ieil bim Inr Ui|{iiny in marrying ano-
• \ ■ ' 1 .1- , .111(1 I'aiUJ iu proof oC lier own mar-
.> iitn-upun ilie Mid FurKinaD was ac-
.:iLil ilier«rure it wbi siiil the Kccle-
^ <iLiri xhuiilil not procofil. Nnw, my
■ ,1 i-ri'T judgment girtn by a court, id
s mailer in whicit it can iiave unl^ an inci-
4ttt»l pBrtial juriiMliclioD, ia ■ RafBcient csuw
ftr Moppinij kll tubsequent proceeding iu tbe
~— - tia«e, vren in tberaurl wbich has llieea-
lirc ordioMy jiirttdiciioii orer tl>e question, on
MBMiol oi Llie ill conaequeuce that would eaaae
(n^ the iDlerference ol' tbe auilinrily uf llie
ti»o eoana ; aurely, by all parity of reasoping,
ia ac»se where i^ippearsiliat the court, wbich
iIm law and conitiliition hate entrualed with
die etiiire juriwlicliuD over tbe milter in quea-
tiao, baa already takeu cognizance of it and
■«v»<Hii>ce<l its BcnieoM, the court of incidental
jarad*cliaa will give credit to aucb seotence.
Mid otmtnrm it* ono senleuce to it.

If I he ill cnaseuiienceE ariiing fVam claibing
•ad (Mutndiclory judgments ol' dilTerent cuuna
taay be allowed to have any influence upon
jout totdthips' jadgmenl in ibis lualter, thei'e
■ Hi> need 10 rack Ifae invention lur r.ircum-
aUMees llial migbl happen : tlie case bel'nre
your Ufdabip* o«ed but be pbinly stated, to
■fciw ibuile iDcon*enieDceB in lliu elrongeit
%fil. The KtniF'iice of tbe Ecclraiuiical
C*«rt prtmnunciiig and ilecUrini; ibe noble

IrvcW with Hr. Herf^y, was given in Febrnary
1769 : soon after, sbe married tbe duke of
KiligaWn under Ibe dis|iensatiuu ibst i« usually
pwiled Tor the marriage of persons of thai
ra«k. Under Ibis marriage Ibe duke and
cobubiled between four aud five years
rife; at lbeexf>iraiiun of which
• of KitigilDn died, having Hist made
by whicb be gave Ibe moat afTec-
nd tniisl li'iiiourable lestimnoy of bia
as bis wife. At last, in July
1775, <iODie> a bill of indiclmenl, wbich is to
Mt Ike •enlcnce of tbe Ecclesiastical Court
mCitely al nougbt, and to brand this open
snd •ntamn marriage, confirriied by a cobabi-
tadon and repuMlion of so many yean, with
Ibe Dame of a letony.

My lordi. if lliia indiclmeni should be pro-
eidlr>l ufion, and tbe fuel of tbe tirsl inarriiue
hami dttferaiil/ iioiii what a^itearad to tue

A. D. me. [4tf

chancellorof London at ibeiiiiie of pmnoBDcing
bia arnteoce upuii it, Ibe i^onfiisliin, tbe seaodal
(I ibiub 1 may venture lu vail ii) that would
I arise from the contrariety of the two lenteneea
that would then be proiinuDced, and both still
in force, would be sDcb, thai I caiinut cunceiva
ibal any court of jnstice would busard il, upon
niiy siiggrBtioD or apprehensiiin nl error in ibc
lurmer iienience, or fraud in obtaining il, and
wbicb Has irremeiliabte by soy otb^r means,
or any olber the raoat sinking or plausible ar.
guinent that could be urged lo induce them lo
il. But Ihe plea of ibe npcessiiy of doing sn
extraonlinary act In ant asiile an improper
sculence, or the eB*ect of sucb a sentence,
is certainly leas applicable lo Ibe Eccleaias~
lical Court, than tu any other court known
in this kiDgiluiu; and least of all is il ap-
plicable Id tbeir pruceeedings in raarriags
causes. There is a course of appeal in tbe
ecclesiaatical courts, a deliberalion in their
proceedings, that is unkuuwn lo auy court in
this kingdod) ; from the arc bidi aeon nl court
(if the cause be originally inatiiuied there) to
tbe consistory of the diocese ; from thence to
Ihe uietiupoliiical court, wjiiiih is the court of
ArcheB ; from thence tu the king in his court
iif Ciiancery ; from tvbicb a commissioo of
Deleifates, to brar aji;ieals, isaues ci debito
jtutilit : in every uue u\' these courts the par-,
lies ore not liaunodown lu what has beengifen
in eiidence in tbe court bttuw ; it is uol mere-
ly error in law, but error in fact likewiie may
tie correoleil upon appeal in the Eccteaiastical
Court ; and if ibere are any facts material to
the puiut iu issue, that have not been pleaded
and examined to in Ihe inferior court, they may
be pleaded and given in evidence io Ihe Court
of Appeal ; and so down lo the laal court.
Besides this, iu every one uf these courts il ia
nol a matter confined to Ihe two parties thai
ioitiluie tbe suit, and therefore may carry it od
coljusively ; for in any pprind of tbe cause a
third person, that baa any interest in tbe matter
in question, if be sees that tbe two original
parlien are colluding, or ihst one nf them
19 negligent, or if he has any other reasou
tu be diisatlslted wilb the manner in wbicli
Ihe busineu is conducted, he may intervene
tor his intereal, and the court must tj dehito
jaitiluc admit him lo do sn ; he may give in
a plea, if he intervenes before Ibe cause is
cDOcluiiH ; he may examine hia own wit-
nesaea, and act in all respects as a party in Iha
cause. M'hal puSKJble human means of pro-
viding against collusion and surprise is omitted
out uf this method of proceeding! Bui, my
Horda, even this is not all ; for when the cause
has run Ibis great teugtb, application may ba
made lo his majesty in council, who, if be ii
advised that ibere isa ground for it, has a power
ex gratis lo grant a commission lo review iha
whole matter over again. Prom this view of
Ihe method of proceeding io ecclesiastical
cDuriB, 1 apprehend it will appear lo your
lordsbijis, that ibey are nut so ill provided with
eilbet to avoid, ot lorefuciu en<m\«\!tiw

443]

16 GEORGB IlL

l^rial of the Dttchess ofKing&ton^

144^

jadgpnehtf, at to stand in need of the txtraor*
diaary inteqiositiofi of other courts, in aoy
matters that are pro|>erly withio their juris-
diction ; but least of all is this necessary in a
marriage cause, for a marriage cause is never
at an end : let the cause ha?e been argued e?er
80 often, let it have been sifted with the most
scrupulous exactness and attention, let there
have been one or more apfieals, let every step
Kave been taken that can be taken to gi?e a
final conclusive judgment, still the same party
may come before the court, and say. The court
has been imposed upon ; 1 desire this matter
may be examined over again. The court, upon
such application, would and must take cog-
niianceofit.

I will trouble your lordships with quoting
but one authority for this, which is that of
Saachez in his treatise de Matrimonio, lib. 7}
disp. 100, c. 1, uho lays it down in these posi-
tive and explicit terms : <* Id in matrimonio
spectale est, ut sententia in coiijugali caus^
lata, quacunque circumspectione pnemissa, sive
bis ah eft provocatum fuerit confirmataque sit,
sive lapsus terminus ad apn^landum sit, nun-
quam transeat in rem jumcatam, ac proinde
non ita efficacem auctoritatem sortiatur, quin
retractanda sit, quoties compertum fuerit earn
errore quodam latam fuisse." And the reason
assigned for making this material and singular

of Kingston, enters upou the examiiuitiuo oi
distinction between marriage caiises and all | certain objections to his conclusions,
other causes is, that in general the consent of ' '

the party who does not appeal from a sentence
which is given against him, gires force and au-
thority to the sentence, though there might
otherwise be a ground for him to complain of
it. But, says the author before quoted, ** sen-
tentia per errorem lata in causft conjugali,
transiens in rem judicatam, foveret peccatum,
separando veros coojuges, vel uniendo eos qui
tales esse neqoeuut: at nullum vinculum
qnantulumcunque multiplicatum, potest fir-
mare actum, ex quo peccatum cnnsurgit."

The same doctrine is laid down in a multi-
tude of other writers upon the canon law, of
which there are waggon loads ; but they are
unanimous in establishing the maxim, ** sen-
tentiam in causa matrimoniali nunquam tran-
sire in rem judiratam ;" which 1 am sure
vour lordships will not hear denied or disputed
by the other side.

Prom hence it will appear to your lordships,
how little (ground there is for that notion which
aeemato ha\e got abroati, that the proceedini^s
of tlie ecclesiastical courts in canses of jactita-
tion, or any other causes, are such as tend to
loosen the bonds of matrimony (which both in
a civil and a relit^ious light without doubt is the
roost essential bond of society) and give parties
an op|K)rtunity of dissolving: it at their pleasure.
The court in these, ns in all otlier ca^es, must
determine * secundum allegata et probata,' ac-
cording to the evidence l>efore it : but %vhere is
the encouragement given to par< ies to collude,
or what security can they have umfer a sen-
tence obtained by fraud, when that fraud mny
at any future time be detected, by briiigiog for-

ward that evidence -which was before withbeU
and, upon proof that the former eentenoe wa
erroneous, another of a direct contrary ten
deney will be given f

My lords, the marriage, which is the ool
fact m dispute in the present case, has man
years ago been put in issue in the proper mat
ner in the proper court, and a sentence give
against it as decisive as any that court can giv
in a marriage cause : upon trust aud confidenc
in that sentence it was, that the act was doi
for which the noble prisoner is now accuaed bi
fore your lordships ; the sentence is prodocci
remaining in full force; and, for the reaaoi
that have been urged, we humbly hope yoi
lordships will be of opinion, that it ia the onl
legal evidence that can now be given reaped
ing the fact upon which the accusation i
founded, and that \ our lordships will tberefm
receive it in bar of any other.*

* Mr. Hargrave, in hisTreatiae * Conoen
< ing the Effect of Sentences of the Courts £c
* clesiastical in Cases of Marriage,' &c. afts
having stated the numerous authorities si
which he founded his conviction of the coodn
sive quality of sentences by courts having i
peculiar jurisdiction, and of the application e
that general doctrine to the case of the ducbca

1. That the sentence in this case being conki
matrimonium hath not the effect of a tblig
finally adjudged ; or, according to tiie langosfi
of the civilians and canonists, * non transit ii
* rem judicatam ;' and that as it would noth
conclusive to a spiritual court, thereibre i
onght not to be so to the temporal one. 9
That though the sentence, so long as it renisia
in force, may bind tlie lady and gentleaw
who were the parties, strangers ought not S
be affected by it. 3. That the interest of tb
king is not bound by judgments on sentences il
suits between private persmis ; and therelw
that the sentence ought not to be ef»nclusivsii
proceedings to which he is a party, as he isii
an indictment. 4. That sentences of the ac
clesiastical courts in matrituonial cases ar
not conclusive in the temporal courts ; becam
in them the suit is diverso intuitu, 5. Tba
the act of the 1st of James the 1st, on wbid
the lady is indicted, having given to the tefl
|M>ral courts the trial of polygamy, the
ought, so far as regards that offence, to 1^ coi
sidered as having a concurrent jurisfliction ovc
questions of marriage with the spiritual court
and that if they are concurrent, the infereac
from the determiiKMl cases, which chiefly di
pends on the supposition of a |>eculiar junadic
tion, wholly fails ; and then it will only remai
to shew, that the sentence wouhl not coodiJ
a spiritual court of concurrent jurisdiction.

Having set forth his reasons for thinking thi
the preceding object ions are invalid, Mi
Harin^ve terminates this branch of his invmli
gation thus :

«< The only other olyectieD, .whieh eeetMl

1

^453

Lord Pra. of the Council. My Innls, I nioie
war lvrtlB<ii|>s lu a<ljntirti lo Ihe Cbauilxr ot
^rKanMnt. — Lordw. Ay, By.

X. H.S. Tli» Holisc is acljoarned to Uie

~ " n of Pnrrumcut.

t44G

Tbe l.Drdi tnil olbera relurnrd lo iheCliBm-
kcr of i*arliBinnil in ibe BimeOrilcr Ihey c<me
in»n, rxrrpt llie Lrml HlL'li SLewunl, who
valk^d at'ler Itii nival l>ii(hn«fis the duke ol'
CambrrlaDd ; »nd. (ne Hnuse leJui^ llius re-
•MtAMl, Tcvolred lo proceed rtirllier in ilie trial
wf EU*abelh diicbca-ilciwH^er ot'KingstOD, in
WBltn>>i-irr-r>ill, la-iuomxr Bt ten uf the
clock in the moritlng.

lm>e been heretut'ore cileil t'ur lliat
; Itinogli 1 do oot see that tliey in any
•«T*B ■Iiply.

•• Oik- id llie rose of HInks end Harris, iu
Mkhrh m fnirhilHtinn, ti> stay suit iu the eccle-
■^rtieal court Bi.ilustuae for incest in marrying
ku first w ilie 'a ti Bier, wasgrauletl ijuoad tanul-
tlmg the marriage ; becauae tbe aecond wife
««i 4ettH, nnd there wna iisue ol' the niBrriagp,
M»J canaM|unitty baBtardiaing^ the iaaiie naiild
hwaa be«i cantradicting a rule i>l*our law, that
df facto Bball not he aiaided alter

|ir«tes B right to controul the apii ilual courti,
■facre lliey proceed in oppoaitioD to the com-
BDon Uw in a poiol in which It predontiimteB
ner lh« lair ecclesiaitical. — Anollier cage is
Hiltwil and Pbaly, in which the llieu lurd chief
jBBlic« or the Kinu'i-bench on an issue from
Chaacvry lo try ■ marriage refused even lo re-
amt ■« etideuce a sentence against ibe 8up-
powd husband fur fornication with llie aup-
faaed wife, and his payment of money iocom-
■atalion tor liie penance enjoined. Bui this
OM ii a ungle one against all the oihel' aulhO'
ikka, and is unsiip|iorteil by nny reainuing ;
Md Itie r^eclion of the evidence was greally
fidfiprafed of by lord chaneelJor King, when
Iha nailer came before him again, lliough it is
BM nenlioneii wbeiber lie granted a new trial.
Btm 8 Mod. 180. — Ab to Eniinerlon and Hide,
which w^ before lord Holt, and is ciieil in
Combrrb. 72, and Rbinn. 4^5, bul most fully
ia S Mod. 161. it only pro*es, thai in on ejeci-
«cM Ibe temporal court may incidentally try
A* kwfuloess of marriage, which ianol denied.
—Tbe ram of Pride and tbe enri of Itath in
3 Lev. ■\ to, is liable to the same observalion."
Hut though Mr. Hargraie thought that,
nippoung llie tenleace in the case in quesiiun
la hatir been pronouoced in ■ suit really ad-
nrv, Mirb sentence was conclusire ; yeth«
Ihaofbt llial pmof of collusion between the
ptAoB wiMibl take from the sentence its whole
■dvcL Am to his diKiiuion of thi

The Second D*r.
Tuesday, April 16.

Munday, eKcepl the Lord High SlewanI, who
walked after his ruyal bighnew ihe duke of
Cumberland, and the Peers were there seated,
and the Lord High flteward in bis chair.

L. H. S. My Turds, Ibe House is resumed.
Is it yonr lonlships' pleasure that Ibe judg«s
may be cotered ? — Lords. Ay, ay.

Then the Serjeam at Arms maile proclama-
tion for silence as usual ; and Ihe duchess of
Kingslon being conducted to ihe bar,

L. H. S. Mr. Attorney General, yoa may
proceed.

All. Gen. My lords, I And myself en gageil
in a fery singular debate; upon a point per~
tectly new in e)l|<erience, analo;;oiiE to no
known rule of proceeding in similar cases,
founded on no princijile, none at least wbid)
has been slated.

Tbe prisoner, being arraigned upon no in-
dictment for ie\auy, pleaded iioi guilty ; upon
which, issue was joined. In Ibis stale uf lite
business she hath moTed your lordships, that
no etiifence shall be giren or stated in proTC
Ibat gudi upon her, nhicb she hath denied and

Tbe only case cited in support uf so cxlraor-
(linary a motion, that ol Junes and Bow,
Carth. 225, hears no relation ur proportion to it.
In the ii'IhI of «d ejectment, the defendant, ad-
mitliog tbe plaintiffs lille lo be olbrrwise
clear, avoided it by a sentence against the pre-
tended matrimony of his mother with sir Ro-
bert Carr; after which both parties married
with other persons ; a sentence, unimpeadied
in form of substance, against his own mother,
from whom he was lu derive title to his state ;
decisive consequently as a iiiie with non-claim
or any other perfect bar, and submitted to a«-
cordingly ; for the plainlilT was called, and did
not appear. Here, if the sentence should ever
come properly under examiualiou, it will aii-
pesr to difier in all those resjtects.

In the mean lime, instead of defending, Ihia
motion is only putting quesiioos lo your lord-
abips, hypntbelically, for opininu and adiice
how to order tbe defence. If ihis sentence be,
as Ibey argue it, a definiliTe and preclusive ob-
jection lo all enijuiry, llie priiuner ought lo
have pleaded it In bar, and to bare put ihe pro-
secutor upon dealing wilb her pies as he thnnld
be BitvisiKl ; or she may still rely upon Jl in
esidence of not gnilty. But niiiinui placing
any such confidence in il themselves, iliey call
uiwn your lordsliips to make il tbe tuiinitalioii
ol an order lo slop Ibe trial.

My lords, lo say that this ia wholly unpre*.
cedented, goes ■ great way lu conclude against
il. To say ihil such a mte would be iucuit-
sistenl with tbe plea, and repugnant lo the re-
cord DB il now stands, seems decisive. AAcx

MT\

16 GEORGE III.

Trial of the Duchas ofKingtlon,

[*

lordships, she beseeches you not to hear.her
tried. Out I shall not content myself with
this answer ; because, as your lordships have
thought projier to bear counsel in support of
Ibis extraordinary motion, I am bound to sup-
pose it a fit subject for ar((umt*nt, and to lay
before your lordships my thoughts upon it as
they oociir.

Before I go into particular topics, T cannot
help observing with some astonishment, the
general ground which is given us to debate
upon.' Every species and colour of guilt,
within the compass of the indictment, is neces-
sarily admitted. So much more prudent it is
thought to leave the wont to bo imagined,
than even to hear the actual state of her of-
fence. Your lordships will therefore take the
crime to be proved in the broadest extent of it,
with every base and hateful aggravation it may
admit ; the first marriage solemnly celebrated,

Eerfecily consummated ; the second wickedly
rought about by practising a concerted frauci
upon a court ot justice, to obtain a collusive
sentence against the first; a circumstance of
great aggravation. When Farr and Chad wick
defendeda burglarious breaking and entering,
under a pretence of an execution, upon a judg-
ment fraudulently obtained against the casual
ejector, it was thought toagerairate their crime,
and tiiey suffered accordingly. 1 allude to the
case in kelyng, 43.

My lords, 1 take the ground so given me
with this reser? e^ not that I wish to have her
crime implted, from the conduct sbe is advised
t) hold here, to all purposes and conclusions ;
but that the necessity or the argument obliges
me to assume it, as plainly and distinctly con-
fesse<l, while this sentence is urged as an irre-
fragable bar to the trial, whatever may be the
degree of her guilt, however such a sentence
may have been obtained, and whether it tends
to aggravate that guilt, or to extenuate it. The
proposition looks so enormous, that it requires
great abilities to give it any countenance, and
tiie most irrefragable argument to force the
conclusion.

I must also remind yotir lordships again,
that the sentence has been read in this stage of
the proceedin;^, by the consent of the prose-
secutor, and under the express reservation of
his right to object to the competence of it, as
evidence on the issue joined, unless he should
think tit to make it part of his own cause ; at
present it stands admitted merely as the ground
of this previous motion. The sentence being
collusive is a imllity. If fair, it could not be
admitted against tlie kin^, who was no party
to the suit. If admitted, it could not conclude
in this sort of suit, which puts both marriages
in issue. The objections arise from the general
nature of the sentence propounded, which
is ne%'er filial ; from the parties, who could not,
by their act, bind any but themselves, or those
who are represented by them, or at most those
who might have intervened in the suit ; from
the nature of the present indictment, which
puts the nuuriago directly in iatne ; fron the

circumstances peculiar to this tenteDce, wb
prove it to be collusive.

Without adverting much to those particuli
the learned counsel for the prisoner aflected
lay down an universal proposition, that all «
tences of peculiar jurisdictions are not only f
missible, but conclusive evidence ; and reten
to many cases, of which 1 shall controvert i
thing but the application.

The case of Burroughs and Jamineaa, S S
733, is nothing to this purpose. That was a ai
posed contract by accepting a bill of exchan
at Leghorn ; which acceptance was void
the peculiar laws of that country, because t
drawer had failed without assets in the ban
of the acceptor; and was pronounced to be
by a competent court in Liegborn. The plai
tiflT insisted upon it, because, if the acceptan
bail been made here, it would have bound ; bi
accunling to the law of the place where it m
made, the acceptance did not constitutti a co
tract. The plaintiff might, if he had been s
vised otherwise, have defended that suit ;
acquiesced in the decision.

Courts of Admiralty sit between nation a
nation. They proceed in rrm, and they bl
the property, not only against the appart
possessor, but all the world ; or else the ve
existence of the Court would be subvertc
Any body may claim ; and proper mnnitk)
issue fiir that purpose : therefore, in the ca
of Hughes andConielius, the plaintiff failed
his action of trover ; alihough the venli
found his property, and consequently the st
tence of the French Admiralty erroneous ; bi
cause the Court had no such jurisdiction ovi
that sentence. For the same reason, in Grei
and Waller, -the sentence of the Admiralt
could not be gain- said. There is no appeal bi
to the sword.

The same principle governs as to seizort
in the Exchequer; where any person ms;
come in and claim; which if they neglec
they tacitly assent to the condemnation. S
of seizures tried before the commissioners o
Excise.

8o in the case of Moody and Thurston, •
Str. 481, where an act of parliament gave af
action (on a certificate of commissioners thai
money was due from an agent to ofiicers of tlu
arm^-) the agent could not defend, by cootrS'
verting the truth of the certiBcate. It wai
contrary to the act, and he might have bct-n
heard before the commissioners.

Where a soldier had complained of his mt^fl
for undue correction to a court-martial, whidi
dismissed his petition, he could not maintain ai
action, for he had been heard in a court com*
petent and final to that purpose.

No temporal remedy lies to recover possei*
sion of a benefice forfeited by deprivation
while the sentence of a court competent to de
dare the forfeiture remains in force.

The same rule holds as to derivative claiml
Therefore the judgment of ouster against <
mayor is good evidence against the corpontoi
who olaims under him.

449]

for Bigamy.

t]
•I

"'I

^1

TbOM who enter into colletriatc Mtablish-
oeoti airree to Bohmit themKelVei to the laws
and maifirttmiea appointi'd by the founder ; and
coMequently eannut reclaim against them.
This wasall wliich wa^ delermineil iothe Vi\u%
ami New-Colleife, aud many other cases nliich
nisfht have been reterre<l to under the same
head. In rooHt, if not all the cases citeil, the
paities had actually been heard belbre the pro-
per tribunal.

The office of ip^ntincf probate and commit-
tin^ administration in a special authority com-
aitied to the Ecclesiastical Courts, where all,
who claim interest, may be beard ; so thfre
eui be no defect of justice. Therefore, in a
fast abunilance of cases from Noel and Wells
•oeo af\er the Restoration, to Barnsley and
PiBvell en lord Hard nick 'a time, the temporal
•ourti ha?e refused to take cognisance of the
light of personal representation.* All the cases
•mier this head prove no more.

Cases were also cited to prove, that issues
jmed upon the lawfulnesi of marriage, pro-
fcswMi, general bastardy, and so forth, must be
tried by the bishop, and to infer thnt his juris-
Moo is exclusive ; and the statute of 9 H. 6,
«. 11, was cited to prove, that it is final not
oaly to parties and privies, but to strangers.
The effect of that statute is rather to prove, that
ill the world nre, or may be, parties or privies.
The only public object of it is to provide sufli-
Mt notoriety to make them privy in fact, as
idl as in law. It provides a great variety of
fnclamatioos to the end ** that all persons, pre*
todin^ any interest to object against the party
vliicb pretendeth himself to be mulier, may
m le the ordinary, to whom the writ of certi-
iate is or shall l>e directed, to make their al-
kfitions and objections against the party which

Cfendfth him to be mulier, as the law of
y church reqnireth." For thereat, the sta-
IMe teems to have betru an act of violence mid
friod, by the powerful pretenders against lady
Audley. The mischief, they affected to dread,
nald not happen. A certificate is utterly void,
■nlns made apon process, at the instance of
the parties. The certificate of mulierty binds
the parties to the suit (as iu all reason it ought,
Hile sochft trial is tolerated) but nobody else :
Mi so it had been often decided before ; and
yn the statute provided that every such writ
Hd certificate at the suit of lady Audley fthould
WfoiH. On the other hand, no such issue as
folessinD, bastardy, or lawful matrimony,
CMld be tried by the bishop between strangers;
lad when tried by the country, it bound only
iWic who were parties to the trial and attaint.
Kor was an infant bound to answer a plea of
roeral bastardy. But whether the conclusion
^too extensive or not in these cases, still it
^ only in respect to a civil right, and tried
V a competent jurisdiction, sitting for the
iiprefs purpose or deciding upon it, the juris-
Vbon being created and established by the
WiiL

Benlenees, which are given by the bishop or
■I official of fain own mere aatbority in matri-

VOL. XX.

A. D. 1776. [450

menial caiises, have the least pretenee of all
others to bind or infiufnce any question which
may arise aUerwardK in • judicature. Siieh
causes punixh no erii^te, try no right, proceed
to no civil effect. They prucee«l ' pro Kalnte
anim« rei,' to reform some enormity or neglect
in religious life ; * in qua' («Hys Covurruvias in
his epitome of the 4ih iKMik of the Decretals^
par. 9, c. 8, s. .19, n. 1,) * de msximo Sacra-
mento agendum est.* The process is, * sim-
pliciter, de piano, sine stre|Ntu et figurft juiii*
cii.' Clement, lib. 3, t. 1, s. 9. From the
very nature of such a cause, it must follow,
that the judgment cannot be final. No con-
sent of parties, or .omission to appeal, or re*
peated affirmation of the same judgment, given
it any force. <* Quia sententia ilia transiens in
rem judicatam fuveret pecoatum, senarando,
veroi conjuges, vel aniendo eos qui tales essd
ncqueunt. At nullum vinculum, quantvlbm*
cunque multiplicaturo, potest firmare actum^
ex quo peocatum consurgit.'* 8anch. de Ma*
trim. lib. 0, disputat. 100. In the same di»r
putatioD Sanchez says, *< potest etiam judex,
ex officio, parte invita, procedere ad retractan-
dam hojusmodi sententiam ; imo ad id teneri
judicem probat texius; quia sui interest pec*
cata auferre. Hinc deducitnr, certft regulft
prescribi miniroe posse, quoties audiendus sit
volens prsedictam sententiam impugnare." H^
illustrates the doctrine, by observing, that in
costs, which is a civil interest, a matrimonial
sentence is binding. ** Ratio est aperia • sen-
tentia eniro matrimonii ideo non transit in rem
judicatam, ne foveretur peccatum, instinendo
matrimonium irrituro, aut dissolvendo validnm |
quae ratio in expensarum condemnatione oea<*
sat; et ideo sortitur natnram aliamm aenten-
tiarnra, que in rem judicatam transeunt.'*
Gain, in his Observat. 107, nnd Obs. 113, hotdt
exactly the same language.

The same rule obtains, for the same reasons,
in all sentences * i>n> salute animoe.' A sen^
tence is inconclusive (sa^'s Vulteius in his trea-
tise de Judiciis, lib. d, c. 13, s. 38,) ** ex quali*
tate causte ; putik, quod est matrimonialis, vel
alia qufecunque, in quH anims pericolum Terx
aatiir." Kcaccia, a very authoritative writef
on the eflfect of senteneesi in his book de Hen-
tentiu, gloss. 14, quest. S, D. 44, observes as a
general rule, '• sententia, in quft Tertitur ani-
moe perlculnm, nonquam transit in rem judi«
eatam." The sum of their maxims is gi\ en by
Oughton, tit. 205, which is taken almost lite-
rally from Consett, and by him extracted from
the books of practice. — " Although, generally,
witnesses are not admitted after publicBtion,
yet in a matrimonial cause they are, even with*
out oath, that they are come to the knowledge
of the parties alter publiontion. And, suppos-
ing that sentence has {wssed against the plain-
lifl^, that be has failed in proof of bis libel, and
the defendant is acquitted; yet the plaintiff
may eithir in the same cause, or in anotlier,
raise a new suit against the same person, not
only on a new or second contract, but on ihn
former, and produce proofs known or unknowa

8U

451]

16 GEORGE m.

Trial of the Duchess of Kingston,

[48

to him before : and be is not bonnd by the * ex-
eeptio rei judicatie,* or that tlie former sentence
has passed * in rem judicatam ;* because a sen-
tence ^iven in a matrimonial cause neter passes
* in rem judicatam,' and has many privilegfes.
IV hen the church is deceived in promulging
sentence against roatrilpony, the sentence may
be revoked by new proofs, and even by the same;
and tiie reason is, to eecheiv sin and danger to
the soul, if a wrong sentence should prevail."

< So far as it appears to us' is therefore no
idle form ef woras, but an express reservation
of a necessary power to alter the sentence
whenever it shall appear to the bishop that a
different rule of life is necessary * pro salute
animce rei.'

The mistake seem to have arisen from con-
■idecing the bishop as a court of civil judica-
ture, and liis sentence as pronounced upon the
trial of a civil right. In this perverse view,
those maxims are absurd, and those rules mere-
ly veiatjous, which, tried by the real nature
and end of a matrimonial suit, are founded in

fiety and zeal for the discipline of religion,
n all civil causes the maxim is universal, ' ex-
pedit reipublicc, ut finis aliquis sit litium.' In
proceeding * pro salute auimoc,' the reason of
the thing is altogether on the other side.

Even in the moment of stating these sen-
tences to be conclusive, one of the learned
counsel could not forbear to give your lord-
ships a lively representation of the frivolousness
of their proceedings and the vanity of their
decrees. The doctors have been at the paius
to write (says my learned friend) some wag-
gon-loads of volumes to prove, that these ma-
trimonial causes procee<l to no end, ond termi-
nate in nothing. All parties, all privies to the
suit, all who have interest in the matter of it,
may prevent its efloct by inteivention, by cita-
tion to hear the decree reversed by original libel.
The sketch was drawn with a great deal of hu-
mour, bordering upon ridicule : a vivacity na-
tural enough within the walls of their own
college. * Vetiis illud Catonis adinodum scituni
est ; qui mirari se aicbat, quod uon rideret Ha*
ruspcx, Uaruspicein cum vidisset.' Yet it
seemed rather astonishing, that so very judi-
cious an advocate should think this picture of
futility the best recommendation of the sen-
tence to your lordships as uu absolute conclu-
sion u|H)n all your proceedings. Here all the
H'orld shall be bound by that judgment, which
the Court, who pronounced it, hold for no judg-
ment, and will suffer to bind nobudy. But
such was the necessity of the argument, to
give it any effect, they were forced to assume,
that this sort of sentence is the judgment of a
civil judicature upon a civil subject, which is
not true ; and to give it effect, against others
than parties, they were forced to admit, that
•nch others may set it aside ; which is true,
tfnly because it is no such judgment.

^ In support of this loose proposition, they
cited from our own books several cases, in
which the temporal oonrts suffered themselves
to be coacludea by nidi senteuces.

If it were necessary or allowable at this da
to reason against so many authorities, 1 shoul
incline to think> that those cases proceedc
upon the mistake I mentioned before, naoielj
that tiie Ecclesiastical Court try and proDpnni
upon the civil right of marriage, or ever mes
to do so, except when authorised by writ of tl
king's courts. But for the purpose of the m
gument, I will suppose that they do ; even the
the effect of all the cases will amount to b
more than this. First, the ecclesiastical juris
diction has (exclusively) conusance of the rigl
of manisge. Secondly, the secular jnrisdi<
tion has conusance of the temporal interes
which are incident to marriage, and, in ordi
to decide upon them, must try the fact of mai
riage, as part of the question. Thirdly, bi
the judgment of the ecclesiastical jurisdicii<]
on the principal, viz. the right ot marriagi
wherever it occu(iv,is final upon the trial of th
incident. Fourthly, this conclusion extends I
all who were i>arties or privies, or who, in do
tion of law, have committed laches in not io
tervening or reclaiming. This I take to be tb
utmost extent of the cases cited.

The earliest case referred to was Corbett*!
Fitz. tit. Consultation, pi. 5. Sir Robert Coi^
bett had issue Roger by liis wife Matilds ; ii
whose life he married liCtitia, and had issm
Robert. Roger sued in the Court Christian li
avoid the second marriage, but was prohiUtcdi
for that court had no original jurisdictioi,
** Otherwise," says Catesby's Justice, ** if ray
father and mother were divorced, married is
others, had issue, and died, then I grant well
that I shall have my suit originally in tlit
Court Christian, because I cannot have ny
action in the temporal law, as heir, during tht
divorce ; and also the divorce Is a spiritual
ju-Jgment, which shall be reformed in the ipi*
ritual courts." So it was doubted, whether
** the brother of a monk, who abandoned hit
habit and vows, could, as heir, libel to try hil
hrother^s profession, and hold him to obedi-
ence; for he iiii^ht have his action by tb^
temporal law, and object hia profession." Bol
it was agreed, ** that if the monk hud been de*
raigned for false or unjust cause, the brother
might have citation to revoke his defaignmeat'
If this proves the effect which a sphitual seo*
tence u|)ou the principal matter, the right sf
marriage, or profession, has io cases whers
these come incidentally into qaestion, it sli0
confines the extent of that effect to those per-
sons who may rescind the principal sentence;
and proves the reason of it, namely, that thcj
are not wronged by the conclusion, becaiiM
they may always be heard against it.

The next case was Bunting and Lcppiiigwcll]
4 Co. 29| a, and Moor 169; which was tbM
found by special verdict. Tiiomas Twede mar
ried, defucto^ .Agnes Adinghall, but under tin
impediment of a pre-contract between her aoi
John Bunting. Bunting sued in the jCoar
Christian on this pre-contract, obtained sientenei
for celebration < in facie ecclesiee,' married her
and bad Lbsoe two lonsi Charles 'mud Robert

453]

fur Bigamy.

A:d. 1776.

[I&i

lUchsrd the father of John, grave laDds to Ro-
Wrt, for life only. Hubert, niistakiug liis title,
Mttled them on £inina his wife, and died.
Charles brooj^ht an ejectment, as heir to Rich-
ard, his i^randfather. It waa objected that
Twede had been no party to the fiuit in the
Coart Cbristian. Bat Twede mi}fht have in-
tfrrened, ur reclaimed, all hit* lite \^Xi^, So
night Lmma, if it could hare availed her to

Cife hiT husband illegitimate, which would
re destroyed her title. But Twede had aban-
doned his pretensions. The sentence was siib-
initted to by Affnes. The marriacfe was so-
leutiily rclfliralMl, and remained uninterrupted
ksnxi)i lile. The qiieNtiou was between two

Iinuvs. It recjuired little argument to sustain
liif h^itimary.

The next was Kenn's case, 7 Co. 68, Cro.
Jl 186. An English bill was brought in the
court of Wards, praying leave to traverse an
tSee, whereby I^lizaltf th was found the infant
Mrof Christopher Keon, and whereupon the
vtrilthip had been granted to Florence, the
flMlber of the infant. Christopher Kenn had
Barried Elizabeth Stowell, by whom he had
ime Martha, who left issue Elizabeth the
pitintift', hia heir at law, if the marriage had
Mood ; but in the Ist and Snd of Philip and
Nary, the court of Audience pronounced the
Mrriage void for want of age, and gave sen-
dee of divorce. Christopher Kenn nrarried
Sfaibeth Beclcwith, in the 5th of £lizal>eth.
She libelled him for jactitation before thecom-
■iaionere for eccletsiastical causes, alleging
Ui furmer marriage. Elizabeth Stowell in-
Ineoed for her interest. The first marriage
*ti a second time pronounced void, and sen-
ttioe followed * ad excquenda conjiigalia oh-
'a^oia.' After the death of Elizabeth Beck-
«illi, Christoplier married Florence, by whom
Ik bad the wanl. This matter was referred to
til the judges, who pronounced the sentence
cndiisivc, so long as it should remain in force.
Ai4 lord Coke relied upon Corbett's case, the
. tictriae of which has been explaineil before.
^' fte point had been twice tried with Elizabeth
^ell, the grandmother of the plaintiff, and
^lenteures remained open to litigation, but
Mkmhted to.

The case of Jones and Bow, Carth. 235, it
* hubeen observed before, was of exactly the
fiae sort. The plaintiff claimed under the
■oeof sir Robert Carr by Isabella Jones, be-
tviCB whom a sentence had obtained against
Ae pretence of marriage, which then stood un-
i%ated.

la Jessum and Collins, 2 Salk. 437, there

^ a sentence against the plaintiff in the Spi-

'itaal Court, at the suit of the defendant, on

Ihat very contract for which he brought his

aeuon on the caae, without disputing the sen-

B-

Tbe case of HatBeld and Hatfield waa also
; a judgneDt of your lordships in the
1795. No authority is more conclusive
thejadffineiit of aucb a court, when the
fiiatdtCM&N k well oBderatood: butnotbiog

is more unciTtain than the stale of a point
drawn from the piloted cases, where each party
takes care to state, at least, a probable case ;
and in the multitude of the reasons, good per-
haps in law, if they were true in fact, it isdiffi-
cult to divine what the House went upon. If
this judgment dependetl, as the counsel fur the
prisoner contended, upon the goodness of tlia
marriage, it carries the matter no further than
abundance of other cases; namely, that the
sentence of a Court Christian, while nobody
contests it, binds the right of marriage between
parties disputing elsewhere an incidental in-
terest under it. There was an attempt to
make it prove a collusive sentence available,
which I shall have occasion to examine here-
after.

In Cleeve and Bathurst, 2 Str. 960, and
Annaly 11, the sentence was against the very
plaintiff in the cause, and remained uncontro-
verted.

So Da Costa and Villa Real, 2 Str. 961, or
Mendez and Villa Real, Anualy 18, was a sen-
tence uncontroverted between the same parties*

The like observation occurs upon Mr. Her-
▼ey's case.

In Blackham's case, 1 Salk. 290, the sen-
tence was not held to be conclusive ; and as to
lord Holt's doctrine, that must suppose the
marriage put in issue between the same par-
ties ; for otherwise the sentence would not have
concluded; the court, which grants adminis-
tration, having no direct jurisdiction in matri-
mony.

In Millesent and Milleaent, cited by Dr. Lee
in lord Annaly 1 1, which I take to have been
an appeal from the Prerogative Court, a sen-
tence of the Consistory Court against a mar-
riage was, white it remaine<l unlitigated, a bar
to the woman, who had been party to that sen-
tence, from claiming administration as wife.

Upon ail these cases I shall repeat but one
observation ; namely, that they bound only
those who had been parties to the former sen-
tence, or who derived under such parties. If
they had extended to such as might have be-
come parties by intervention or citation, the
same principle would equally have borne them
out. The fifeneral peace aad happiness require,
that there should be some resort to hear and .
determine upon rights ; the same peace and
happiness require, that litigation should have
some end. The line seems to be fairly drawn,
where every claim to every right has had the
full opportunity of being heard. But,* among
all the cases cited or referred to, I believe
none is to be found, where a sentence has
been taken for conclusive against persons,
who neither had, nor could possibly have agi«
Uted it.

It is not enough therefore to establish the
proposition, that such sentences bind all who
nave or could have interposed, unless it had
been shewn that the king could have interposed
tor the public good, iu order to s<fe that no
fraud should be practised, which might tend to
defeat the execution of hia lawi or police: but

4W]

16 GEORGE m. Trial of the Duchess oflSngsion,

[49

it is not preteniled that ihe kiog can interpose
iu sncli causes.

It is not enough that a court of exclusive
.civil jurisdiction, pronouncing upon liie prin-
cipai ri(;lit, biudsall the derivative or incidental
Imerests. It should, be shewn, that such a
conn hi mis also to criminal conclusions : non-
Ibis I take to be impossible, because, on the
irery state' of the proposition, the court has no
eriniinal jurisdiction.

Jt has often been attempted in argument to
■hew, that their courts have no nwre than a
oetisorial jurisdiction in their proceedings ' pro
* saluie animie, et reformatione roorum ;' and
to infer from thence that tbeir judgments ought
Bot to bind in questions touching civil rights ;
as in Mendez and Villa Real in Annaly: but
our courts liave taken the fact to be otherwise,
and considered their sentence as a juilgment
upon the civil right, whicii is the reason why
it binds all incidental interests in other courts
of civil jurisdiction. Tlie true reason why
such judgments have no effect in a criminal
court, seems to be this : that there is nothing
in common between the jurisdictwns, so that
they csn never clash. A jndgment in a civil
suit will hind to all Its consequences, although
every fact, upon which it proceeded, should be
evidently false ; and though a criminal court
should have found a crime upon an opposite
state of the case. An actioo and an indictment
for a trespass may have contrary issues, and
yet both must stand: so it wonid be if the
crime were assigned in the very falshoods by
which the civil court was deceived; as In in-
dictments for perjury or forgery. A judgment
unon a deed, after verdict on non ett ^factum
pleaded, is no Imr to an indictment for forging
or publishing, or swearing to the deed . The cane
would be the ssme iu respect to a will of lands
establisheil by verdict, or to a will of personality
idler probate.

It was in this last instance they attempted to
shew, that the authority of the Ecclesiastical
Court had been interposed between pnlilic jus-
tice and the crime of forgery. For this pur-
pose they have cited the case of the King and
Vincent, 1 8tr. 481. it is very short : « in-
dictment for forging a will relating to personal
estate ; and on the trial the forgery was proved ;
but the defendant producing a probate, that
was held conclusive evidence in support of the
will.'* Now the support of the will was not in
question. It was proved in common form,
which is not binding, even in the Spiritual
Court. iRo. Rep. 21. More particulars of this
case may probably be known to some of your
lordships ; but I cannot find any. Stated thus,,
it certainly requires a great deal of considera-
tion, before it be admitted as law. Here the
Juestion was, not wbetlier the sentence shall
ave credit in respect cf the understanding
which the spiritual jiidffes have in the rules and
0nir«e of their own law, but whether a probate,
Ipamed of course, on the oatli of the very
party ehaigird with the forgery, shsll be a full
f g^d 'pofpctaiive bar !• the |>roMciilioB. This

is too monstrbuN to be left upon the anthori
of a short and single case, without coiidesceii
ing to explain what consistency with publ
justice, wliat respect to common sense, will s
low the crime of forgery or peijiiry to be d
feuded by the allesatioa of that very frai
which the indictment meant to punish ; ■
stating any trial or judgment upon it, but mer
ly that it had been practise<l. if the pretendi
executor had repelled the olijection of forger
even in that court, it would have borne aon
countenance at least; but the fraud pass
without examination, where, in the nature
the proceeding, none could be had.

The other case, in 1 Str. 703, of the &h
and Rhodes, proves nothing, for it was mere
a question of direction, whether the cou
wouhl proceed to try the forgery of an instr
meat, while the property to be affected by
remained tub judice.

This is a matter of great consequence
public justii^e ; at the same time, it is the m
of case which most happen frequently. Tl
fraud was commonly practised in the *late w
upon the saik>rs ; and, if this rule had existc
could never have been nunisbed : but it w
frequently punished ; and although, wiiere i
point of law arose, it is difficult to recover cas
at the Old- Bailey or on circuits ; yet an a
cidental publication of cases in the Old-Bailc
without any apparent selectiou, has produe
three or four msiances. One Stirling w
convicted and hanged for forging a will ; an
so little were either prosecutor or court a]
prised of this notion of law, the probate mat
part of the evidence against him. He In
registered it (as it was necessary) in the Sout
sea-boase. I am not anxious to state the
cases with more particularity ; because I eai
not bring myselt to imagine it will he ente
tained aa a serious opinion, that the mere pe
pet ration of a crime may be pleaded in bar i
a prosecution for it. This is certainly not k
the interest of justice, nor for the bonoiir'i
the Spiritual Court; because it would tak
away from that jurisdiction one guanl agaiM
falshood and fraud, of which every other i
imssessed.

Thus much concerning the general propos
tion, that sentences in the ecclesiastical couHi
upon civil rights within their conusance, haff
conclusive force upon public prosecutions k
crimes; although it be confessed withal, thi
the public has no means to intervene or revie
those sentences, and although the civil ttki
of such sentences is not touched by the eve
of such public prosecutions. If this grosi
fails, tliere is an end of the present rootioi
het tliere is another view, in which it has bei
urged upon your lordships, which seems totoi
out more decisively sgainst it.

Whatever may be t^aid in the instances

forgery, perjury, and other frauds upon tl

spiritual court, where the criminal court hm

seem to impeach the foundation of their ssi

tences, without assuming any jurisdifllioD

the BMtter of them ; ip this case it is {bm

i »

jr m

■M>'«l ■ifcift. Ibal the criminBl court ii nol
laHjr c<HDfi«»iil (0 deuile ii|Hta the xliule niat-
Urof ilaeiadii.'liDeni ; paniculirly on liotli llie

■be|irM«ier, itilarin«l )iniiT loriliilii|i», lliil ihii
^tmtr was liiriiier'y |>uni«lti-J bjrtlie canon law,
«mI id the Eoclesiatlical Court; Miit lusivlett,
UmI trail ulaiTi II k iI>f |iiin<klin]Mit of il limn tlie
•ocUaMtUcal lo ilie lein|i(>raJ jurisilii.'ljaii nliouM
■M (Hpjuilice any 'Irlcncei wliicli ibc |jurtj>
■ Mi^bt 'i"c *vt U|l 111 lIlP firvr cuurl.

la onlvr IB nnkp iliut nbiEttaliun bear, lome
(WOofBlHuIil bate tteraiidilFJ, that ihiaseDlmce
w«iihl l>Mv« liartnl tuch u xtiil, howerer pro-
naieil, ' rxerpiiiMie rci jtidicatc' Then, «up-
ptaMtff ihi> JurisdicrHiD nil betler tban ounciir-
trot, ihrs oiart minllt lia*e lieen barrtd, pari
raimK. But your liinUltipt faa>« already bail
Ilx: iroiilili: nf lieariMt; it e<itabli«hc(t, bti( loo
niucli ■! Ieni[(li, Iriim Uinr book), tliat no such
01,-^iDii wuuld He 111 Ihrir hiw.

Tli« unii- ihiag is nu 1*M true in our Uw,
e Ux- C<i«rt

<i»acc ol ihr riiglil ut r

Thus

Id tlur I

tWtl»»n

the Comnian Pleas, l>v writing
Kip, L-Hi) »t:ll try lite lanl'iilima ul
UP, « itenunc« i» nu p\ea. Tliia wb*
lif t-AJw ot' Uoliins uid Crulcliley,
18,11?. IV ik^mindaBt CDimird as
of IbF vDiluumi'iii ul' HobioE : the i«ntntx
ylvadp-l, lliKl ihe waa nol accuupled tu KidiinH
M tawlul matrinioiiy. i'lieid-inamlant replied,
Aat on ilie ISth nf Pebrairy ITM, air William
WaUelv lilielled her iia his wife, in the bishop's
taan iiT LitcbHihI. lot adultery with Rubins ;
(kal alw |ib«iled a RiarHa)^e with Robins ;
tbu lite niiitp Wat remoted into ibe Arcliei ;
ihal Riibiosdied ; aiiil that allei'wardaaentence
yi-il far Ibe inarriaKe with Robins, which
lb«« rcoiainnl in force. The teoftnts demur-
rad: and bad jiiil|fn)enl. The deiiiandaol
OMd many of tl>« case* your lurdaliips have
WW beanl. loprov*, thai asetilence.by a cnurl
>>fdii«clJaTiMlii7iiDn,uutj[bUo conclude anoiher,
whacb hM but meidetilal mnuiance of Ihe
««ni>» inatlw. Hut theae irere nol Ihouglit auf-
iTuid anoiber Irial of the wme mar-
■ court, which, by wriiinn to lhi>
ig^t weU decide ijpaii llie lawf'ulnesi
n oinar, itial Ibc tantence would ant
Ill-led in llif trial befnre the bishop,
le teryalatuGe, on which the indict-
cineil, praiei thesame Ihin^. Il ex-
(.-Bcea where ibe foriner roarriage h
or itrdariil toid by aeutence, or was
tier a^ of conseiit; all which
■uuld olhccKiie bnte beeu liiable under an iu-
fawtcDl for lelony-

l» m-drr to profe, ihMany sentence in the Ec-
«laaaiical Court would bar an indiclmcnl upon
>M aamF mailer, the case ot Boyle and Buyte
••■ ntod. )l it re|innmt in 3 Slnd. 164, and
^•Conib^rbaicb 7t. la ibaloa^eaprnhibltinu
kwvniail to alop the trial, in the Ei'cleai-
Cauti, of a marriage there claimed by a
HI a auit ul' jaoiitaiioo ;
/

ficmit u

A. D. 1776. [458

which marriage had been found bwl on an in-
diciment liir uolygamy, for which the man wii
coiiiicted and hutni in the hand. The iwaaon
ai>ai|nied. here, liir ibis judgtneot was, for fear
Ibe spirilual ceurt abuuld not take noLiee of
Ihejiidtfrneotpronuuncediii the temporal court.
Bill (bis would have been extremely irr^ular ;
partieuUrly if hy the courae of the ipiritual
rourt BHch a jud^eni would have been cod-
cluiive. Prohibilioii iierer goe* npon an ap-
prehension, thai the spiritual court will do
wroii|r'; but where their rulei of trial are con-
trary IB liie coalman law, a« in prescription, or
requiring two wilnesaea to a releaie ; or when
Ihey excied their jurisdictinu, by holding plea
of temporal tnatlera, as debts, freehold, or lem-
poral olfences. The rcaann for granting this
probibliion was. because the Court Chriitian
could not like any conusance of a malter ad. .'
jiid|>edTnlhe temporalcourl ; which thereupon
became tempDral. Ho in the case of Webb anil
Conk, Cfo. jamei, £35, 633, prohihiiioo went
to tlieCourl Christian aiNurwiirhrarenlertajn-
int; a libel for dehinatimi, in sayiuK', that one
had a hattard, who wsk adjodi^ed (he putatifff
father : " for lliiil jiidirmeut hein^ under the
authority of the aiatute law, shall not be im-
peached in Ibe spiniiial court, or elsewhere;
and all are canchiiled to say the contrary."
Upon the aulhiiriiy ul this case, the ^kkm |ioiat
wai ruled again in Thornion and Pickering,
3 Keb. 300. The Eccleiiaiaical Court has n« *t

■lely belbre that of Boyle and Boyle, pmbibU
lion went to stop ttsuil Iberr tbr writing a libel ;
liecauie an indictment wdl lie fur it. In Ssrla
and VVilhims, Hob. 388. thia matter is fully
treated. Th* ordinary has n0|H)wer, CTeuover
clerfrymen, in a crime or offence uiuclring iha
crown. Purgation itself wai by penniaaioB,
and ciiuld not be ail ministered, il tlie lemportl
court delivered ' ahsijiie piirffatione faciendl ;*
nor belwern theconiictiou-and aentence; nor
beture It. In all these cases pmhibiiion would
lie. And iu cTery other ewe, if utter trial of ■
felon they (irove or dispntre any Ihuig agaiust
a verdict, priihihilion lies, tin in Hig^ron and
(.'oppiiigei-, air William Jones, S30, probibiiioa
went In stop a libel tor calling one • aodomiie,
" For as they cannot find the principal uSenee,
it nut bein^ saved lo tb^m by the sistula, they
shall not bold plea of the defamatioD. Ana,
where any tiling! determinable by the Bcole-
siaalical Court is made felony, or ireason, and
the power of the Eccletiastical Court is not
Kaied toil, there Ihey shall not meddle wilh
the offence, or tile defamation, which arise*
out of il." The true reason iberefore, why
they were prohibited in the principal case, was,
because the plea depeodingbefore them was out
of their conusance.

Another case wa« cileil, where pmhibiiion
went to the Cooaisinrisl Court of Exeter, afler
acquittal upm an imltctment fur polygamy i

1

It been I

:o find it

It I II

Mure jierTerse iQleienoes w«re never e«
lorled tram aaj cuw, thkik ftOA Uwn.

«5DJ

16 GEORGE III.

T'ial nftke Ducheit o/Khgfton

[4*

It nf Oyer ami Terminer is lo delerniine

' wilhout liparlo^, Ibr tliU special reason, ilial it

, 'vill beHoal. A caaci of direct, <;om|ileIe, aod

f cxcluilve jurinliolioii, ia to be bouoil anO go-

»».Tef Bed by one ctf do Juriidiction, eilber direct

ri or indirect, on ibe matter. A court wliicli de-

• oDce Tor eter, ii to lie bound by one i* hicli

_ iicTer deciites. The Ecnience remains ogjeti

(''for fnrlber eiaminalion ; let il iberelbre be

Jiiplt^ wilbaut cvaminalioD, in order Ibat il

lay never be examined.

Bat, tu conreM llie truth, all ivliicb I bare

hilliertg (aid seems to bare been imnecesBary.

Tliis might bate been pertinent ar^metit, il'

(here bad really been a sentence lo combat:

but there is none. Il has been virtually, if not

exjiresaly admilled, lliat, for the ]iur|M)ge of

drriilini; u|ion the preeent motion, ytmrlord-

nhipsinusiukeilfbr panted, that the aenlence

ii culliiiiTe and friuduleni in every (iew, sod

lo cieiT degree, which ininKitialion citn repre-

•eut: fur voiirlflrdsbips will nnl put iia, in ihii

•U)[e af the businen, in take sejnrale issiiea

npuD erery auifgeftidii which maylie made for

llie primner. In tnilh.brr counsel hare argued

il 80 ; etprfSily conlendinir, ihet a colhinire

eenlence xhall bind tlie judgment of the

Unule.

Hut nhal kind of caie has been made or at-
tempted ? What aulliority bai betrn cited, IJiut
a cultusite sentence shall prrjmllce 'itliers, lliln
the parlies to il ? In every book 1 have seen,
il is Irealed oa a mere nullity. The only dif-
ference bftween no senlcace, and • collutite
one, ii, that in the lirtt case, ynu plaad ' nul
liel record,' generally ; in the last you plead,
that il was Mtaiueil by coiin ; consequently il
is watte paper. ]f the Caiirl was inlDrmeil of
the corin, il would commit the parlien lur ihe
contempt, and cancel the record. This could
only he dune upon the idea of tl)e whole pro-
oeedinfr bein^ a nullity.

In the 44 E. 3, ii, b. in assize of norel dis-
seiain, by a ilowresi, Ibe teniot admitted her
title lo dower ; hul disputed her assize, because
she had been endoHcd by one, who abated u|>on
his pnsieasion by covin with her. She argue'),
■hat the abator gained a fee-simpie, whereby
be might lawfully endow her; thai recovery
of dower o^iost an alialor is sufficient, and
thai endowment ' in pals,' to one who hna right,
is equal to recovery. Tlie tenant replied, that
auch endowment was but disseisin ; therefare
bJB entry was congeable; and that the recovory
tvould have been in Ihe same plight. All the
judges hehl clearly, that " if one has artioh lo
certain lands, and by his assent and covin Ihe
tenant is ousted, and be, who has the action,
bringi it BgainBlthe disseisor, be, who in ousted,
shall have assize ; and Ihe possession of him,
who recovered, shall be adjudged by abatement,
and not by recovery ; because be was a dis-
seisor. '£t hoc adjudicabalur coram KniveL'"
.The same point is laid down in many books;
and in 3 Co. 78, it is taken as a general rule,
" tliat the commun law so abhors fraud and
cotin, tbat all acU, ai well judicial as others,

and which of themseltes are just and ItvrfnlgK
still, being mixed with fraud and deeeii, are H
judgment of law tortious and illegal."
il takes away Ibe priiilrge of coverlurt .^^
iofancy ; for the act is merely void. InlH
case in Coke, Ibe hue (a judicial acl) was bel
for none, liy reason of ibe covin, tio Fan- an
Chadwick were both hangeil for burglar]
though they etilered hy an ' hnbei'e facins poa
sesiioneni ;'. beciuise it issued upnn a fraudai
lent judgment. This tvBs thought lu heighlei
the offence. ••

The principle of the rule applies equally tl
tbejudgmenlaof the Ecclesiastical Court; an4
so Ihe rule was applied in Dyer 339, where i
revocation of lellers of admini
void for covin. Thus too, in Garraii an
lioach, 1 Ves. I.i7. Lord llardwiek sayi (
sentences in the Ecclesiastical Court, that ca|a
lusion will overturn \h

fl would be idle a
cases on this head, whii^h indexes would fub
nisb. The books are full of them, from l|i|
annals of Edward ihr Sil lo ilie Rei>orta uf ■
James Biirron, Indeed there never was ■ pa
riml of lime, in which Ibit maxim was so ooni
liiinally in the mouth of the Court, as Ihe IbM
Bright and Eynon, and abundance of caia
more might be ciled lo prove Ibis. The Cow
seems to have thongbl il Ihe principal and mM
capital pari of its duty, the ' nobile otGciufl
'Judicis,' to suppreu and exlinguish evcir'
species of fraud.

9Iy lords, Ihe language of the eiviliana an
canonists is exaclly the same, Scaccia, in bi.
book de Sentenli^ Gloss. 14, Quest. 13, atal«i
ibis position, ■■ ex vulgst^ regull, rem inui
alios actam alHs non nncere." Upon thi* B
makM many hiniialious ; upon all of whid
lie adds, amongiil olhers, Ihis sublimilalina|

quando senlentia essel lata per colluaioDein ;

fraus

'I dohi.s

alterius prsjudici
per collusionem, habelur pro nonsenlenlia; ■
aliis non nocet ; quarovis, sublalA cojliwioai
Docerei." The same thing is laid dowa b
Covarruviaa, in bis Practical Questions, «a|
15, n. 2. He qiiolca this text of the D^a
" Si bwredilalis judex contra hnredeiD proatu
ciaverit non agenlem causam, vel colluiiM
agentem, nihil hoc noceliil legatariit," 1
Uerahlus de rejudicalA, lib. 1, e-ap. S, n. 1, It
same rule is given upon the same autboritjr.

Nay, their couris ivill receive an alleKMial
fl^inst a judgment at common law, thai jl
was by cuvin ; and righlly loo ; for il ia a duI
Illy ; and Ihe aulborily of Ihe Court, in whM~
fraud is practised, is never in question. Ii
Lloyd and jVIaddox, Monr 017. One toed ■
IheCourt Christian for a legacy. TbeeKecuIsi
pleaded recovery in debt, which exhausted a^
sets. The legatee replied, that the recnren
was by covin. This allegation was admitted^
and the King's-beuch refused to award prtriiti
billon. Here both courts agreed, Ihal to allf^fli
a fraudulent Judgment was lo allege nolhin^f
aad the inferior jurisdiclioa was (XfreMly pei<

461]

for Bigamy.

A. D. 1776.

[461

N

mitted to try this sort of nullily in the judg-
Beat of the superior.

Tliere is a f^i^eat abundance of casefl more,
whicb I shall ha?e occasion to cite to your
Ionl«hip«, if the actual fraud of the present sen-
tence should ever be disputed ; cases, in which
much weaker grounds of imputation, thsn
those which occur here, have been thought
lafficient to avoid a judgment.

But, my lords, what arguments have been
Med on the other side upon this part of the
esse ?

First, it has been insinuated, that certain
Hslutes, made against covin, account for the
naoy judgments to be found in our books ; and
pore, that, without such statutes, they could
not have obtained. But many of the cases
Wits before the statutes referred to. The
principle, avowed by the judges, is independent
of ihem. They ail provide either additional
noctions against fraud, or new precautions
•CiiDSt the opportunity of practising it. And
it would be a very mischievous construction, if
a statute against a particular fraud were to
pnitect every other.

Secondly, the fraudulent sentence must be
KDt back to the Court where the fraud was
iraetised, in order to be corrected. Why soP
if the thing alleged against a sentence were
ffror, mis-judging either the law or the fact, it
BMt bo reversed m the same jurisdiction, ori-
fisal, or appellate. But the Court, in which
ibe sentence is uleadeil, must determine on the
nality and application of that plea, just as it
voald on auy other matter pleaded. Fraud is
a fact. The conclusion is, that it puts a total
«4 to the cause. The Court, in which such
OBse depends, roust be as competent and ner-
fecta judge of that fact, as tlie Court in which
&e fraud was perpetrated. I say as competent
ami perfect; because the Court, where the
iraud has been practised, which has overlooked
neh circumstances as appear on the v^ty face
•f these proceeilings, docs not seem to me the
Krj place to which one would send a question
•f collusion to be tried. All the authorities
Rfcmed to before, and the numerous instances
if icplying fraud to pleas of judgments by
Mber courts, on which it was practised, con-
tradiet this notion, fiut cases are cited on the
ilher ade.. Kcnn's cuse, it was said, proves,
spn the state of it, that the sentence was
nadolent. The bill in the ccturt of Wards
staled, that the sentence was false, and with a
deal of aggravation. But whoever referred to
■a English bill for the true state of any case ?
Tbeqocstion, referred to the judges, says no-
thing of the collusion. The case of Morris and
Wcfaber, in Moor 225, was also cited to prove,
that collusion apparent in an ecclesiastical sen-
ICDce did not binder it from concluding in a
Caart of common law. A man divorced * prop-
kr impotentiam,' married another woman, and
had coihlreo. The last circumstance, it was
laid, disfiroved the cause of the divorce ; and
" 're tlie judgment was apparenily collu-
Bui lliAi dr^umslaaca did not even

r

prove t|ie judgment false : for one may be
* habilis quoad banc* The law presumes the
children of a marriage legitimate : but that
does not prove the fact of generation to any
other purpose. If the ground of the sentence
was false, it would not follow that it was collu-
sive. Collusion was not even alleged in the
case ; and consequently maftes no part of the
judgment. In the seme manner they referred
to the appellant's printed case, in this House,
in Hatfield and Hatfield, for an averment, that
the sentence was fraudulent. But tliere, as it
happens, the slate of the case disproves the
collusion : for Porter, the defendant in the
Ecclesiastical Court, was in the appellant's
•power. They cited also the case of Prudham
and Phillips, from a most inaccurate note in
the margin of Strange, 961 ; who certainly
knew nothing of the case he referred to. I'ho
case in tnith was this : Prudlwim broughi as-
sumpsit against Constantia Phillips. She gave
evidence of her marriage with Miiilman.
Prudham produced a sentence of the Ecclesi-
astical Court annulling that marriage, b(>cause
she was already married to Delafield, wJjo was
then alive. She said, that sentence was frau-
dulent. But the Court, admkting that the
objection would have buen good in the mouth
of a stranger, would not suffer her to allege
fraud in herself, for her own avail. The learned
doctors also cited a case of a lady Mayo and a
Mr. Brown, in the Prerogative Court. There,
a sentence in a matrimonial cause being plead-
ed, the adverse party alleged, that it had been
obtained by collusion. One learned gentleman
said the allegation was repelled ; the other,
that it was not admitted. I am informed the
last is nearest to accurate ; for nothing was
done in that matter. The cause is still de-
pending. The first argnment promised all that
length of erudition, which your lordships were
favoured with yesterday : in view to which the
judge asked, whether they had not lielter agi-
tate the question of fraud where it was com-
mitted; an issue more natural for the judge to
wish, than proper for the Conrt to award.
The most loose and unconsidered notion, es-
caping in any manner from that able and ex-
cellent judge, should be received with respect ;
and certainly will. But it is unfair to him to
call this his judgment. If the quesiinn were
my own, with the choice of my court, I should
refer it to his decision.

Thirdly, among other reasons against hold*
ing plea of the collusion before your lordships,
they insisted, that it was not worth while ;
their sentences are so open to repeal at the suit
of any body, that whoever finds tliem o1>j(H:ted,
has nothing to complain of hut his own remiss-
ness. Their proceedings are so frivolous and
ineffectual, their judgments so inconclusive aud
harmless, that nullity, however established,
makes no material difference in them.

Such were their particular arguments. In
a more general way they pressed upon your
lordships, with much earnestness, the consi-
deration of the unhappy case, to whicii they

463]

16 GEORGE III. Trial of the Duchess of Kingston, [404

wid we wonld drif e the prisoner. The sentence
has deprived her of all conjugfal chums upon Mr.
Hervey ; and we acknowledge it to be conclu-
sive upon her, while we insist that it is merely
▼old against all the rest of the world. 8he is,
therefore aooording to us, a wife, only for the
purpose of being punished as a felon. This
strange apology was not insinuated in mitiga-
tion of the punishment, or to the compasaion
of your lordships ; but directly and confidently
addressed to your justice. Do not proceed to
try the crime, because the purpose of com-
mitting it is totally frustrated ; and many
other inconveniences have ensued. In other
words, the crime has been detected. These dis-
appoinlments, these inconvenient consequences
of guilt, arc the bars which God, and the order
of nature, have set against it : hut they have
sot been found sufficient. It demands the in-
ler|iosition of public authority, whh severer
checks, to restrain it. Why is she thus ham-
pered with the sentence she fabricated? Be-
cause she fabricated it; because justice will
not permit her to allege her own fraud, for
her own behoof, nor hear her complain of a
wrong done by herself.

In short, mv lords, the motion is wholly in-
admissible. It is inconsistent with all order
and method of trial for us to debate imaginary
topics of defence, before hearing the charge,
and for tlie court to resolve abstract questions
upon hypothetical grounds. Is a sentence nro-
nouoccHil between two certain persons admissi-
ble evidence against others ? Is this species of
sentence so ? Is either admissible against the
king^^n any public prosecution— in this par-
ticular sort of prosecution? — Is such evidence
probable only, or cooclufetive— against the parties
to it— -against strangers — against the king —
and in what cases? What, if it were obtained
by collusion? What, if by her collusion ? Will
it serve her? May she oflTer it safely? How
much will it |Nt)ve sgainst her? What evi-
dence will do to prove the collusion ? — There is
DO end of such questions. At the same time, I
was not soiiciiuus to prevent any part of the
argument. Were it possible for your lordships
to stup this prosecution here, I have no desire
to wound the mind of any person unnecessarily,
or if so painful a duty may l>e dis|»ensed witii.
But I have rather woiidere<l to hear such \in\iea
as these thus farencourai^'cd, or even entertain-
ed, on the part of the prisoner, with coiifiJence
enough to make it worth her while to avow,
in this stage of the business, that she had ra*
ther have every thing presumed against her,
than hear any tfiing pro«ed ; and to disclose to
your lonlships, not an anxiety to clear ner in-
jured innocence, but a dread of the enquiry :
a wish to submit, in silence, to the charge.
Was this her solicitude to bring the question
here? Of what avail would it In* to any body,
in any condition, to appear in any court, and
defend Ihns? But, in such a court, before so
venerable an audience, to bear nothing pleaded
against a charge (»f infamy, but a frivoioot
objactiiMi to autoriag upon tne coqiiiry |— no-

les8 topics atronger, more pertinent, and poml*
ed could have been urgeo, I am execcaiBgly
sorry, upon every account, that the tioM of
your lordships has been thus taken up, and
that we did not go directly into the examine
tion of the matter before you.

Mr. Solicitor Generid Wedderbum (allerr.
wards successively lord chief justice of the
Common Pleas, and lord chancellor) :

Mv lords ; — There are two quest iont at pr^
sent before your lordships : the one turns mn
the effect of a sentence obtained fnim tho Ec-
clesiastical Court in a caae of jactitation ef
marriage, which the counsel for the priantr
have maintaineil to be a conclunve bar Ki the
inquiry now instituted in a court of crimiorf
justice : the other is. whether that argumeal
ought to be admitted in this period of the pro»
ceeding.

My duty requires me, in the first plaee, ta
submit to your loidKhips some objections It
admitting that sentence m anticipation of tba
charge, after a plea of Not Guilty to the is*
dictment.

The plea, which is the defence upon the rs-
conl, denies the charge; but the argomnl
contends, that the change oui^ht neither to k$
stated or proved. To proceed first to coosiikr
the merits of a defence without a charge dla*
blisbed either by proof or admission of lbs
party, is at least a very great novelty in a cri*
minal proceeding, ani a very wide deviatita
from the ancient course of trials ; and it ii
'a presumption of some weight, that a moda
of trial, which has prevailed for ages, is Kit
founded in folly nor injustice

In the regular and onlinary course, a pri'
soner who has any special matter to allege
which ought to bar the enquiry into the eriintr
must state it in the form of a plea of tbe n*
dictment. U|>on the pira of the party every
court of criminal jurisdiction must form a jfl'
dicial determination : a pardon, a former ae«
quittal for the same charge, are defences which
preclude an enquiry into the crime ; hot llK
party can only insist upon such defences by
pleading them, the court can only take cogaii'
ance of them n hen pleaded.

The present proceeiling would oblige tbi
court to try the vahJiiy of the charge, by flitt
hearing the defence ; in the course of that
hearing, not only the state of the charge i*
supposed, but a reply to the defence by ne0
facts is also taken by sup|>osition ; and, thvAi
such a metlioil be permitted, your lordsfaifi
would be placed in a situation yery differcn
from the exercise of judicial authority: fef'
courts of justice are not instituted to deddt *
diFpuiation upon a thesis of law ; their pro*
viuce is to decide upon real fact, not upon f^
neral or hypothetical propositions; nor fl^f
they pronounce the law, till the facta, fllli
w hence that law arises, are first ntablialwd.

Tilt- counsel for the priiODer ara Mif^
state their argument ilm: laaaaw aa« *

4'

4
*

i

fir Bigamy.

1 inslitoted lo ioiiirach thkt

suit, > sentence jirotioiiiiced

ifae Diarriagf: ; Eiip|>i)se ihkt suit and

loe Ifi lime Iteeo framliilent, jel eien

a sentence DU|{lil la be coiicluilire, anil to

ikr all iuuirj' hito the crime of ■ secunil mar-

riVB. Ttie only aoiKer, whlcli 1 suLiniLt lo

jfMr lordship} Bucb an sr^umeul at present

•Vmsod*, is. tlitt a court of justice caanol lup-

[•■m the fad uf the marriaKc, Dor ihe suit to

ii,->eacb tbe leiralitjr of il ; on suppositiou can

■J runoeil, w heiljor tlie proceeilini; iii that suit

.■■ Iraii-lulrnl or wu fair, Ihe senteDce real or

iiTirmlite ; the partiei inust ai^rce iijion the

. It bf^lbre the court can be asked Iv declile

.'-' lai* ; il' Ihey do nut admit Ihe facts ujhiii

rro'rd, il remains for bulh parties la pruie

tthu iliey >l>iiik nialerial ; then, ami uot Ull

■batt, U IS tbe duty ul' the court to jirouuuace

Ibrlaw.

Na )»r«ce>lenl has been quoted Id shrvv, that
k aioular urucerding' was ever adtnitted lu a
taoTt of cnnfinal juTiidiction. One ca»e only
«aa raimtjr alluitnl lo, by the leained gentle-
■iiQ who f poke finil yealerday. The eaie of
Jonta anil B>n*, cited Irani Carlliew ; where
tfae reiiorier ■■>«, that, " hy way of antiaijia-
ijmt III ihe rii-lvoce Ihat Ihe plainlilT vrus aJwut
t» gi*r. t\K delenilBni priMluceU a tcntence of
the Etcte«i«Biic»l Court in a cause ol' jaclila-
liuD; a debate aro^e upiin Ihe eiTecl of thai
•estPDCi;, and the court beiiij; of opinion Ihat
Ibeaentrnce waacaneluaive, the cause beliveeo
tbe pafUea rudedi"

That cauae was an action nf ejectment to
bj tbe title to an esliiie, A proueeding by
tjcctinent ii well hnomi lo he entirely tii'Iiti-
•Bk In a ami Tuunded u|ian a lei^'al ficlinn
to try a ijuestiDn of riuhl, where the jud|[nienl
a DM euiictusife on either party, there may he
■a aiisclii«f in pressing; forward 10 Ihe Cunclu-
■M williout an exact atteuitnn lo fornla. The
tttm dierelore does not prove, that In a citil
Mtion, wbvre jud);meni it jfiven upon Ihe
■era right, aucb prnceedinff could hare been
Atwfd : but a criiuinal proceeding requires
iUII tain precision than a citil tuil, and a-de-
rislian from tlie I'urmx would lery seldom he
^tourable to the accused, If the prisoner is
BM cuiiBiieil to ihe dt^fence jileaded, neither
ibe proacculur be confined to the luailer
' charge ; Ihe jndtje and the Jury would
illy encroach upon eacli iiiher : nor could
din){eruus source of error and
to permit a loined eousirleia-
kofUw and of fact, of bypolhesis and uf ar-
lenl. to be inlrudiiced into criminal trials,
mily plei tu the present indictment ta, nut
audtv: Ibe argument your lordships hare
Aeari) ■iip|<u«es, iliat such a plea ought not to
Irtte been put in j iliil there is a iiinre jirudent
ud cautious method of defeucc which you are
fcaired to hear upon suppoiilians, wiihoul the
form or Mibstaiice <il a plel.

Tb« counsel for the prosecution arelioond lo
^iWi tbis exptriiiient. It wonM ill become
£a, a^ng in iba cbaractar of « public ac-
VOL. XX.

A. D. n7«. [4C5

GUser, to advance any doctrine which they did
nol believe lo he founded in law, or to aupiirtat
an objection to a proceeding which, as i( ia
norel, cannot pass into a precedent witbont
frrtat danger and mischief. Should that ob-
jection prove, that the arKumenI, which in tbis
Blage of the business the counEel in defenca
have been permilled lo urge, is inadmisrible,
your lordships will however have no resaan tik
regret Ihe deby it has occasioned, nor (o deeta
that time mis-spenl, which bas been employed
in the present enquiry, since tbe object ot it,
Ihoiigh frulllesi. has been directed lo the relielf
nf a parly accused. Supposing Iben the de-
bate upon the effect of Ihe sentence urged ia
bar of the trial lo be proper at this time, I shall
proceed to thr consideration of the argument.
— The proposition advanced is this ; that in an
indictment upon (he statute of James 1, foe
marrying a second husband, living the Grst, a
sentence of an eccTesisslical court, in a cause
uf JHi'iitaiioa of marriage, pronouncing, that It
does not as yet appear lo that cuuvl that tbera
hath been a nrsl marriage, is a conclusire evi-
dence Ihat no tuch marriage ever was had.

In order tu make out Ihis prnpusilion, tha
counsel contend, first, that it ia an universal
rule, Ihat ihe decree* of courts, having compe-
teoi juriadictiuu, bind all persuus, anil concluda
in all eases, in any mauoer Inuching the mailer
decided; secondly, they maintain, ihat Iha
senlence of the Ucclesiastical Court In quaa-
liou is a decision : Ihey urge in the third place,
that tbe rule first laid down admlls of no ex-
ceptions, but applies wiili more force to cri-
minal, than to civil cases. In the last ptaca
ihey insist, that supposing Ibis sentence to ba
the effect of fraud, collusion, and agreement
between the parlies to tire supposed suit in tba
spiritual court, il is notnitbstanding conclusira
upon ttit other courts, and the fraud can only
he examined in Ibut court whose justice haa
been thus ensnared.*

" Mr. Chilly (Trenii'e on the Law relalira
lo Apprentices, Ac. chap. 4, p. 105), in treating
uf tbe operation of an order by four justices to
discharge an apprentice, says, " No case ha*
occurred in which the settleiueDl has depended
npnn Ihe validity of such an order of discharge.
The power of a quarter seMioni over it when
liy ing a qiieillnn of settlement is therefore un-
deciiled. Bui il may perbaps he concluded
from anilngy to tbe proceedings of ecdesiav
liual [4 Co. 29. Ciitb. SUS.j and admiralty
courts [3 Bat. end Vut. 499, 5 East tSS] ibat
being a direct judgment upon Ihe fact by a
i-niirt not only of competent bul exclusive ju-
risdiction, it IS conclusive of the question be-
tween contending parishes although they are
not immediately parties tu tbe senietice, unless
il hfti been obuioed by fraud fAniM. T63) or
appears altogether told, [Sir T. Rr.vMi, 40S.
8 Tertn. Hep. QSa. Case of the Plud Oven
ih. 276, D, B. 1 RubiasoQ's Ailm. Rc^. ISS-l

VI67]

16 GE0K6E III.

Trial of the Duchess of Kingston,

pnipnsitions ; and, were f only engaged in a
dis|iiitufioii M'itli tlie learned cfentlemen upon a
nyeve tiiesis in law, I should be inclined hy a
deiii<il to insist upon better {irirafs tliao have
been oflered jn siipiiort of ihtse propositions. I
Teel inyseir however under a very diflTerent im-
pre^Nion of duty, as one of the counsel for the
jirosectition. Tiie prisoner may take every
advaiila'^e that the laiv will allow; from us
youv lordships h^ve a right to expect every
concession that justice requires. I siiall (here-
fore admit (as far as in my conscience I think
them admissible) the several propositions urged
by the opposite side, state with as much fide-
lily as I can the true limitations of the doc-
trines attvanoed, and aslsert no point but what
1 h<»ld to be clear hiw, supported by undoubted
authority.

It is contended, in the first plare, to be a uni-
Yersal rule, that sentences of courts of compe-
tent jurisdiction are binding upon all other ju-
dicatures, in which any inquiry arises into the
matter determined : that proposition Iconceive
to be much loo largely stated. The rides and

frinciples that I have learnt upon that subject,
will very briefly submit to your lordships,
not meaning to argue, but only to state them.

It is a general maxim of law, that the sen-
tence of a competent court binds the parlies,
and all persons deriving any right under them ;
as to third persons, it neither prejudices nor be-
nefits them.

Another maxim, equally true, is, thnt a aen-
tenceof a court having competent jurisdiction,
if it comes collaterally before another court in
another suit, shall be presumed just till the
contrary appears. One court has do authority
4o direct the judgment of another; but it is a
fair presumption, that what hath been decided,
hath been justly decided ; it is, however, but a
jiresuiiiption, and in most cases it obtains only
till the contrary is provc<i.

1 admit at the same time, that there are
cases, in which that presumption may amount
to a conclusion. Where (he sentence has been
pronounoed in rrm, by a judicature having a
peculiar and exclusive jurisdiction over the
aubject- matter of the cause, the effect of such a
decision is not to be controverted in any other
jCivil suit.-l- Tliese propositions are founded
in the consent of all lawyers, who have treated
' of general law, and arc proved by a series of
judicial authorities: to quote them would lead
mto an iinnecessarv detail upon a |Mirt of the
argument, which does not immediately apply
to the decijiion of the point in question.

The cases cited on (he other side agree with
the distinction I have mentioned. A sentence
'of a court of Admiralty u|)on the forfeiture of a
ahip; tbejml;rinentof the court of Exchequer
con^leiimin;; Koods as forfeited ; are each of
th»m c-oiicliihive upon this principle, that the
. aenteoce is in retn, the court has pronounced
upon the property itself. The cases quoted of

t Pake's Law of Evidence, pt 1, c. «,
•• %, g. 80. Note.

sentences of an ecclesiastical conrf, are
matters of which that court has the pc
and exclusive cognizance. The Ecclesii
Court has the sole jurisdiction of caacf
mentar^, and of cases matrimonial, to i
tain eflvct ; if therefore a question arifes,
is entifled to the personal estate of a mi
ceased wi(h or without a testament, the pi
of the will, or a grant of administration,
the tide to the property in qufstion ; the
of it cannot be contested in other courts
terally and incidentally, because no other
has power to controvert the act, no otbi
thority can confer the title to the thing ii
pute. Such sentences are en rem.

The case is very difl*erent, where the de
is upon a personal contract, or any n
arising out of the various civil relations o
sons, in which the original cognizance c
cause uiitrht have come before the <
Where that decision is ofi*ered as an evi
of right, there the judgment of the fo
court can only have effect so far as it is jus
authority belongs to it but from its iutemi
tice ; for the court in which it is produced
DO obedience to the court which pronouns
and is equally competent to give the law i
parties. The effect of the sentence is bene
however, for the party who has obtaini
because the justice of it is presumed, the
of the facts on which it proceeded is adn
without proof, and the adverse party is ol
to demonstrate the falshood or iniquity of

In support of this distinction, 1 wdl
mention to your lordships one authority
late dale, which I select from a multitti
cases, not merely because it is a determit
in the last resort, but because the rule of 1
stated in the judgment. The case I allu
was decided by your lordships on the 4
March 1771, u])on appeal from the Coi

Session in Scotland, by Sinclair against Pn

■* _ -- - -

• See Dougl. Kep. 4, (Note to 2nd ed.
and a brief account of the cases of Crawfi
Whittal, and Plaistow v. Van Uxem, ii
same Note. How far a judgment of a fo
court having com|ietent jurisdiction is evii
of a right, was discussed in (he cases nc
by Mr. Peake in his Law of Evidence, chi
§ 2, and lately (a. d. 1810,) in Scotland, i
case of Kinlocli and Sohs, attornies of CIn
Arnachella Chitty against Iiiverarity, see
sions Papers, and Dictionary of Decii
From Mr. Douglas's report of'Walfcer r. \
ter, and his Notes (o it (it is the first case i
volume) a difference appears between the
nions u|M)n this point of lord Mnnsfield an*
Just. Bnller, and of lord Keiiyon. In an i
on a foreign judgment our courts will exi
into (he judgment, and for that purpose rf
evidence of what the law of the foreign
is, and whether it warrants the judgi
Per Eyre, Cb. Just. C. B. 2 H. Blackst
cit. Peake^s Law of Evidence, part L
§ S, which see for more on the ~ "^'
also, S ly of the MflM diaplflr.

l^-

♦ -■

f •

4G0]

'fir Bigan^.

A. D. 1776.

[470

.1

The oucf lion there wai, what shoald be the ef-
fed oT a jodgment obtained by the appellaot in '
Jamaica P "nie peraoo, against whom tliat jadgf-
ment waa directed, wag sued upon it in Scot-
land. It happened, that the Court of Session
refaaed to give any eflTect to it, and held the
party bound to prove the ground, the nature,
the extent of his demand. From that deter-
mination an appeal was taken to your lordships,
the judgment of the Court of l^ession was re^
f ersed, and the words of the order of reversal
weve, ** that the judgment complained of he
lereraed ;*' and oeclare ** that the judgment
of the court of Jamaica ought to be received as
evidence prima focie of the debt, aoti that it
lies on the defendant to impeach the justice of
it, or to shew that it was irregularly and unduly
sbtained."

Ily lords, the authority that I quote to your
brdshipa will have considerable enect in a sub-
irf|oent part of the argumenl: at present, I.
wljr urge it as a proof, that though in cases
where the sentence is in rem, where the Court
Inia peculiar and exclusive jurisdictiim to de-
termine the title to the thing in question, the

foreign lawyers be permitted to give testimony
that a decision made in their country by judges
having com |»etent jurisdiction was not agreea-
ble to the law uf such country ?

Under what circumstances and to what ex-
tent a judgment given by a court of competent
jarisdiction in one suit shall be c<Miclusive as a
har or as evidence in another suit, was much
Mated in the case of Maingay v. Gahan, ire-
liod 1793, in which the court of Exchequer
Chamlier (lord Clonmell. C. J. K. U. lord
Csrleton, C. J. C. B. and lord Fitzifihboii lord
ehaocellor) decided (in opposition to a judg-
IBent of the court of Ex<:lier|uer) that evidence
of a conilemuaiiou of exciseable goods pro-
munceil by sub-commissioRers of excise and
afiimed by coumiissioners of api>eal, is coii-
duvive in an action of trespass brought against
the seizing officer for taking such goods.
Ridgeway, Lapp and Schoales'n Irish Term
HeiKirts, vol. 1, p. 1. In this case ui Maingay
V. Gdhan, great use was made of I^Ir. Iiar-
gravv's Treatise, to which I have so ircqiiently
leferreil, anil of the cases and other anthoriiies
oiled by him, partiruiar'y of the contradictory
deeisiuns m R«iberls v F«irtuiie, and Henshaw
V. PUi>c.ince Of these the former is re|H)rled
bf Mr. Jiisi. Blackhtone, \ol. 2, p. 1174; and
t(e latti-r K ill us ifiven by Mr. (largrave from
Mr. Ford's MS. Note.

** In inivcr lor 64)b. of tea; it appeare<l in
evidence, that plaintiff* sent the tea for one
Ij'iyd, with a permit; but the porter in his
Hsy calleil at the house of one llochrlid'e, where
bating sei do<«n his liuilhen, the defendant,
Hhii was an exci^e offict^r, spi/t*il ii as forl'i'itwl
an bring brought to li^K^hclifle^s hou'^e for U*s
isr, without a |>ermit to that place, according
iMho 10th .Geo. 1, c. ^0, § \6. Upon Not
^ftiHty plndrd, defendant, to bUew the property
*;l||Mltf 1^ fUiotiffy ^roduoed a coudemna-

presamption iq favour of the judgment ia ad^
milted to be conclusive; yet where the jiidg«
ment is applied to personal rights, to matters of
which other courts have equal cognizance, th^
party against whom it is urgeil is at hberty tQ
impeach it, to shew that it is not just, or that it
haa t>een irregularly and unduly obtaint'd.

This beinur the distinction in civil cases, the
question arises, how far these rules are applica*
ble to criminal suits ? what effect ought the
sentence of any civil court to have ax a ha*" tq
the justice of the state in the trial and punish*
ment of crimes?

The counsel for the prisoner argue, that if
the civil right is destroyed by the sentence of i|
competent court, to examine into the crime if
an absurd inquiry ; where there is no relation,
there is no duty, and there can be no breach of
it. Is this so r Is it then competent to a pai ijr
bv anv act, destructive of the civil reiaiion. If
bolish the duties of that relati«)n? Persons

a

may deprive themselves of the lienefit of any
civil right, may dispense with the ailvantagep
of any relation of life, may be iniitleil to daim
neither as wife, mother, nor child; but can

tion by the commissioners of excise upon an in-
formation against Kochchffe for receiving thin
tea without a permit, which it was iu*«i>ted was
c<iuclusi\e evidence of that fact, Iteing a jiula;-
ment before a proper jurisdiction. On tne
other side it was insisted, that plaiutiff was no
party to the suit ; that Kochchffe had nothing
to do with the tea ; and that if she made a
feigne<l defence, or, as the case was, made de-
fault,' yet plaiuiifY uus^ht not to he affected by
that, but ahould ahew this was such a case as
no forfeiture arose.— But per Lee, chief jusfir^
thejudgmentof forfeiture is a jud;riiient on the
thing itself. How the tea came t(» Rochfliffe^fl
house was a matter proper for the consiileration
of the coinmissionera ; and if >1rs. UoImtis, the
plaimifT, was willing to have defended the suit,
she might have come in pro interetxe uio, Mhieh
not doing, her property is biMind; and that
there is no more in this than the co iimon t-use,
viz. thiit com Is of law pay such d«'ference lo
the judgments of each other in matters witliia
their jurisilict ion, that the iir.it deierfnin|iiiop
by a pro|»er authority ought to prevail. So
then the tea being forfeited, the property coulil
not be in the plaintiff, wno was therefore non-
suited.— Roberts against Fortune at sitiinga
after Easter term at GuiMhall, 1742." /tnd
Mr. llargrave refers to Bull. N. P. ed. of 1775,
p. 244.

Upon a lihel in the Consistorial Court for dis-
lurijance in the plaintiff's right to a |»eiv, the
Court adjudged the riiffit to be In the plaintiff,
and admonished, the <lefendant not to sit in the
pew ; the Court of .4i4:hes reTer^etl that sen-
tence, but admonished the di'feiulant noi tnu^
the pew attain ; th<*^e sentences were hehl nut
to l)e conclusive evidence of the plHiniiff s n:;ht
in an action for a disturhancp hetween the Naron
parlies. Cross v Salter, Pasch. 90 Geo. 3.
3 Term Rep. 639.

471] 16 GEORGE IIL Trial of the Duchea oj Kingston, t^T^

they alwoWe therotel? ei from the dotief that
belongs to the natural relation P Can they, by
their ovrn act, abiolTe themsekes from the aa-
cred datiea of those civil relationa which, in a
■tate of society , are natural relations P

My lords, the proposition 1 eonlend for is
■0 lar from absurd, that the contrary of that
proposition would involve in it the most mani-
fest absurdity: the civil interest is important
only to the parties themselves. Whetner an
estate lielong^ to one person or another, whether
k party is entitled to rank and distinction, to
whom related, whose wife she is ? the question
is of great indifference to society : hut if the
estate, the relation, the rank, is obtained by
Criminal means ; If the situation which a per-
son chuses to relinqarsh is attended with duties,
the advantage, bnt not the duties, may be
waved ; the peace and order of society must be
maintained, and no violation ol* them can pass
with impunity.

If there is an universal proposition of law, I
take this to be so, that no determination be*
fween party and party can preclude public jus-
tice from enquiring into the criminal tendency
of their actions. Daily exfierience proves this
in the most trivial instances. An action is
brought for an assault, the parly fails in it, there
it a verdiot against him ; it does not prevent a
prosecution by inilictment, upon the very same
Tact, against the very same party. In such an
indictment was it ever pleaded, that an action
had been brought against the party for that
mlledged trespass and beating, and that he had
been acquitted upon that action ? The learned
mnd reverend judges will inform your lordships,
that there is not a sitting or an aasize without
•ome instance of this sort, A question may
mrise in an action upon property, to which of
two persons a thing, a horse for example, be-
longs. It is decided to belong to A and not to
B. : would that decision bv an indictment
against A for stealing the horse P It is no an-
swer to public justice, that he has acquired that
property, when the object of the criminal en-
quiry is, whether he has committed a crime in
acquiring it.

The pro|io8ition advanced on the other side,
that a sentence in a civil suit is conclusive in a
criminal proceeding, was not so much pressed
upon any deduction of argument, as asserted
on the authority of a case cited from Strange's
lleports ; in which it was said to have been de-
termined, that the grant of the probate of a
will by the Ecclesiastical Court was a bar to
an indictment for felony in forging that will.

In the (irKt place, your lordships will give
ine leave to a^K, does it enter into the imagi-
nation of any lawyer, that the same rule would
take place with re^rard to a will of real estate?
Had such a will been produced in judgment,
the witnesses to it examined, the validity of it
canvassed, a judgment in favour of it, even a
decree of the court ot Chancery establishing it,
] do presume it will not be maintained, that all
' those proceedings would prevent a prosecution
for the foigery of that will. The same thing

might happen in the case of a deed ; a deed
may have been established by a decree ; tbar
property of an estate settled by it, irretrievably
perhaps ; would there be no ponbhment for
the crime, if it should be discovered afterwards,
that that deed was a manifest forgery P The
estate might be held iiidefeasibly by the party
who had obtained it ; but I do not conceive
that hist having got possession of that estate,
having obtsineit an advantage of which homav
laws could not deprive him, would be an answer
to human justice why he should not be pa-
nished for the crime by which he had gained
that advantage.

It is supposed, however, that there has beea
a decision, that a probate of a will of peraonal
estate bars an indictment for for|j;lng that will
Is the grant of a probate then an act of so high
a nature, requiring so much judicial accuriieyv
that it is not to be questioned ? A probate ra
common form is not even a judicial act, it it
merely oflrcial ; there is no Inigation, no en-
quiry ; the conscience of the judg^ is not en-
gaged in it. What is the purpoiie of forging a
will of personal estate P To obtain a probate ;
for without it there might be a criminal iotcn«
tion, but no prejudice could ariNe to any perssa
from that intention : ahall it he aaid then, that
the accomplishment of the crime is to aflbid
protection for itself? The authority relied oois
a note in sir John Strange's Jteportv, under the
name of the Ring and Vincent ; that a persoa
being^indicted tor forging of a will, upon pio-
ducing a probate, a probate in the f^ommoa
tbrm was held a bar to the proof of the fbrgeryi
and he was by the judfpe acquitted. This u
the whole note. It is a great misfortane that
notes, very often taken upon loose informatioo,
are given to the world under res|>ectable names.
The collections of a lawyer, made only for his
own use, must abound with errors ; in pub-
lishing such collections msny of these wilt
escape; and this is not the only instance of
mistake in that collection. I conceive it to be
impossible at any period, at any time of the
day, by the oegligeuceof any iuilife who might
happen to be present at the Old Bailey, that a
prisoner could have been acuuitted of a charge
of forgery upon such a defence. I say this
with conHdeiure ; because, in the inquiry that
hath been made into the cases determined,
maay have been tbum), where partiea have
been tried and convicted for forging a wiH of
personal estate, ami the evidence to prove the
publication of the forged will has been the pro-
bate, produced by the officer of the Court, and
his testimony that the piisoner was the person
who obtained the probate.

Mr. Attorney 'General quoted to your lord-
ships the case of the King and Murphy. Tho
prisoner there had the double villainy to turn
the charge upon his prosecutor. The trial waa
attended ny counsel who do not usually go to
the Old- Bailey; it is stated very fulhr byn
short- hand writer in the State Trials.* Thn

'Ueeityvol, 19,p.694.

for BigaMy.

if ih« K[d^ and Bietting wu b1«u m«n-
"" u trry maoireM that tlial im-
Ermo win unjusUv hHtiffed, if
Slranee \» law. Sterling'* rant
^■iiliiii: he wu indicled far littini; lurfrvd a
will, of wliicb will he had oblainnl a |irunslc,
■od sndcr that tille had Iranifertnl sunie MDck.
Thaperaon wlioiewill hesaid it was, wBsahve,
and tirodiK^ as (be nilii(i> i^inxt hiui, and
«f eognv lu iaip«ach the prolnte of her own
mil, Alwurd nv it may atein to doubt » helhttr
Ihatnidence wm co(n|irlcnl, if ihecaieuflhe
King and Vinrcnl wm law, iindoubifdly tliat
"itnrta oii^hi Dot tu bare been permitted in
pmnher own txinlence ; ahe waa dead by ir-
trfragable Ireal ar([Unicnt ; but the event was
fb{!rtrat,»Di Mr. Sterling, natwillialandinif the
[iriibale, lufTered fur hia crime.

ihniitet ihaae oawa, there vaa aoolher in no
toy remeie period, tn which a party wei tried
(at lb* rnrifery of a will, jo September aeaaiom
I ISJ. at the Oiil-Dailey . Uoe Ricbanliou and
Carr were indicted for baiinj; fur^d a re-
t for the payment of innney, wilb latent to
frauda particular persoci, who wai aieamsD,
'I'litled lowafcea: the comniQD caaea of for-
;--i_v of wills have been in the cue of seamen.
i-a the trial it appesreil, that the receipt waa
;:<iea in the lume of Jane Steward, who waa
U>» aappoaetl executrix of a will of ihia leaman,
*Ueh bad been prared by the detendanl Carr,
^OB tbc Mlh of the other defendant Richard-
«■. The learned judM, Mr. Itaron Ferrot,
VktIiMdthem, waa ol npinioo, that the pri-
tanara OUg:ht to be aciiuitled of the charnre of
ftlKli^ a recdpt for the money ; but, bein^
HMftcd from the evidence that llichardsun liad
ftqpKl ibe will, nolwilhilanding it had appeared
b Ibe trial before bim lliat a probate had been
plolfd of that will, he remanded Kicbard»on
lanal to lake liia trial for the forgery of the
VU. RichtrdaoD waa accordingly tried in
Ottabrr mhmdi 1765, far forging ibe will of
Ma Steward. ■ mariner: (he officer of Ibe
IWntive Court uroted upon that Iria), that
ll*«Hl WM brougrit to his office by Hichard-
■■.and a prahale of that wilt granted; and
«r^ H-at pinof he was con»icled, and exe-
cMri. The flnl learnetl jud|;e had remanded
im to priwn In Uke bis trial nl tbe eniuing
wwiiiin Ibr the forgi-ry of a will, the probate of
artdrii wa« then ia court ; and upon tlie aecuud
Uktnienl, which was tried by the noble lord
•ba praai'lM in the cuartof King'a-bench.lbe
piinijrr vrit convioied nutH 11 h Standing tbe
■ i . ■ ■ -11 piDved. Other cases hate been
"< lour lordahifia to the same ellvct
H liich Uifficicnlly refute that *in-
'■t ilie King and Vincent, the only

'- <ii Mippotl ihe argnmcnt. thai Ibe

b-ui.ii.. ,>| ■() BcclesiBslicaTCourt iaa bar 10

lliimi.' ')>»■ removFi) the only ahatacle to
It>e |>ni[ii>Ntiun 1 meaat to rrly upon, ihal in a
otaimal imitor a aenlence of a cit d court (lUttbt
-nel I* be canclnaiTr ■gainst a publio accuaatioo,
I AMT pncecd ut a more limited and close ea-

A. D. 1776.

t*74

quiry, what effect the sentence of jaclitaiioii
oiij^ht tu have in thin pruceeding, an indictment
for bigamy ?

It is of no imporlanre lo ilie preseni nii|iiiry
(0 invesiigalc. by what nienns lhe,coi,'niziine«
rtf causes mntrimmiial and testa men larv he-
longs not lu the sovereign of the slate, but ia
Ifiieu Id id order of men dcilicaled to tbe ser*
tice uf relifrioD. Tbe loal is, thai in the juris*
prudence of ihie coiin try. causes matrimonial
and leslaineatary are or ecclFvlHBiicit cnffni-
zance. The right lo try then) it not drrived
fbiui the king aa the founlain of justice, nor
exercised by the kini;'a court; but wherever
Ibe royal aulburiiy tnterposrs, it iv nnt as so-
vereign of lbcsiuie,bulasiu)'reinebead uf ihs
church. The law did niM even inivrfrre la
pnniah the violation of the matrimonial lighla,
and adultery, which in mnsi couniries uf Eu'
rope is treated si « eiiros, but was not consi*
dered in England as an offence pnnisbable by
the ma^istrale, but left to tbe correciion uf ec-
clesiastical eeninre. At length howeter Ibe
riolation of conjugal duty, accompanied with
tbe circnmstaoce of an open atiack upon the
order of society, by a second marriage, wan,
by special statute, made a crime : u hen I say
made a crime, I d» not mean it wss msde mure
imniorsl; but it was made a subject of criminal
cognizance by the maaiislrale. The learned
counsel who spoke secimd yealerduy contended,
that this staiuip gaie no jiiHsdieiiun to Ibe
temporal courts tupronnnnce upon the Ipgility
of the marriage; bul that the jurisdiciinn of
the Ecclesimtical Court, as lo the trial of tba
marriage, remained atill abioluie. It waa ne*
ceasary fur bis cause to attempt thisarguneoli
bul lo maintain this proposiliot) is a very ililG-
cull task. Tbe legislature, fifiy yeara al^er
the Relbrmalion, has declared thai tbe crime
of bigamy aball be pnnisliable aa a lelony by
tbe magistrate. To cnntict a person nf that
crime, must not the mngistrate try him?
Has be not Ibe power to acquit or condemn
him t Has be only an authority to intlict Iba
punishment, an in old limes, r ben Ihe church
delireretl over the olTeoder to Ilie secular arm i
and is the sentence of the spiritual court to

dcaiastical Court in the prf>*eni c<
be against ihe firal marriage, and ibereliire it la
urged ih' prisoner ouehl lo be prniecinl by il ; '
but, if tbeartiurneni IhJusi, ilraiul hold ci|UBlly
where the eentrnce is tiir the marriage: il
loundi leaa harsh lu eontend that ■ parly, de-
clared nut to be married in Ihe Hist inatsoce by
Ihe K|iirituBl Ciiurl, aball not be qiiesliooeal far
the aecond marriage. But by the satne rule
we mUKi conclude, that if the Spiritual Court
had determined for tbe marriage in the flrst in-
■tnnce, and Ihe fact of a second raamage had
beeu proved, il would cot have been oonipelent
for Ibe prisoner in an indiclmrnl lor bigamy,
so circumstanced, lu have ms'le any drfence :
be it concluded by the scutince. the judge and
jury are bouod to belieee il, and, upon tlut

ft75]

16 GEORGE in.

Trial of the Ducheu of Kingston,

[47(

■entoDCc, ^thout evtniiiilioii, to eoowd tiid
to puoith.

The effect of the statute I take to be veiy
ilifferetit : it has created a new offence, aoil for
the trial of that offence the cognizance of the
lawfulness of marriaji^ is Ki^^n ^ ^® temporal
courts. As to all criminal consequenoea, that
courl has oo^izance to determine, as well as
the Ecclesiastical Court, what is and what is
iH)t a legfal marriage between the parties.
That it has so, the caso of Boyle and Boyle»
quoted to your lordsiiips for another purpose,
is a clear proof: that was a probibilion issued
to the £cciesia8tical C!onrt to enter into an
•lamination into that cause of marriage, which
the Court, In trying the indictment, had deter-
mined. The other case mentioned by the
learned doctor is to the same effect. The two
cases differ onl;^ in this, thai in one the party
was convicted, in the other acooitted ; but the
Court was of opinion in both, tnat the Ecclesi-
astical Court could not interim.

It is unnecessary however to have re-
course to authorities, for the Matnte itself has
decided this question. The legislature seems
to have bad it in view, that a jurisdiction being
newly given to the temporal courts in the trial
of marriage, questions might arise, as between
oancurreot jurisdictions, what should be the
eflfect of sentences prooounce«l by the Eccleai-
flstical Court. It was a wise foresight in those
who compiled the statute, to define in what
cases the sentences of tbe ecclesiastical courts
oocht to preclude any enquiry for the crime ;
cod it ir defiiieil in tlie words of the exception,
*^ tliat this act sliall not extend to any |»ersons
divorced by the sentence of the Ecclesiastical
Court, nor to any pers<»ns where the former
marriage has bef n by the Ecclesiastical Court
declared void and null." There are two cases
then put by the statute, in which the sentence
of the ficclesiasliral Court protects the partf
against a criminal enquiry; sentence of di-
vorce, ami sentence of nullity of marriage : if
Iheretbre the Eoclesiaslical Court, having com-
petent jurisdiction, has either divorced the par-
ties, or if it has pronounced sentence of nullity
of marriage, the sentence in these two instances
is conclusive : but the atalute has no exception
in favour of a sentence in a cause of jactitation.
There is no pretence to argue, that a sentence
in c cause of jactitation is either a sentence of
divorce, or that sentence which makes the
marriage void and of no effect : no lawyer, no
civilian can make that mistake. What then
does the exception prove? Two sentences of tbe
Ecclesiastical Court are recited in it« the third
is omitted ; and it is a general rule of law, that
wherever a statute excepts particular cases, the
exception of those cases extends the statute to
nil caaes not excepted. That proposition is too
dear to require authorities to be cited in sup-
fort of it. The law therefore* which aaya tlie
trial of polygamy shall proceetl in all cases,
exeept where a sentence of divorce, and except
where a sentence of nuUity of marriage, has'
mter? cued, don firtmily iay» thct a mtcBoe

in c cause of jactitation of marriage, which i
neither of divorce nor of nullity, shall not be
the -trial. I conceive therefore tlie atainte t
have decided this question.

The argument on the other side ia pat in i
more plausible form, by stating the defrace ti
be founded upon a fact, of which the aeoteeci
of tbe Ecclesiastical Court it the beat evi
deuce : there, can be no double marriage, it i
said, because the sentence disproves the fin
marriage. This mode of stating the argumaci
makes it necessary to examine the nature a
a suit for jactitation of marriage, in order II
see what credit is due to the sentence when of
fered as evidence to disprove tbe first manisf e

A suit for jactitation of marriage is, mm
beginning to end, totally singular. ^ SoM
writers on the canon law derive its origin froa
the doctrine of pre-contracts, which, by tbi
ecclesiastical law, constituted a marriage: aa4
till that very mischievous prejudice was* d^i
stroked by the late Alarriage Act, it is not sar*
prisnig that any attempt to lessen ibe evil ahonM
mt^t with encouragement. The form of A^
suit is this: the supposed husband or wi^
complains to the ecclesiistical judge, that ha
or alie is a person free from all matriinoaiil
contracts or engagements with tbe advciap
party, and ao esteemed by all i^eighbooia,
friends, and acquaintance; that the ailvenfl
party, notwithstandinci: the knowledge of tbilb
has falsely and maliciously boasted of a OMT^
riage with the parly complaining ; it condwlci
then, by such tklse assertions au injury iacopf
mitled, and prays that right may be done kjt
declaring the |Mrty free from all matrimaaitt
engagements with tlie other, and by enjuraiBg
that party perjietual ailence. The party de-
fendant may either Siiy, 1 have not WMSted,!
deny that tact ; or, it' he admits that he bM
boasted, he is then to go on and allege dfr
cumstantialiy a marriage, which the otbsi
party denies, under the circumstances allejpf^
If the marriage is not pruve«l, then tlie cmM^
pronounces, that so far as )et appears, tlie paitf
complaining is free from matrimonial, coutraci
with the other party, and enjoins perpetual ii«
lence. i

Aiier this sentence, so gravely prooouoecfti
your Icfrdships are told by all the learneil daor
tore, and all the b<N>ks (»f practice agree, tbaf
this injunction of perpetual silence cimtioiNI
no longer than till the party cliuses to ta^f
again ; and the person, to whom he may with
the most perfect safety re|ieat his assertions, il
the judge who enjoined him silence ; for, it )
agreed on all hands, that the pany may at an]
time inform the court, that though it did MM
appear formerly that be was married, he ca^
make it appear now ; and such proof ia ad;
missible.

The forms of all courts had probably a gcai
original, and this suit may have been intrc
diiced to prevent a greater mistrhief; bat ilj
impoaaibie to avoid collusion in aiicli a ffo^
oeedittg, .which has no avowed object, bvl il
ooncct^thc indiacretion of a aappQccd tf^

:7T]

Jar Biganuf.

A. D. ifre.

[478

Aiirw : ind which, as the learned doctort oo
Im other aide truly state, has do termiDatioif ;
uid befween the parties themselves never ob-
aina the best eflert of a judgment, to nut an
end to litigation. In modern times, sucli suits
liafeseMumbeencommence<l but lofkvour some
indirect pur|Ki8e ; and were the sentences aN
la«ed to have the effect that is now contended
for, were they to be a bar to all criminal en-
fwry, it mifirhtbe expected that suits, which,
M tlie learned doctom state, may be carrieil on
without end, would very frequent! v aprin||f up.

Nothing can be fun her from the temper of
■jmind u)>on the present occasion, than to
■K a ludicrous argument: but when the un-
cmtroUible effect of such sentences as these,
m contrived and framed for fraud, was urged
ynlenlay ; and while to lessen the objection
li Ihem, it was grravely argued, that no great
Biiohief could happen from the decision, l>e-
cnse vop may reverse this sentence to-mor-
lav, that the next day, and a third after that,
Md that the suit was in its nature eternal ; an
iwenioaa person among the bystanders was
oleolating, how many wtveara man that had a
iMe lor polygamy, might marry with impu-
■ity ; and 1 think he made it out, according to
Ibc protiable duration of such a suit, that a
■HnbetweaD twenty-one and thirty-five might,
with good industry, marry seventy-five wives
by tenteoces of the Ecclesiastical Court, each
•BBtence standing good till reversed, and all
icversible by that judicature.

My lords, the argument is serious, though
k presents a ludicrous idea, for one conaeqoence
would probably attend a decision in support of
the authority of such a sentence. The Mar-
riage Act put an end to that terrible disgrace of
i civilized country, Fleet marriages:* while
Ihcy subsisted, it was a common practice for in-
digcnt women of easy virtue to get a Fleet
httliand to protect them from their debts. If
i sentence of the Ecclesiastical Court is to
kve effect against all but the parties, a cause
*f jactitation will supply the place of a Fleet
Kiarriage, and furnish an husbaml by sentence,
^fihom the lady may remove whenever he
j^oves inconvenii-nt. This is but one i nstance,
'■ad in the lowest olass of the evils, that would
^low from allowing such sentences to be iiiter-
FMcd against public justice, or the fights uf
iMrd persons. SVhal guard can there be against
HeertaiD isjme, unceitain rank, lyid all the
^oineroua ini«chiefs that arise from doubt and
cftHuMoa, introdiiceil in itie relations that foiin
Hm bonds of society ?

Were all conbiderations of the consequences
itteading such a decision to be laid aside, the
*try form of the sentence argues against its
king coQcliisive. W hat says the Ecclesiastical
Oiart in that sentence f '*' As far as yet ap-
^rs, nu marriage is proved." The verdict
vpou an indiclment will say, ** it does now ap-
|Mr, fliat a marriage is prove«l." The two pro-

* See aomelhiog concerning them in vol.

piaiUoiii do not clash with each other ; there
19 no oootradiction in them : to the party it is
said. You have not proved the marriage ; a
piblio accuser does prove the marriage ; the
luatioe of the country baa brought out the evi-
^ce of that fact, which the party either did
not incline, oc was not able to produce. There
fa BO repugnance in the different propositions^
no incengruitv in supposing that the sentence
anay stand «a between the parties, and yet ahall
have Ae cenclusioii either as to the public, or
as to third persons.

The argument in favour of the sentence was
supported by this dilemma. What beeoroea of
this sentence, if the indictment for bigamy goef
on P Is ii null, or has it any effect f Is the
party a wife, or no wife? I answer, to all civil
effects no wife ; the party baa bereaved herself
ef any right to benefit bv the relation ; to all
criminal effects a wife, because that relatioD,
the duties consequent upon it, and the respond
sibility for the breach of those duties, cannot be
destroyed by the act of the party. I could
quote to your lordships other cases, where the
party takes no benefit from his act, where he
holds the situation only to make himself amen-
able to the justice of his country. I refer to a
known case : a man had committed an act of
bankruptcy by collusion with a creditor, and a
commission of bankruptcy * was taken out
against him, the object of which was, to pro-
cure a discharge from his debta. He chose to
conceal a part of his effiscts, for which he was
indicted upon the statnte making it a capital
feH>ny for a bankrupt to be guilty of any wilful
concealment: it came out clear as the light,
that he was no bankrupt, that is, no bankrupt
to any civil effect ; he could not avail himself
of that commission of bankruptcy against any
creditor that had a mind to dispute it, except the
creditor who had colluded with him ; but
though he was in fact no bankrupt, he was
trieft and convicted as such.

My lords, af^er the indulgence with which
your lordships have been so good as to hear me
soiong upon this subject, 1 am sorry to be
obl^ed still to trespass a little longer upon your
patience, when I consider the fourth proposition,
which certaiuly is not the least material ; that
' is, that a sentence, infected with fraud, to which
collusion mav be objected, is no bar in anv
cause. My lords, upon that head the principle
is so plain, that the illustration of it will not
run into much length, and the authorities are
so decisive, that 1 shall only state, and not
argue upon them.

A senieiice obtained by fraud and colhiajoo is
no sentence. What is a sentence? It is not an
instrument with a bit of wax and the seal of a
court put to it ; it is not an instrument with the
signature of a person catling himself a register ;
it is not such a quantity uf ink bestowed 0|)Oii
such a quantity of sfainped paper: a sentence
is a judicial determinatiou of a cause agitated
between real parties, gpon which a real inte-
rest has Ineen settled :' in order to make a sen-
tence, there most be a real interest, a real ai^-

«79]

IS GEORGE III.

Trial nfthe DuchtM nf Kingston

[48^1

ineni, * retl pnweciilion, ■ rral Jef«DC«, ■
decisiua. Orall l(i«iR requiailps, not imp tsbrs
place ill the CBK of b rrsuilukul anil rollimve
■ml: Itiere U anjuil)[p; bul > pi^rson, inn
willi lliv (miiiini ot'a Jiiiliciiil uflice, ii niii
pinyeil in liiirainif Id a Hclilinus cbuh iirojioied
tn lijm : lliere ii no parly liligaiing, liirre ii
|Mny ilelcufUnt, du reul iiilereal lirouglit igto
queslion ; aiul, lo uw the words of > very
•Muilile civiliui od lliis (Kiint, " t'tliuli, dod
- judioiiim, tiDC ett ; in sccDJt, Don iu I'oro, re«
■{riliir."
. Tlie BT-ound Ihen upon wliicli 1 con(?Dil,
' lliat a callutiTr wnlecict; is no bar, is slmrtly
thii; Ihit stii^li at»nlerc« is a mere Dullily.
'*Buti[ i* iDsibted, (hat llie cnurl wliiuh pro-
DOUDCed llie a«ni«nce can alune deckre the
' Builily «f il. and, till re|M-iilcd, jl inuil stinil
good BDdtalid. Tlir aulLorillm to vliidi I
mean lo refer upon lli>« lirad, will rWule ihal
', .irgiitueat, al llie ume lime ibat Ihey prore ilie
. general doclrine.
I I The first ia my InrJ Cnke'a regmniug in
> rerinnt'k case, 3 Cuke 71 : lie coacliides (he
rewUiiloii of'lliecnaeiiiiliia manner: " Tbcre-
; upon it was concluded. lliBt if a recovery in
dower, or oilier real acliuo, if a reiiiitur lo a
feme-cutert or an infant, \i a wananly. if a
(ale in market OTerl, if lellrra putent of the
kinif, if prs«nlulions and admitlancea, lliBt is
lo fay, if all acli lempartil and spirituBl should
be atuided by cnvin, for the same reainn a fine
in Ihe princi|Hi1 case ieviid l>y fraud and corin
■ImII not bind." NolhiOiC can be mute explicit
(ban lliese wordi lo alirw, that iliere is do ne-
cessiiy that llie covin should be prosecuted in
Ihe eowX in which ilie judnmeot was obtained,
Tlie case of Llotd and AlaJdoi'ba ill IVloore,
S17. is a direi-l and a plain auibiirily : there k
fiiudulenl jodtcment was let u|i againil a ple^
of a l<:!|f*tee In lli^ Spirilual Cuuri. The quea-
liou in lh« ciiurl of ttiuit's-ticDch was, whellier
itie Spiriiual Cnurl should be nrohibiled lo enter
into tiie cuoaideralion of Ihe fratld of the jud^-
meul, whicli il certniuly nut a mailer of ei:cle-
■iastical co|[nlxanoe ; but the Court w^is of opi-
uinn, ihai ibe covin mbs aptly examinable in
tt court Chrialiao to that effect, aad therefore
tlie jirHhibitinn was denied.

My lords, the olher uulboriliea are more inn-

dero, though nut more decialie upon llie piiini

than this. The first I uieniioutu your lordships

' .b Ibe caie nf Priidham and fbjllipi : there is a

f' very bad and • very inaccurate note of ii in sir

' John Strange : the note, from which I cite It,

fS a tnanUBcript note of Ur. Ford.* In that

Which is ibuH printed by Hr. Har^rave,
' 10 his Diieourse mentioned in a Note at the
beginning of ihis Report:

" Assumpiit brought against defendant, who
'' tate ia evidence a inarriage with one Mr.
"JIuiloiRn. PluinlifTiheMed a KDleoce in the
•Spiritual Court annulling that inarriagr, tiir
that at the time of lolemnizing il, defendant
wu married to one Delalicid, alias Duval,
j^iuDb Ihe jiIaiDliff'a couukI relied ujwa a*

case it was detennine<l by lord chief jufliM
tVilles, tliBl a fiaudulent and collusive aenteiieq
against Hrs. Conslaiitis Phillips was binding
upon her ; but he cDni:lodei it waa binding
upon no Olher party : the fraud was a maUet
oi^ fact, which if used in obtaining judgmeol
was a deceit upon the court, a fraud upon
strangers, who as Ihej' could not come in lo re-
verse il, they could only allege it wbs fraudu-
lent, tie said in that case, that any creditM;
of hers might reply Ihot il was fraudulent, anit
■void the effect of it. The other cases 1 refer 1
to are, my lord Hardwicke's authority in "'
case of Roach and Garvin, Isl Vi'zcy "
and in tlie c»sf of Brunnsword and Eilv
£d Vezty aiii. In the case of Roach and Gav
rin, the ijiieslinn wis upon Ihe effect of a
riage, said lo be established by the lentence oT
a court in France. Lord Hirdwicke enters
into Ihe coniideratinn uf it thus : " The 4u«»>
lion is, whether this is a proper sentence, in a
proper cause, and between proper parties ; whe-
ther a marriage is had in fad, or any coniract
in praienii, as a sentence in Ibe Ecclesiastical
Court would be cunclutiive, unlets there be col-
lusion, uhich would overtuin the nhole." Ia
the Olher case the ground is exactly the same.
From these cases, 1 conclude it to have bee*
the uaifurm opinion ol' all the great judgM

1 refer 1

conclusive evidence of the nullity of siicll

tended marriage. And so it was agreed ui

dvlendani could be adinilted lo slieu great frkof
in nbtaining the senlence, and so aioii) it, m
judgments are daily nroided by replications tt
fraud.— Bes aired on great debale, that the Mk
clesiaitical law was jiarl of the law ol the lan^
end senlencei by their judges were therefore is
niallen of spiritual jurisdiction, of eiiual BBi|,
the same force with judgments in vnurta m
record.or in courts of equity. Whatever oUcc»
tiona, therefore, would ivuid a judgment ir ~
court of common law, would be siifficicDt

none others: that fraud was a matter of fi_
and if used in obtaining judgmeuls was a di
celt on the Court end hurtful lo stranger^ wt

aside the judgment, must of necensiiy be
initled tnaver It was fraudulent 1 and ibis was
reason why vxecutors mti^hl hate such ati
tnents. But whoever knew a defendnnt pte
that a judgment obtaineil against him was fr_
dulent .' He must apply to the Court, and
Iwth parties colluded in the cheat upon ''
Court, it nag never known that either of ll
could vacate Ihe judgment. Here defei
was parly to the sentence, and whether
was unpolled upon, or she joined in deceifii
Ihe Court, this is not the lime or place for h
to redrem herself. Uhe mny if she has oc«a-
sion appeal, or apply oiberwisi!, to the prnper
judge. Nnte.Uelufield died about M)
tiffure action brought. — Prudam et al,
Phillips, alias MuiVman alias Del*A«ld, cota;
VVillFS chief justice, sittings in Middi
C. U. after KLtcbaelmu lenu, 1737.'^

iihi .

i

481]

fir Bigamy.

whn Mt ill WntiniDSter-hall, from the time vf |

lord Coke dovrn to the prenent time (anil the

coiiria were never more ably tilled) that fraud j

and oulliMioo not only ▼itiaies, but absolutely

aaniilft ; and that a sentence obtained by fraud

if, literally, no sentence at all ; Hierefore the

objeetjon of such an inurnment, of so much

piper and writmt;, is the objection of a mere

Bul-iiy, and can have no ftfi^ct eiiher in a civil

or in a criminal suit. Hat ing* troubled your

lonkbipa so very lont;, I will take up no mure

of your time, even to recapitulate the heads of

the anrmnent, but hasten to return my humble

thanks for the great indulgence I have already

operieuced.

Mr. DuTiniTi^. My lords, I purpose to give
par lordships very little trouble: indeed, I
ikoQid be without an apoloc^y, if J had thought
«f civing yon much, fiiidiog, in the station
'il which I hold in this cause, the subject com-
\ pktdy exhausted ; and I cannot but suppose
ysar lordships' attention in a great measure
tired, notwithstanding the ocranional relief
which the entertaininv: parts of the cause have
tSbnleil, has given you. I have the less in-
cfatijon to give your lordships much trouble,
M I %¥ft\ a degree of surprize, that it should
lave been thought necessary for the counsel
•B the part of the prosecution to give your
M^bips any.

Hj lords, the subject for immediate conside-
Mioa is, the competency of obtruding this
Matence, in this stage of the cause, to stop the |
tiaw here, and t» require of your lordships to
Mde it, without any regard to the truth or
Ike justice of the case : such however it is con-
Mvd it the effect of this paper, that is offered
iiyoar lurditbips under the name of a senteoce
<f the Ecclesiastical Court.

The novelty of the attempt it is not my in-
^Btioo to expatiate uf>on : it has been truly ob-
Nrved to your lordships, that some prejudice
tt least may be expected in the minds ot your
hrishipa against an attempt so novel ; for
Aough 1 am not so blind an admirer of an-
li|aitj as to take for granted, that every thinif
Ibt IS new is therefore wmng ; sure 1 am, I
!■ warranted in expecting your lonlships* con-
carrence in thinking, that those, who propose
it this time of day to introduce into the judi-
Mare of this country a new practice, ought
Il be prepared with such reasons as should
•Mpel your lonlships' a^^sent. This I think
feiybe fairly insisted, upon the head of no-
trftf.

My lords, the gentlemen undertake to main-

^, ftrst, that this evidence is competent and

tdninihhe; secondly, that it is conclusive;

tii thirdly, they insist on this ronctnsion, not

<lly apoo the supiMMitioo, tliat it is a s<'ntenre

ftiny obcained between real parlies, afler an

agitation of the question, Mhieh it is

to ha? e decideil ; but though all these

shnnid lie totally wnntintf, and

llw ooolrary of them a. I should lie the

rihe caaa, IheaoiteDce ii insisted on aa

A. D. 177(5. r*8»

eqnaHy conclusive. In that extent it is, that
the geutlemeu have undertaken to maintain
this proposition ; and a very considerable task
it seems to me they have undertaken. Illy
lords, I consider the sentence as read only dt
bene esse, merely that your lordships may know
what the contents of it are, that jon may have
the assistance of that knowledge in judging not
only of the ultimate effect of it, but of the pro-
priety of receivini^ it ut all in this stage of tha
business. At the first blush, to he sure it
seems a little absunl, that your lordships should
be to decide the caiise before you have the
smallest know!etlge of what the case is, that
is to be stated upon the part of the proserutiou.
It is certainly necessary for those that are to
jiid^e of this paper, to know what it is. It is
a st^ntence in a court, of which your lordshipa
heard yesterday abundant commendation. It
was observable that those who were most lavish
in that commendation, were least acfjiiainted
with the practice of that court. The first of
the learned ilortors spuke with a very becom*
ing modesty of the court in which he prac-
tises. The oiher explained to your lordshipa
the nature of a jactitation suit as concliidin(jf
nothing, being to be revived at any time, and
consequently having no end. It was contended
by all the gentlemen, that this court was en-
titled not only to what on the part of the pro«
spcutor we should have had no difficulty per*
haps to have admitte<l, to co- equality with the
courts of temporal jurisdiction, but to some-
thing superior; it was contended that there
was something in the nature of this subject
that made it peculiarly the province of that
court to judge of and decide upon : not that
they have better means of information, not
that they have better rules of decision ; but
from f^omething unexplained in the constitution
of the court, it was rather assumed than at-
tempted to be proved, that to that court exclu-
sively belong matrimonial questions, questiona
on the rights of marriage, ami even of the facta
of niarriaiie. I am persuade<l your lordships
all go before me in feeling a conviction, that
there is not in that extent a foundation for that
claim : yet this peculiarity of jurisdiction, and
the consequential necessity, in order to get rid
of the sentence, to resort again to that juris-
diction, apiieared to me to be the points princi-
pally insisted on. Neither of them, I trust,
your lordships will think are made out at pre-
sent. I am Considering the first That to
certain purposes, and with a vie^ to certain
consequences, the Spiritual Court is the only
court in which qoeations of matrimony can l!c
agitated, is most true. There alune it i<(. that
the party deprifcd of, and complaining of the
want of conjugal ricliti, must resort to snk
them : there it ia, where the party s pposeJ :•
be injured by a false claim of a inarriije. wbea
none exists, can obtain rei!res<( r>r \\,\x i.\i-«7 *
but, toother purpoae^, amf ^arinis i"^ "*^
porpoaet in wbieb tbe que^ii'^n «'?' juj*— '
arises, whether it is to he ex^miceJ a*' *"'
view 10 icoipofal or spiritual aJvx&:

Ml

-ifl

▼31

483]

16 GEORGE III.

Trial of the Dvdiess ofKifigstoitf [484

tber it is (o be examined into with tr view to
rififbti derived from it, or ponisbmeDts for
crimes committed iu relation to it, to tbe tem-
poral and not to the spiritual courts be1on(|^, 1
conceive, tbis question of marriage. My lords,
to suppose otherwise would be to deny m fact,
that your lordships sit here with any jurisdic-
tion at all ; for if it were true in tbe extent in
which it was contended, that to tbe Spiritual
Court exclusively belongs tbe consideration and
decbion of tbe question, marriage or no mar-
riage, it will follow )»y a necessai'y conse-
quence, that if there were no such sentence as
tlie present to be thrust in our way, and to
create this temporary difficulty, for such I trust
it will prove to be, if there bad been no decision
in tbe Spiritual Court at all, your lordsbifis
would only have been in the possession of tbis
cause for tbe purpose of writing to tbe bishop
Co know bow toe fact stood, and from his certi-
ficate to take yoor ideas of tbe question which
you are to decide upon. The gentlemen must
maintain not only that there was not at tbe
common law any thing like a jurisdiction, but
that this statute, which means in terms to give
a jurisdiction, has not in point of effect ^ven
any. I am at a loss to find a way, consistent
with what tbe gentlemen have maintained, to
deliver them from that consequence. If they
insist, that no temporal - court has a power to
enquire into a question of marriage, it will go
to that extent. They have made a distinction
between those cases, in which tbe questiou is
tbe point of the cause, and in which it arises
incidentally. Tbe question does not arise at
all, uolesrit arises materially : if there be any
thing in tbe distinction, let us see a little bow
it will help this argument. Was tbe marriage
tbe gist of this cause in the Spiritual Court ?
Ko : tbe lady applies to tbe Spiritual Court, as-
suming that there was no marriage, complain-
ing of au injury, which consists in the circum-
etance of a man who was not her husband
taking to himself and boasting (as a man would
be apt to boast in such circumstances) of tbe
honour of bearing that relation to her.

This cause is not in its nature a question of
marriage, but of defamation. If that, which
the laav suggested, bad been admitted to be
tbe truth of the case, be would have been to
excuse or extenuate his offence, iust as the na-
ture of bis case would enable him to do, by
either denying that he bad boasted, or stating
^bat had led him into it : but tbis defendant
•ays, No : 1 have held that language, which
you call boasting : I will not dispute with you
tbe propriety of that appellation : I have called
this lady my wife ; because, whether it be my
good or ill fortune, she is my wife. It is for
that reason, and that reason alone, that I have
held this language, which is imputed to me as
a crime: I am no criminal in holding tbis
language, for that is my situation, and this is
my detence. Thus it is, that tbe question of
marriage is Uitroduced into tbe cause : it is
insisted upon as a defence ; ai a matter ma-
tttSal to her defence it ia that the questioii of

marriage in this cause arises. Is it len inci- .
dental or more direct than the same quettioa
arising in the ordinary way, in which it
arises iu temporal courts? A person, claim*
ing to be the legitimate son of bis fiither,
commences an ejectment, in which tbe ques-
tion of legitimacy turns out to be the oolj
question in the cause : it is essential to bia
supporting bis claim, that the court, who are to
juoge of it, and the jury that are to decide upon
it, should be satisnecf of tbe facts, that tbe
claimant is the eldest and the legitimate eon of
tbe father. The point of marriage ia not tbe
point of tbe suit directly, immediately, osten-
sibly, and upon the face of- the recora in that .
cause ; but incidentally, materially, and neces-
sarily that point becomes a point in tbe cause.
Just thus, in my apprehension, tbis cause
stands ; and, as applied to this cause, the gen-
tlemen cannot avail themselves of the distinc-
tion between tbe jurisdiction to be exercised in-
cidentally, and to be exercised directly, upon
tbe subject of marriage. One of the learned
doctors represented bis ideas of this jurisdiction
exercised in the Spiritual Court, as if it was a
jurisdiction to decide upon an abstract question.
I am persuaded the learned doctor in tbe use
of that word meant only to say, that in their
forms of proceeding, and in some of these
causes which are instituted in their courts, tbe
right of marriage, in contradistinction to the
fact of marriage, was more immediately perti-
nent than in some of the proceedings in tem-
poral courts ; which to be sure it is. In any
other sense of the word, the learned doctor
used it inaccurately ; for that court, any more
than this or any court, has no jurisdiction to
try abstract questions of any sort. No question
ought to be agitated in any court wbateveri
unless it be a real question springing from a
real interest, and between real parties. To
agitate any other question is an insult to tbe
Court. TUere is a sense in which the Court
may be said to have agitated this, in the nature
of an abstract question ; for it is certainly true,
if our instructions have any foundation in
truth, no one circumstance of the actual case
of the parties was before the Court, or made any
part of their euquiry. I trust, 1 shall be thought
to have done enough at least for the Ecclesias-
tical Court in admitting, that their sentencce
are equal to our judgments ; that they are not
entitled to more, I may safely contend, when
I am admitting, that they are entitled to as
much attention as is due to a decree of a court
of equity or a judgment of a court of law. In
such an admission, at one time I should have
been thought to have gone much too far : I
trust, the learned doctors will forgive me, if I
cannot carry nsy civility any fartMr. God be
thanked we live at a time, when a better «n*
derstandin^ of the subject, and a more liberal
way of thinking upon every subject, has lo
far abolished the ancient differences between
tbe different judicatures in tbis country, that,
we and tbe learned doctors auiy meet to-
gether without quarreUifig. Their prooeiAifi

J.jr Bigamy.
Mia wfaieb il it eotniielenl lo ibem lo
proerol, itttnt llie nme atlention and failh
** tfioae or («m|)nrd mitrti. Tliii ii|i|>eari In
toe t« reduce the daim, iipon lite pirl uf
itiwe ihai are tn lupporl lhi« lenience, |ire-
cnwly Id this tiluition i iDit il it im|iowible la
carry il one joi Turtlier: il it ao opinion nf ■

-)iltnirin)f iU)Krioror excluiivG, butbat-

incurrent juriEdicliao of ihii queilion ;
Ing eompetenl power lo decide, gnd hiving
~~iwcn 10 exclude innlher decision eUe-
;, where, for other purpufes, criminal or
nil il may conie lo be diicussed, aocordinj; to
tli« farm] ntiicb thaw ilifTereiil judicntures
usuatly obaerve in Ibeir iiroceeillnga, toully
vnObtiTUcled or mislsled by any atienlion to
«Hut has j)ined in any iillier judicature: this,
I trutt, Hill be your lurdsliips' Jud^rnenl upon
the queilion agiiaiod betweeu us, if it should
be material.

Hy lonli, I laid in my claim lo object to Ihe
trfmiMibility of tbii piece nf eiidence, upon
tthieli, if I ihould have the good tbrtuoe lo
line your Inrdthips' concurrence, Ihe subie-
<]iirat ciiniirtcralion nf the efllecls of il, if ad-
miiled, •rill become tulally immileriil. I deny,
1h*llhis iiadniinible ins cuurt like this, a
«iUTt of llie liigheat criminal Juriidiction in
Ihit country,

Hy lorda, it w ao fBrniliar, IhnI it would be
iopMineut la Ihal pan of the Court lo which
1 Mt« the hooaur to adJreas myself, which is
t/m particularly cnnversanl in the forma of
ineceitiitg in cuuris of juilice, to be Inbour-
Wld prove, that when a aubjecl is examined
k&tn Ibe course of ■ criminal enquiry, uoder
At form of an indiclmeni, or of nn informa-
tiW| wbat has passed or may pass in the course
Wadril enquiry upon iheaame subject and
IklMne question, is not only not regarded, but
HMidroiltcd. In the instance lli at was put,
ail luaay others that may occur to some nf
lordships, il is [lerfeclly notorious, and
bre neither requires argument nor proof,
the practice is certainly so. Lei a man '
^goiHed io a court of criminal juriidiction,
iBoi preclude a party, complaining of an
'ciog from thai act, which in a crimi-
his been preaeuteil aa a crime, from
jp{ rrdreu for Ihe ciiil injury ; and vice
- '*' fate of suuh an action cannot be en-
jBuch lem cannot it preclude the
siubseqnent crimmal enquiry,
'ram (be same aci. It baa been
^b • court of one deacripltQn, il
to in a court ofuMther

. *sy loru^, one reoMO (there are oiheri, but)

•M fciaoii wby courts of criminal jtiriadiclion

Si aOI admit any accnunl nf h hnt has passed

'" i iT:i ;i<,'ilalion of the question in a court of

1. 1 dun may he, Ihe liability to fraud

' I'll. I am not nou artfulni; upon the

.!.ii-rnn in thin case: but it ii obvious

t. Mould do, if Ihe sentence of s court

ncli juncdiction. wlieitier ecclesiaslical or
wral, will preclude a crimiuul enquiry, tbe

A. D. 1776. [48C

receipt is of ample use ; and all men may, if
they please, cover Iheinselvea aifainst the penal
conseijuencei of their crimes by inatitutmg a
friendly suit. Some such we have kuown lo
have been .«n conducted ai lo escape the alieo-
lion of the judges, who have nui liiuiid out, tdl
afier the cause has been decided, that the cause
has been collusive. Cases of this sort are »0
open to fraud and collusion, that fur lliis rea-
son, if there were do other, the courts of cri-
minal jurisdiction will always reject such evi-
dence. I do not knoiv that case has yet ex-
isted, where any person ha* dune so siraniie ■
thin^, as to put it in the power of llie Court to
receive or rpject by offtriog such evidence.
Your lorilsbi|>e hate hud cited lo you a case,
vrhich, having been treated as it deserres, need
not be repealed by me ; the case of Ibe King
■ud Vincent. If it were possible lo suppose
thai case could he law, that lupposilion is ri-
iDOved, when your lordships are told thai a dit-
ferenl opiniuu npoa the same point has bceu
lield by the judges that hare succeeded in the
same court, and to whose knowledge or ability
uobody, that knows who they are, would, I
believe, object. The last of these cases, the
King and Stirliog,* I am aware, may be at-
tempted lo be dislinguished, and for what I
know Ibe Rrst of them maVi by saying that the
question did not occur, the objection was not
taken in either of these cases ; but your lord-
shi)js knowiotf before whom those criminals
were tried, will believe Ihal no such objection
would i^e escaped lbe«ejudges,if it had been
founded in law, although no counsel objected
lo il, or alihough Ibe criminals perhaps hud not
Ihe aniatance of counsel ; therefure I consider
thit case as fairly dismissed, and llie subse-
quent cases as carrying an authority upon our
side that more than overturns il ; hul I clo not
conceive, Ihal even this was wanting ; fur the
instrument in Ibe case of ibe King and Vincent
has no resemblance to the sentence now offer-
ed ; it was an official instrument, ut-cessury to
give sanction to a legal right. Letters of ad-
ministration, or a proliaU, may be admiiaible;
hul il does not by any means folluw, that a
sentence hke this is admissible here ; if it be, it
musi be equally admiuiible on all sides. The
gentlemen argue, that your lordships shoulJ
receive it, should act upon it, should conclude
upon it. Why i Because il is a sentence re-
scinding the marriage, declaring that there waa
no marriage; that is the import of this sen-
tence, and therefore it operales in their Ibvour,
id therefore it happens that they produt' *■

Let n

t the c

; lei Bi

.UpiH

^ ilist

when this lady instiluted that suit, the parly,
who was Ibe object of it, had supported that
defence, oa we conceive he was very well able

* See Ihis casein Leach's Cr. Cases, Anil
note the remark adopted hy him from Ur. Cal-
vert's argument, infra, p. m, that in thai
case Ibe probate had no| at the time of Iho
trial been recalled. See, alto, East's PI. Cr.
cb. 19, t. tf .

487]

16 GEORGE III.

Trud of the Ducheu ofKingtton,

[488

to hare done, arid that io oonsequenee the
caiice ba«l eo'Ied ia a dccUratioo or a seDteooe,
that there was a marriasre : in that case, would
it have been ef idence upoo the part of the pro-
secutor? IVou!d it have beco attended with
those cooseiuences which they are claimlo;^
Ibr it oAvr ujicid the part of the person proie-
ciitel ? Wutild your lonlsbipa bm?e endured,
that the proiecutor should bate come here to
support this indictfD»ni by do other evidence,
than the production of a sentence in a suit hke
this in the Spiritual Court, by which thzit court
had deteroilned Air. Herrey and the lady he
had married werv husband and wife ? Can I
possibly state it to any mind that comprehends
It, that does not at the same time re?olt at Uie
apparent hardship and injustice of such an
iufS? And yet is there any thiiifi^ more true,
than that a record cannot be evidence of one
side, which would not, if it had imported the
reverse, have been evidence, and with equal
force, of the other ? 1 conceive it to be one of
the fundamental rules to determine what evi-
dence of tliis nature is or is ni>t ailmiKsiMe, that
if it could not have been admitted ou behalf of
the party objf ctinj^ to it, supposing^ its import
had been favourable to him, so neither shall it
be admitted on the part of the person pro|K>s-
Inff it. I trust I may be warranted in pre-
•umini^that your lordships think as I do; that
in order to su|i|>ort tiiis mdictment somethinir
inore than such a sentence would be required
from us ; and that the le<;islalure in makinj^
this new provision meant, that the fu§t Nhould
be enquired into, as ail other (act<i are enquired
inio ; tbat the relation should he proveil by
those who were witoeKses t«i it, by those ulio
can prove the confesMnn of the parties to it, or
by tiio<ie who can ts'ive such oilier eviil#^nre as
courts of criminal jnrisdiclion aie auibori>ed to
act upon. Cm any tliini; tlien l>e more ob-
Tioiisly unsuttaMe to any idea^i of justicv, than
that the enquiry should be piffcludi'd by a re-
cord in favour of one of the parties, which
ini'^ht have been as favournhle to the other
tmrty, and which, if it bad been, Hould not
Lave been rei^rdfil ?

If your lordships think fit to admit this evi*
dence, hw\ by so doin<( to raise a question upon
the eifi.'ct'i of it, the t^eiitU men ar;^ue with some
apjieiiiancc of triumph, that this kind of sen-
tence is citnclusive, for that there are various
instnnci'S, in which sentences of these courts,
in which judifments of other courts, have hf en
held conclusive. For this purpose your lord-
ships are fLM-nished with a g^reat slrin|{ of cases,
some of condemnations in the court of Exche-
quer, some even from boards of £xcise, some
from courts of Admiralty, some from domestic
and some Irom foreij^n courts. There has
existed, and fiily existed, such a comity in the
practice of one court towards the proceedin<>s
of another, that, whether the court be loreit^u
or domestic, the courts presume, that what is
done is riifhtly done, that there has been no
Cfdlusion, that there has been no fraud, that the

judgiueot imd decree ii wbitt it ougbt to be, the

'effect of an adverse suit between adrcne par-
ties. Presumin;'' the effect of such seoteQces,
such decrees and judi;iDeiits, to t-iftil causes to
have been what it hjs been stated to be, it
must have been upon the supposition and opon
the presom{jtion that the sentence or the decree
has been fairly and rij^htly obtained ; but if
this decree of conclusiveness were allowed to it
in criminal cases, if snch a sentence were al-
lowed to be conclusive, where the parties are
unprepured in point of evidence to impeach it,
and it' such were allowed to be the effect of it in
such a case in courts of criminal jurisdictioo, it
would obstruct the course of justice in a thou-
sand instances, and in effect operate to the re-
Eeal of this and many other wholesome laws,
n this instance the mischief would be too great
if the |iolicy of this Idw be questionable, if that
which we call a crime is an innocent action.
If there is no impropriety in the practice now
brought under yonr lordships' cnnsideratioo, if
poly:,: amy deserves encoura|pement instead of
a check, then in another character your lord-
shi|is will do well to repeal tlie act ;'but do not
do it in your judicial character.

My lords, cases may be supposed, and we
are in a situation that authorizes us, nay, not
only authorizes but requires un to suppose, tbfl
l^^russest cases that our imaginations can for-
niNh. It is not difficult to supp<»se a case, in
M hich the directest traud u|ion the Conrt may
t»e practi!fed by means of the {grossest peijury,
and yet through the c«illusion of the parties il
may lie maua^^ed with so much dexterity, that
it uould he.impossiliie to get at them; and ia
all these instances tlie effect I am now depre-
catiu',^ ivouhl be of course let in upon the cri-
minal juriiulictioo of this country.

My lords, I am |>ersuailed your lordshipa
will not do this. In uhat I haiesaid upon this
point, I have anticipated in part the question
which I stated as the third in the order, in
which I purposed to cousitler the ar^rnment on
the part of the lady at the bar. All her coun-
sel have attempted to contenil for the conclu-
siveness of this sentence; and they all mean, i
presume, to insist upon it as precluding an en-
quiry into the mode of obtaintu^jr ii. The other
learned gentlemen will excuse me, if 1 seem to
have been less attentive to what fell from them,
than to the second counsel on the part of the
lady. The fact is, I heard him more distinctly
than those who preceded or followed him. He
chose to consider this act as not ha vinf^ created
a new off<;nce, hut as having simply varieil the
punishment anil modeoftiial of a known of-
fence, which existed as the law stof»d then. I
am at a loss to comprehend, io what sen^ this
can be considered as haviufy not created a new
offence. This act declares souiethiuy^ to be •
felony, which before was no felony. This act
creates that to be a felony, enquirahle into ia
the way In which other felonies are by law fu^
quirable into, in a case that was before only
cognizable as an offence ajrainst the canon law,
and eoquirable into in a suit which had no-
thio|^ for iu object but the spirituai iattiresl af

459]

far Bigamy.

A. D. 177ft

[490

the party. I coneeive it to be a new offence in
the same sense, in which alnoott all the statut-
able offences in this country are new offences.
This act has not only created a new offence,
but, as I conceive, abolished an old one ; for 1
doubt whether it be now competent for an ec-
clfsiastical court to proceed to enquire into
offences of this sort, if it were (as has been
8U)iposed) their practice before this act. By
the custom of London, a certain species of de-
famation is actionable there; and uj)on that
{ground the temporal courts proceed in grant-
ing prohibitions to stay proceedings of the Spi-
ritiialX^ourt in such cases ; so 1 apprehend the
courts would do here, if the Spiritual Court
proceeded * pro salute animtt* in a case of po-
Immy. My learned friend assumed, that
tiM sentence would stop the proceed'mg of such
a cause in the Ecclesiastical Court, but re-
ferred to the learned doctors to make it out;
which the learned doctors, I presume, not liki
iog the jeference, forgot to attempt: so it
stands as a point assumed, but not proved, that
the Spiritual Court would at this time entertain
such a suit, and that its progress would be
ttopped by such a sentence. Your lordships
beard a very pathetic description of the melan-
choly situation in which the lady will stand
wider this sentence, if this prosecution nro-
ends, and in consequence of it she shoula be
tiiated in the disagreeable way to which the
act eiposes her. She will nevertheless, it has
ben said, after having been punished as a mar-
risd woman, be totally destitute of any ad-
vantage in present or future of that marriage ;
ibe can never claim any conjugal rights, nor
(if ber circumstances did not preclude the ae-
coftity of her seeking it) could she compel any
aisiotenance from this gentleman during his
life-lime, nor can she, if she survives this sup-
|MHed hu&band, support any claim to his for-
tune.

Ily lords, the husband is in the same la-
aeotable situation : it is equally incompetent
Is him, while this sentence stands, to derive
•ay advantage in point of comfort during her
lilc-time, or iu point of succession upon the
^*h of the lady. It may be so; but if it is
IS, it will not be the effect of the judgment
}oar lordshi|fS will be to pronouuce : it is the
vffiect of those practices between the parties
»bich have produced this sentence, and which
kive made this their situation and their state.

My lonis, it will be time enough to consider
tbis question, when the case arises. If ever
tbis lady should re- assume an inclination to
olablish that relation, which in this suit she
bss thought gooil to disclaim ; or if it should
ever be the pleasure of the earl of Bristol to
coMDcct himself again with this lady under the
rcUlion of an husband ; it will then be time
cnoflgh to enquire, what they can or cannot
Make of such a claim, or what the impe<li-
iMQts are, which they will iiave to remove in
Nder Ui establish that claim. As neither of
Ibcse cases jare very likely to arise, it is imma-
kdal 10 go further into the enquiry of what

may probably or possibly be the ooDtequenco
of them. It occurred to the learned gentle-
man to consider, that it was very poseude bo
might be led by this train of reahoning into tbo
consideration of the effect of the collinioo.
Your lordshi(»s will permit m^- to remark, that
the learned gentleman who spoke iirtit upoa
that side of the question, chose to l»e perfectly
silent n|»on this head. He did not seem to
know that it would be likely to occur to us ia
the consideration of this sentence to suggest,
that it. was collusive ; for unless it were by an
allusion to the case of Hatfield and Hatfield,
the notion of collusion, as making a part of this
question, did not seem to have occurred to him.
Mr. Mansfield saw the certainty of the collu-
sion being introduceil into Uie argument: to
obviate it, he used three cases, two that had
been mentioned before, and a thurd be intro-
duced for the purpose. The first, io the or-
der of time, was the case of Keon in my
lord Coke, which whoever reads, will see
that the only point determUied, and the only
point to be determined in that case, was,
that it was not oompetent for the psrty to
traverse an offence that had beoo found against
biro: all the rest is that sort of lucubratioa
which adorns, and in many instances improves,
the reports of that learned juilge of the deci-
sions of his own time. And this is the use that
is attempted to be made of this part of the argo-
ment; that it was founded in falshood, and
therefore was U|)on the face of it collusive.
The falshood was, that the party was in a oon-
dition, as it turned out by subsequent enquiry,
to have made a better case than he did make ;
and from thence it is Io be taken for granted,
that of purpose and design he abstained from
making that case that he did not make. Yodr
lordships know belter the nature of business,
than from such a circumstance to infer a fraud :
the best- bottomed causes often miscarry for
want of that evidence, without which they can-
not be supported. The next case, that of Mor-
ris and Webber, from Moore's Repoits, seems
to me to be still less material or useful to tbo
purpose for which it is produced : that was tb«
case of a divorce * propter impotentiam virL'
The parties marrying af\erwar<is, fruit of each
of these marriages was the birth of children.
Perhaps it may occur, tliat that circumstance
did not afford a very decisive and conclusive
proof of the negative of the ground Ufion which
that decree was pronounced : it is not an im-
possible case, that what hail happened might
happen, althouijh the divorce was perfectly
well founded in point of fact. But suppose it
were taken for grante4l, that the child must of
necessity be the ifisiie of a man who had been
divorceil * propter iinpotentiam ;' yet that it
must of necessity l»e inferred from thence, that
this sentence was collusively obtained, remains
to be made out. I ctineeive that tbis case, any
more than the one that prece<led it, does not
afford a col(»ur to say, that the question of collu-
sion and the com|)etency of going into the quea-
tioo of coUufioo occurred to the court ia eithet

16 GEORGE III. Trial of the Duchess o/Kingstcm, [491

alone he it interested in doing, the party, wh<
would otherwise be prejudiced by sucb a judg-
ment, is constantly and daily permitted to say,
that this was a judj^ment obtained by covin :
this allegration is usually formed into an issue
and if that issue is determined in bis fafoor,
though the judgment stands as to efery othfi
person, quoad him it is avoided iu the manner wi
are ready to avoid this sentence, ft was said,
that the reason why creditors are permitted so tc
avoid judgments set up to their prejudice bj
executors or administrators, who seek to covei
effects in their possession by false judgmentf,
is, because these people cannot be relieved in
any other form ; it cannot be referred to aojf
other court. 1 am perfectly content to tain
that as the principle ; then it remains in nrdei
to support this distinction, for the learned ^eo-
tlemen among them to make out, that it ii
competent to his majesty to make himself a
party to this suit in the Spiritual Court, or to
mstitute there by his proper officer, a new suit
to get rid of tins sentence. The ^eutlemeo
have not attempted it ; it would be ndiculoiis;
and I fancy 1 may presume it will not be at-
tempted : it is not competent, much lets ne-
cessary, for the king or his law-officers to ^
into that court for a purpose so idle as tha.
Taking this then to be the reason why it is ad-
mitted in civil causes to creditors to get rid of
lodgments, by which they are attemoted to be
mjured, by shewing that they werecdlosiveaud
fraudulent, does it not follow by parity of rea-
son, that it is equally |iroper that the same thing
should be done here, supposing that your lord-
ships should for a moment forget this to be io n
criminal cause, in which the reasons for so dQiog
are so much the stronger ? Another distinctioa
between this case and that was attempted. Ic
.was said, this is not the case of a third person
complaining of an injury arising by a sentence,
and wishing to avoid it so far only as it affects
him ; but it is a suit instituted for overturning
the sentence. I apprehend it is not so ; we
contend for nothing but to lay this sentence oat
of our way, as applied to the present subject;
just as you lay out of the way a judgment be-
tween A and B where it is attempted to bt
used to the prejudice of C. Af\er your iord«
ships have convicted this lady, if in the retolt
of the enquiry it should be proved, that sack
is the justice of the case, 1 do not know that
the verdict or the judgment iu this case will bt
evidence upon an enquiry into the same fact!
for another purpose. Ir the result of the pr^
sent enquiry is understood to establish tbt
marriage, and to nullify the sentence, it is be*
cause the sentence is in its nature, when H
comes to be enquired into, really and truly nail
and void : not because that such is the efllect vi
any operative power and force that belong tt
your lordships' convictiou. This is not a pro-
secution for the annulling of that sentence;
this is a prosecntion to subject the party to tbt
punishment which is by law due to the odfend
upon her : it cannot be attended with any other
poMible Gonieqaeoce. Upon tbt Mme gwoid

491]

of these two cases. In the case of Hatfield and
Hatfield, a man, who, under colour of being (he
husband of the woman, had taken upon him to
release some interest which she was entitled to,
and he claimed to be entitled to in her right,
and the question turned upon the effect of that
notion: there was aflerwards a sentence be-
tween the parties against the marriage; whe-
ther the means to obtain it were fair or foul,
fhiudulent or otherwise, we are lefl to guess
at. Your lordships will not, I presume, adopt
all the printed reasons, good, bad, or indif-
ferent, that are offered to your lordships at the
close of your printed cases. Your lordships'
predecessors in that case could do no otherwise
than thev did : they saw, that the decision in the
court below was right,and upon that ground they
affirmed the decree. Now, what was the thing
decreed, and the point in controversy between
the parties ? The man, while he passed for this
lady's husband, took upon him to release an
interest, which it was not competent for him
to release, whether he had or not that character,
the subject of the release being a legacy, left
to her under a will, in such terms as operated
to give her in equity a separate interest. I
need not contend, that in a separate interest of
the wife the husband caunot controul or de-
prive the wife of it by any release of his. A
court of equity had decided against the party
claiming under the release, which, according
to the aettled doctrine of courts of equity, It
was equally bound to do, whether the party
releasing had or had not married the woman
whose interests were to be affected by it ; and
the question (husband or no husband) was just
as foreign to the merits of that decision, as any
thing that could be talked about in the cause.
Totally therefore laying out of the question
all that had been said upon the subject that
was not necessary to the decision of the case,
the House of Lords affirmed the decree of the
court, because they saw it had rightly decided
the only point in controversy netween the
parties. These then are the cases, upon the
ground of which, and upon the ground of
which alone, (for I have not been able to
collect a fourth) your lordships are desired to
decline doing that in this instance, which
we contend your lordships are bound in jus-
tice to do ; that is, to let us into the enquiry
by what means this sentence was obtained.
The gentleman, particularly, who made this
use of these three cases, could not forget the
familiar practice, which he is a witness to every
day of the year, of impeaching the judgments
of the courts of law, whenever thMve im-
peachable upon the foundation of iftnd and
covin. 1 1 never occurred to a court in which such
a question arises to refer the party who makes
a c«>mplaint of a judgment so obtained, to the
court in which it was obtained, or to direct him
to institute a suit to get rid of it ; he impeaches ,
it just when it affects him, and not further than
at it affecta him ; beyond that, it is a matter ^
of perfect indifierence to him, whether it ttands
orttfUas for tbt porpow of <hMog 4Mt, which

» .

Jnr Bigamif.

.. ntlcmnleil lo lie impetubed

hnv, it may ht iniuracheJ eitn'y where, except
ty ili« iiwtin, wlici may perhipg haii; jire-
(luileft t|jeiD«el<rn hy llieir codiIuci from iin-

Aly lorils, a* Ihere tre no aulhariiie* on ibe

line liiJe, it rcniaini fur a ninmenl only tu olt-

ifT'c, llist Iticre are oii ill i>ri lies on llie otiicr

■i>ie : «i Bpplinl In civil cues, two liaTe been

I I'litiuDeil. The p>od scnieorboib llie au-

KuiiM, (liiTtjcularly of nue, I should *ppie-

nii Fxtabliihes lliii propu«ilJ(in clear ol all

r.irureny; far, when in the case of the ac-

" •(pioitt CoriEtuDlia Phillipa, of f'amoug

■ miry, it nas ilclermineJ, lliil whatever ol>-

rumiia law. would he tufiicieni to overtuni a
loiUiiGeiii the Spiritual Courl, hut aoiic other ;

L — 1.1 ji^jg unagineJ tlial ibe propoailioit

li it ao much gtmi senae, that ill the
Id feel il and adopt it. The Scutch
M« ia by Ihe higlieal aiilhurily, and ihere the
tat naa tliat ii to he madii of a jud^meni in
wMbtT court ia ascerlained and limited ; It
«deB«e ; it ia strong evidence ; but il re-
n to be explained ; and alill more, it re-
H to be laid out of llie eaoe iu a cause like
■K and in a case like thai of Phillips, where
>W« (liated a ijTound to impute collusion and
Ibnd to il. In Philltpa'a caae, il was not per-
>kt(d ta bcr lo avail herself of ihal collusion
Odlbal fraud. Why? Becauie il was ■
hai of W own. Ilul the learned judg;p,
''hta Im Tcfuaed to permit her 10 impeach
MMMnce, mbich the had obtained by col-
MN and fraud, adds, according lo Mr, Ford's
•raMtipl oole, that, " »h ai£aiii"> a" olhert,
■htner ubjectiona would avoid ajudgnieiit Id
tfMHt of law, iruald hi: sufFicienl lo orerturn a
Mace iu llie Ecclesinsiiral Courl." We
44rc 10 ofcrtuiD this scnlence upon no oilier
inpoda, than aentcncei and jud^menls in
<«Ma <tf law are every day overliimed hv ;
Uvj Aosl cnulioue lo nc so oserlurned Id Iu-
aa hiatf aa ibere ronllniies to be any ni-
ls hi Uulli and justice, in the decisions of
a «f judicature. I dn apprehend, that
JfNi Ii>rdilii|is will not think, that 1 take on
' — nfwr fretdom wiih the lenience, or the
Bl wboM teulence it is, by desiring that
IT lordabip* will by-and'by ibrm an opinion
I *(lhepufil3r of their proceeding hy ibeapect-
[ ^fl lltal we sUftll give you of tbem, when we
I *«i»*lo slate and |)mTe the means by which
I <kit atntencc wia iirociired ; and then perhaps
I )nr Wdshipa will ire no reason jVir raising it
I llan tlia kvcl uf oilier courts, on which we
t lo leave il. Wllb your lordships'
, 1 would supply an omiasioii I
U In have atated in iu proper place ; the
k AaafBAbiuaandCrulchley. AMrs.Hobins
'nimmccd BD action of dower, claiming a
.■fol tbe aunoeaaiou lo her supposed bus-
-i Nt. Itobioa: ibii lady bad been claimed
,.| >'Wih>iiil«oraair William tVolseley. Sir
|M|^hB, afM ibe suppotiiion thai abt waa his
^^B&M iuaiilaied a snil in the Spiiimal Court,

A. D. nm

of hei?"

probably wiih an inltDlion tn gpt rid of
charging her with having commitled adiillery
with Robins: Iu ibe course of ihal enquiry in
Ibe Spiritual Court, it caroe out to the sallslae-
lion of Ihe Court, that she was ibe wife of
Rohinsand not of sir William. Thissenlencc
was introduced in pleading in this cause of
dower for the purpose of repelling a denial oa '
ihe pari of the heirs of Mr. Rubins, that sba
bore any relation to them or to their anceslor.
To that replication there was a demurrer,
which broDghl under con«ideraliun of ibe court
of CommoD Pleas the elTecl of iliia senlpnoe so

(leaded. The opinion of the courl of C*inmoii
'leas was lo allow that demurrer ; aud lhnui;h
ibe paint decided may perhaps he only ihit,
that ibal sentence could nnt avail Ihe party in
Ihal form of pleading ; yd I conceive ibat
point must be rery erroneously decided, if Iha
lenience were ol the description which baa
been allempled to be passed upon your lard*
ships : for if it bad been uodcrstood to he cod'
clusiie and precluisiTe of all further emjuiry,
most undoubtedly il would have been a propel
subject to be introduced in pleading as a bar la
any farther enquiry. Your lordsbipa, by look-
ing into the only report in print of thai casa
(Mr. Serjeanl Wilson's) will Bnd, that the
learned judges of the Common Pleas, who de-
cided it, seemed to be agreed in thinking, that
it was very far from an eslahlished point, thai
Ibis scnlence was cooctuslve, Ihal ibe qoesiioa
could only be Irietl upon the issue ue unyuea
accouple, which your lordsbijiB know lo li% iIm
only proper iasue io a queslioD of dower, ami
that issue must be determined by the bishop's
cerlilicalc. Now we aretuld thai this senteiicv
is just eqiiivaleot lo the cerlJGcate of a biihop:
Ibis was so far from being Ihe opinion of that
court, thatthey leave to the bishop lo judge liir
himself, what regard he would pay to Ibat seu-
lence on the point which he waa to cerlily.

Dr. Harris. Sly lords j It would ill becoma
me at this lime, alter the points which hava
been proposed have been su fully disouised by
the gentlemen who have gone before lue, to
take up much of yuur lordships* time.

There are two questions, as I underslanit,
before your lardsbips.

The first of them is, whether a sentence in a
cause of jaclilalion can be giten in evidence, as
an abaolule bar to a pruseculioa by the kingF
and the other is, whether, on suppasiiioa that
a seoteuce in n caiice ofjaclilalion can lie giieo
in evidence, it will attbrd a coniplele delence,
so Ihal no proofs whatever can be adiniiird
at^erwards in order to countcracl and inipeaoh
that aeotence ?

How these qurttions come before your lord-
ships, wlielher properly or improperly, is not
for me lo argue. It isoul of my praressiun lo
say any thing about them ; bul as the gentle-
men on the other side bave been permitted to
slate them and argue on them, il is certainly
necesmry tbsi ibey should also he discussed by
the counsel i'or Ibe prusecuiiaa.

495]

IG GEORGE III.

Trial of the Duchess of Ki>igslo«

In reftard to the tint itur^tion. I shall not
trouble jrour Inrclships lnni{, becBuse ihe (lis-
Guuiun nl' ii reUle* |irin«l|>ally In the (iracljce
of courts of liir, but iiliiU more (lurlirulRrljr
attach oiywlf to the conniUrtlion of ibp se-
' eonil ; bb I (hBll in flo dninR- liate no n[i[iorlu-
' nily to lay ft woni or two io riibwci' lu uhat
'tliegFUllemen haie urKed on tli^ other siile,
who are ofihe same iirofFB^inn, anil iimclise in
the Biime courts »bere 1 lioTe tie honour to
alien J.

In respect lo Iha first qnealinn, whether a
■enlence of jactitation is an absoliile bar, and
can be nflereit as such to a suit at ihe prnaecu-
Hoa of the kiiiir, it is lo be olnervfil, that an-
cicnily the whole cos^iznnce nf mnrria^, iviih
llial of IhecTimea Btteudini; it, wb« *esleil In
theecclesiaBtical courts : but those courts hein;
•ilher remiia iu the exerlion nf ihrir jurisitlc-
lions, or, more probably, waalini; irawer lu in-
flict an adequate jiuDithtneat Biimcient In stop
tlieiirowthof Ihe iTicreasinfr evil, Bill] Ihe legis-
lature, for conmltutioiiBl reisons, liring hoih
unwilling and unable to iniest ihrm with more
■ulhorily than they then hail, ihe aid of nsr-
tiamenl became nbsutulcly uecesnry ; and the
Malute of James Ihe 1st, on vhich uie prisoner
stauds indicleil, was aceordln|i made; by tvhtrh
it was enacted, that if any person bein^ luar-
ried shall marry another, the former husband
or xife being elite, the nlTrace shall be lelony.

Before this atatule, the ecclesiaslical courts
bad the cof^izance of the crime of Ink-
ing » sf^conil wife, or a teconil hiislwnd,
'whilst the lirst wife or first husbnTuI was
litiag; but the atatule, an I undenlsurl, lakes
that branch of the jiiritiiliclion, namely, the
|H>wcr of inHicling' any puDishinent wliaterer
<m a person guilty of poiyifBrny, eulirely
from the eccletiasiical oouris; insomuch, ihi

■ if a

e Iron

■n Eccleeia«iic»l Court in nnlrr lu cull
pertun lo nrcount fur hii;amy or polygsi

' (whiclierer it may be Icrmed,) the panv ci

niiy;ht 'ihtaio a pruliibition from llie JHdKts of
the leiii|inral courts lo slop such a suit, in ihe
■ame manoer a* a prnhihiiion may he uhtained
in case of a pronecution in an licclesiastical
Court for peQury nut ciiDiniittrd in that court,
or for any other crime punishahle by a ststule,
Now, my lords, it is etirleiil, that the one court
has lost what the othei- has (rained, in respect
lo the offence of bi^my ; sii that llie tcuipural
court, or rslher your lordnhipt, are ehle lo
juJi;e of bitcamy, slid of every rci-lMia>tical
matter incident to that branch of spiritual
jurisdiclign. It may here be ohterred, that
• jactitatiou cause is deacrilod io oar houkr
af praclioi in b« a ^uuii detiiiiintnry suit ;
and must certainly it is su, and iiuihing more

- when a person hl)ell*it n^niiist in jaciitatiot
Gonfesses the Imsslinif; as, when a man cilei
a woman fur Loamint;, and slie a c know ledger
' Ibejaclitaliun ; for llie Ciiuse enili
Sirtctty of a defanialnry intiire.
mean to deny, when ihe dflciidnnt undertakes
to justify, that the cbuir then becomes truly I legislature.

malrimonial ; fur the sentence will then Amw*-
sarily be, either that Ihe pailirs are man ami'* _
Hife, nr thai the plaintilT'a or parly asnii ia^l
IVee from all matrironnial contract
nobis conslare poiuit,' ur as far as to us as yfC
apjiears. But though a senteoce in theaa
words may liaie treqiirntly bei-n adjudged [at
in Jones and How, Csrihew 323 — ami in CIcwT'
and Bathurst, Hirange 9G0.] In be binding a
the temporal courts in cases of pruprrly, till
rerersed ; yet it by "o means Ibllows. thai
»{uch a sentence can amount to an Bci|Uiltal of
ibe plaintiff from havinif any farther etideoee
brought agninst him, the) cry words, > as far aa
to us yet appears.' implying' the ci

duced in Ihe proper court. Tiie wnnis nf ih*
sentence speak sutficiently for Ihrm^Ues;
there is no occasion to hare recourse lo aiitho-
rilivs from boohs. Let it be sU|i|>o>e(l for a
moment, that the ancient juri^^dictinn remained
in the ecclraiK^ticai courts, and that they poft-
sessed their foinitr power ; is il po'sihle tiO
cunceive, that a scniei'Ce like the presrnt, pro-
nooncing a woman to be a spiiisler, as fnr aa in
the couit as yet appears, could be a bar tu a
suit in the same nr in another ecctrsissiiosl
court SKainsl the same woman Ibr polygamy.?
If it could be a bar, it would amount to an ne-
quittal, till the sentence in the citil suit had.
been reversed ; which would he anbiersive «l
justice, by making the commission of at
diicaverrd crime in one court a shelter at.
the punishme ul of that very crime in sdoiIim',
If the doctrine ouw conlendeil for should prtf
vail, that the aJferiuK of a sentence in jaclili<
tlun, proDOuncin; the parly agent free fra)
matrimony as far as yet appears, is an absola
har 10 a ciiminal proseculion Ihero wouM be i
opportunity on every indicimFut for polyjjaii
lu defeat the statute : (iir in the case of a w
man marrying two husbands, if Ihe 6rrt hM
band shouUI consent lo a collusire
wile would have uolhinc tn do hut tr
first husband into an eccleriiaslical court II
jactitation, if she apprehended a prosecHtia
on the statute ; and theu, either on coDfearii
of the boasting by the first hushani), or I
Ills faiKn){ to pro*e his marriage, if he and!
took the procf, a sentence would be ohtaiM
"which would inlirely defeat the statute. Tl
this House shnuhl ^^ire a countenance lo a di
trine of such tendency, is nut lo he imaninC
It would he so far to restore the ' ' """^
courts to their I'urmer authority, as to put ill
the power of eiil disposed prrsons tn use tilt
courts to Ihe defeasance nf the statute, HtUbt
giving hack lu the eccle»iastioal courts a ji
risdietion to punish the crime of polygi
which would thus go unpunished : il wouMl
lo render Ihose courts io ihis teepecl liuf^
without affiirdins; them anoppnrinilily of bi ^^^
useful ; and it woiibl in eftrcl he lo deslruf
law in ynur lordshi|>i>' judicial capacity, w hi
had tiH-inirly on ihe inaturest cnnslderai]
iblished in this House u a puisf i

497]

for Bigamy*

A. D. 1776.

[49S

It wonid now be improper for me to detain
jour lordships any longer on this question,
which has been so ably and fully discussed al-
ready ; and I shall trust, that your lordships
cannot be prevailed on to declare the sentence
in jactitation conclusive upon this high court,
or to suffer it to be read judicially as a stop to
aoy evidence which may be brought as a proof
«ir the marriage of the lady at the bar with Mr.
Hervey, now earl of Bristol.

But on supposition that the sentence may be
permitted to be judicially read, it may be ne-
cessary for me, in contradiction to what the
geotlemen of my own profession have asserted,
to trouble your lordships with a word or two in
Ibe briefest manner I am able, in order to shew,
that evidence of a particular kind may be given
in all courts, and at all times, to rebut a sen-
teoce in jactitation in disfavour of matrimony,
for the purpose of relieving an injured party
lod of punishing the guilty.

It is a general rule, which is not to b^ denied,
that respect is due from one court in England
to the decisions of another, and that comity is
due to the decisions of all foreign courts ; and
it might be more accurate and more strictly
true to say in general, that one court in £ng-
hod is bound by the judgments and sentences
tf auother ; but the generality of this rule does
■Qt exclude an exception, which in reality. af-
fonls a proof of its generality : for, under cir-
coBistances, evidence of every sort, parole as
vHI as instrumental, may be received in one
coflrt to affect a sentence in another. Fraud in
aiiDgle person, and cullnsinn, where there are
(vo or more, may be given in evidence in the
nne court in a different suit, ur in another
eoflrt, to affect the parties to a sentence ; and
tf course to affects the sentence or judgment it-
Klfin some degree.

It is true, that by the ecclesiastical law, a
Kolencein any case obtained by collusion may
be declared void in the same court in which it
vat pronounced, by means of a special suit for
that purpose \ and most certainly at the suit of
aperaon having an interest, who could not eveu
bare intervened at the time \ihen the suit was
Mdiog ; and such was the case of lady
Frances Meadows, who had no interest in the
Trars 1768 and 1769, when the suit of jactita-
tion was pending : but it does not follow, be-
cauie a sentence obtained by collusion may be
iaauUe<l in the same court where it was pro-
MODced, that sucli sentence may not be im-
peached by any means whatever in another
cisrt.

iHhall not, in proof of what I hare advanced,
detain your lordships with a repetition of the
pfrticulars of Fermor*s case, as reported in the
tM part of Coke's Reports. 1 shall only ob-
itive, that it was a case depf ndiug in the Court
<f Chancery, in the 'l-Uh of Elizabeth, before
■ir Thomas Egerton, the then lord-keeper, in
Hicfa Richard Fermor complained, that Tho-,
Vai Smith the defendant was his tenant, and
bad levied a fine with proclamations, in order
to bar him of bis inheritance, by covin and
VOL XX.

practice. The lord-keeper, considerhiff on
one side the mischiefs which might arise from
such practice, and on the other side consider-
ing that fines and proclamations are the gene-
ral assurances of the realm, referred the case
to the two chief justices, Popham and Ander-
son, who, ^fter a conference, thought it neces-
sai'y, that all the justices of England and
barons of the Exchequer should be assembled :
the}' assembled accordingly, and it was at
length resolved by the two chief justices and
barons of the Exchequer, except two, that
Richard Fermor was not barred by the fine
with proclamations. The lord-kee|)er, sir Tho-
mas Egerton, commended the resolution of the
judges, and agreed with them in opinion.

The precedents and reasons, on which the
above-mentioned opinion was formed, have al-
ready been ably related, and are well known to
some of your lordships : it may suffice on my
part to add, that a fine, the most deliberate (for
it is five years in completing) and of course the
most solemn of all judgments, was not deemed,
in the opinion of the lord-keeper and ten of the
judges, to be of weight aulEcient to protect a
colluding party; but was suffered to be im-
peached by the admission of evidence in ano-
ther court than that where the fine was levied,
in order to afford relief to an injured man.

It is said by lord Coke in the same Report^
that all acts ecclesiastical at- well as temporal
shall be avoided by fraud and covin. And in-
deed if one temporal court is boodd in justice
and law to pay no regard to the judgment of
another temporal court under the circumstances
above described, can any reason be given, why
the sentence of an ecclesiastical court in suob
a case should be treated with more respect by
the temporal judges, than they are obliged to
pay to the judgments of their own courts P

But to the honour of the temporal courts it
must be said, that, as far as it is in their power,
they lend their aid to the ecclesiastical courts
in case of covin and collusion, by permitting
the ecclesiastical courts to try such fraud, even
when committed in the temporal courts, as inci-
dental matter.

The case alluded to is in Moore's Reports,
page 917, Lloyd and Maddox.

Air. Lloyd a legatee sued Maddox the exe-
cutor of the deceased in the Spiritual Court for
his legacy. The executor alleged, that all
the testator's effects had been recovered from
him the executor, in a court of common law,
by a creditor of the testator. The legatee aU
leged in his turn, anil undertook to prove in
tiie ecclesiastical court, that the recovery at
common law was in consequence of collusion
or covin between a pretended creditor and the
executor. And, upon the admission of this plea
iu the ecclesiastical court, the executor applied
to the temporal court for a prohibition, which
was denied.

And from this it is evident by necessary in-
fercuce, that the temporal courts must have
deemed themselves competent to judge inci-
dentally of covin or collusion committed in a

2K

499]

16 GE0B6E HI.

Trial of the Duckets of Kingston,

[SfX

spiritual court, in order to relieve an injured
party or suitor in a temporal court.

When this liberty taken by one court with
the apparent judj^ment of another, under cir-
cunaetnncesi comes to he considered, it seems
to be founded on the strongest reason : for when
a judjBfment has been procured by a collusion
of parties, thou^^h it must stand on record, and
may not, 1 grant, be actually expunged or
taken from the file, but by the court in which
it was given ; yet it is certainly a mere nothing
to those, who, not being privies, can shew it
false and covinous. It is a sentence in which
the judge- had never an opportunity of doing
neal justice — and is undoubtedly, what it has
been justly stiled by a writer on the civil law, a
stage- play, a protane mockery, or any thing
but a judgment. It is not to the disrepute, hot
to the honour of a court, as well as to the bene-
fit of the public, that such a fraud should he
detected. The upright judge must of all things
wish it. — And confident I am, that to discofer
such a profligate proceeding (from which no
human wisdom can protect the greatest judicial
abilities) could never be consti'ued into a breach
of comity between one judicature and another ;
but, on the contrary, must be construed by the
deceived court as a vindication of its purity, and
a rescue from an attempt to load it with dis-
credit.

I must now own, my lords, when 1 was in-
formed that doctors. of the civil law were, by
the permission of your lordships, to attend on
the part of the lady at the bar, and a brief was
given to me on the part of the prosecutor on
that account, that 1 was apprehensive of what
might he quoted from such miscellaneous
Imoks, as the digests, the code, Rinl the decre-
tals, in favour of collusion, and to shew how
honestly it might l»e practised under particular
oircumstaoces. Nothing however ot' this kind
has been urged ; and I hate not ni\ self, from
any inspection of the titles and text of the civil
and canon law, de coliusiune detc^cnda, which
treat principally of coilutiiic causes between
masters and slaves, and bet\%een certaia of the
clergy in order to detraud the laity, hopii able
to gather any other idea than that collusion be-
tween parties to a suit is a very hi^li ofience ;
and such a one, I make no doubt, for which
colluding parties might now be articled a);ainst
in the ecclesiastical court, where ihe iitsuit was

' sententia non prodest adversns tertiam; ve
' quia tertius erat citaodus, et tunc victori uor

* prodest sententia, etiamsi earn obtiooinei

* aincer^.'

And when an executor [for example]] de-
sirous of proving his testator*s will, omits tc
cite one among others of the next of kin ; foi
in that case the omitted |)erson may, if he thinkt
it for his interest, oblige the executors to provi
the will de novo at a subsequent time, the sen-
tence establishing the \s ill under the process
by which one or the next of kin was omitted
being as to him in the true sense of the eZ'
pression, ' Ues inter alios acta.'
The same author proceeds by adding,
* Vel non erat citandus, quia causa agebatai
'cum legitime contradictore ; et tunc licet, si
< sententia fuisset lata sine colhisione, tertic

* noceret ; tamen, si fuerit lata per cutlusiooem,

* non nocebit.'

This may he explained by the following sup-
posed case : if an executor to prove his testator*i
will should cite all the next of kin regularly,
but should collude with that next of kin tc
whom the management of the suit was intrust-
ed, and prevail on him to feintplead, and not put
forth his strength on account of some private
barg.\in, and by this covin establish the will ;

J^et, though Ihe sentence in this case would
lave bound the legal contradictors, who bad
been all called, and also all other persons what-
ever, if there had been no collusion, it shall
nevertheless not hiod the injured part of the
legal contradictors, on a proof made of the
coucert<*d fraud.

It must lie allowed, that these writers have
not (as far as I have been able to observe) made
mention of the place or court where a sentence
collusively obtained is to be set aside ; and if an
actual celling aside or total reversal is iiioan.t,
there is no doa)»t luit that this must be done io
the same court where the parties colluded, and
in no other.

But if it is only asked, where and in wbtt
court evidence is to l)e leceivcd to relieve an in-
jured person, who \«as not a parry to the collu-
sion i* My answer is. that it is plain from these
writers, as well as from reason, that it is to be
received in every court.

The courts u\' civil law, known to these
writers, hear in the same court and under the
same jurisdiction causes of iirnporty, aod alM

offered, and t^e punished at discretion by eccle- I accusations which affect the tile of the accused,

siastical censures. But a paiiicular discussion
of the nature of the offence committed by par-
ties colluding in a cause, how that collusion is
to be treated when discovered, and what opera-
tion the discovered collusion will have upon the
eentence, is rather to be expected from later
writers, and such authors as Alenochius in his
Consilia, or Scaccia de re judicatfi, thau from
the laws in the text of the civil and canon law.

And these authors agree in general in saying,
< quod lata sententia p^r colfusiooem habenda
« est pro Don-teDtentia, et quod aliis non nocet,

* quamvit, ■uUat& collusiodei noceret. Nam

• fact coliMione ctimadfemrio [says Scacda]

exactly in the same manner as our Admiralty-
courts in £n;^1and did before the 27th of llenrj
8. And therefore %>hen Scaccia and other wri-
ters, who entertain the idea of the same court
having both civil ^nit criminal jurisdiction, say
that a sentence obtaineil by collusion is to be
regarded * pro non sententia/ their meaning
fairlv taken must be, that such a sentence
would be effectually avoidable, or rather dis«
regarded every where, on a proper proof maile
«f the fraud by which it was obtained.

I am aware that the case of Mayo aod Brovfl
was quoted by the advocates on the other ridCi
aiaJeleiDitMice, io which the present '

Ml]

for Bigamyi

A. D. 1116,

1509

•f the Praroipitire Court, lir George Hay,
wbcMe decrees will always hafe g^al weight,
was of opinion, that be could not in his court
receive evidence of a sentence having been ob-
tained by collusion in the court of the bishop
of London.
Tlie case, in brief, was as follows :
One Bin. Ailmer died intestate, and Mr.
Brown, as her husband, obtained the admi-
sistratioa of her effects. Lady Mayo bad
proved herself to be the daugrhter of Mrs. Ail-
oper, and had cited Brown to brinff in the ad-
Biinistration, and shew cause why it should not
be revokeil, as unfairly obtaiued. Brown proved
kis marriage to Mrs. Ailmer beyond a doubt ;
kt lady Mayo then alleged, that Brown had
Wen married to one Ellen Cutts, who was liv-
isgat ihe lime of the fact of the marriage of
Bruwn with Ailmer. Brown answered, that
Ellen Cutts did jonce make pretensions to biro;
kat that in a suit of jactitation, brought by him
against her in the court of the bishop of London
Id 1732, she was enjoined silence by sentence ;
nd be was pronounced free from any matri-
BOiiial connexion with her. To this lady Mayo
Rplied by plea, that the sentence had been ob-
tuoed by collusion between Brown and Cutts,
isddesireil to be suffered to prove her alle-

|UMD.

Many of the arguineuts were then used
which have been made use of on the present
•cession ; but the judge did not, as I under-
ttiodj reject the distinction between receiving
eridence in favour of an injured person, and
kisg able to annul the sentence, and absolutely
<leoy his authority to admit lady Mayo's alle-

Siion, but only appeared to make choice of
s method of ^ti»ppin^ the cause in the Pre-
ngative Court till lady Mayo had applied to
Ike bishop of London's court for relief: and in
M doing be laid great stress on the note in the
Mrgin of Strange's Reports, page 081, where
it it said, that the chief justice of the Common-
Pins, in tilt? case of Prudharo and Phillips,
kdJ t s«*ntence in the Ecclesiastical Court to
be ffliiclu^ive, and would not receive evidence
bffraud or coliunion in obtaining it. But it is
•vident from the very able manuscript note of
the use of Prudbam and Phillips by the late
Hr. Ford, whose learning and accuracy are too
veil known to stand in need of any encomium,
Ib4t the only reason why chief justice Willes
refund to suffer 3Irs. Phillips to relieve herself
kj giving a proof of collusion in the bishop of
LDO'lon*s court, was, because Mrs. Phillips
kerself was a parly to that suit in the Eccle-
SMtical Ctiurt : so that in truth and fact the
decree made in the Prerogative Court in Mayo
Md Brown, Bp|>ears to have been founded more
M the uncertain authority of the note in the
■ttigin of sir John St range's Iteports, than on
•av other precedent.

Now if m suggestion of fraud in a single per-
Mi, or collusiou between many, affords a foun-
ditMNi for a court, in which causes of property
•ilj art deci«led, to receive evidence that such
hid or GoUmiMi was used in obtainiog a sen-

j fence in another court which has jurisdiction
in cases of property, it becomes necessary, d
fortiori^ that a court, held for the punishment
of criminals, should admit evidence to shew
that a fraud of forgery has been committed in
a court of civil junsdiction: and there are
strong instances in the law of England to shew,
that civil judgments have been regarded not
only as of no weight to exculpate in criminal
prosecutions, but on the contrary as aggrava-
tions.

The case of Farr in Kelyng*s Reports is one
of many strongly to this purpose.

Richard Farr, having sn intention to rob the
house of Mrs. Stanier, told an attorney that
Mrs. Stanier was his tenant, and he could not
make her quit his house: the attorney pro-
ceeded regularly in a cause of ejectment ; and
one Eleanor Chadwick, an accomplice with
Farr, having sworn falsely that she had served
Stanier with a copy of a declaration, judgment
was obtained, a writ issued, the woman was
ejected, and her house was robbed by Farr and
Chadwick, who had got legal possession. Fair
and Chadwick %vere afterwards indicted at the
Old- Bailey ; and on proofs given of the facta,
it was agreed by lord chief justice Hyde, sir
John Kelyng, and Mr. Justice Wilil, that
though the prisoners made use of the law,
and the officers of the law, yet as this was
done ' in fraudem legis,' the course they hail
taken was so far from excusing the robbery,
that it hei(<htened the offence by abusing the
law. Kelyng's Reports, p. 43, 44.

There is a sinele case on the other side, the
King against Vincent, reported in Strange,
431, where it is said, that Vincent was indicted
for forging a will of a personal estate, and that
the forgery wns proved at the trial, but that
Vincent having produced the probate, it waa
held to be conclusive in support of the will.

This opinion is said to have been given in the
8th year of George 1, and no subsecjiient casa
has been quoted in support of it ; but numbers
of other cases have been quoted by the counsel
against the lady at the bar, where the unfortu-
nate prisoners have been found guilty of forg-
ing wills, in part upon the same evidenca
(namely, the probate) on which the very ibr-
tunate Mr. Vincent was ac«|uitted.

Among others cited from the State Trials and
Session- papers, the case of one Stirling baa
been mentioned ; and a stronger to shew the
alisurdity of the doctrine huld in the King and
Vincent could not well be imagined. — One Mra.
Shutter, being known to have money in tha
funds, Stirling forged a will for her. He gave
considerable legacies to several, but to himself
he gave 30/. only as executor ; for it was suffi- -
cient for his purpose to get possession, in order
to make her whole fortune his own. He ob-
tained a probate from the Prerogative Court,
and endeavoured to receive her stock at the
South -Sea- house, but was discovered in th«
attempt, and indicted for the forgery. The
probate was produced in court, and according
to the doctrine in the King and Vincent, the

603]

16 GEORGE III. Trial of the Duchess ofKingsiofif

[504

sight of the probate should have iDstantly oc-
casioned the acquittal of the prisoner; for
though Mr«. Shutter herself was alive, and ap-
peared in tlie coiirt, yet witnesses must have
lipen necessarily produced to prove her iden-
tity ; and such evidence, according^ to the
doctrine in the King against Vincent, ought
not to have been admitted agaiust the probate,
ivhicli ought to have been conclusive. The
prisoner Ii owe ver was convicted.

But admittini; for a moment, that the case of
the King and Vincent was legally determined,
It does not seem to apply in the present instance,
unless it could be shewed, that the prosecutor
offered to give evidence of collusion in ob-
taining it, and was not permitted so to do ; for
it was said by one of the civilians, that the pro-
bate issued in that case by a decree of the Ec-
clesiastical Court, and not in common form.
If it did 80 issue, it is to be presumed, that such
decree was made l>etweeD parties duly adverse,
till the contrary is made to appear ; and the
contrary was not attempted to be proved. And
It must be confessed, if the parties to the suit
in the Prerogative Court were truly adverse,
that then the fraud either was or might have
been in proof before the ori(;inal proper court :
■nd this might have afforded some colour for
saying, the roan shall not be put twice upon
his trial for the same offence ; though such an
argument could only have l)een specious ; for
when the question in a court of civil jurisdiction
is, will or no will, deed or no deed, and a for-
gery is detected, the person who committed
that forgery must be tried for it in another
court and by another proceerling, or he will
never be punished as ihe law of England
directs. .

It may be here proper to observe, that no
one case has been mentioned b}* the gentlemen
on the other side, where, in any court of civil
or crimiual jurisdiction, a proof of collusion in
another court had been offcrrd by a proper
person, and not received or reji-cted. The case
of Hatfield and Hatfiild in the House of Lords,
in the year J 7 27, has been answered by all the
tu)unsel who have preceded me, by shewing
that collusion was not at issue in that'case. And
in the cakse of Kenn, 7 Coke, so much insisted
on by doctor Wynne, there is no mention nor
the least hint given of fraud, covin, or collusion.
In that case, Christopher Renn had issue
Martha by Elizubeth Stowell ; hut he after-
fvanis obtained a sentence in cause of nullity
Against Elizabeth Stowe!l, as having been mar-
ried to her * infra nubiles annos;' and the
marriage was pronounced void in an Ecclesi-
astical Court.

Martha, the daughter of that mariiage, in
order to make good her title to her father's
estate, was afterwards permitted, and probably
through some mistake or haste 'm the court of
Wards, and without hearing counsel, to give
evidence that Kenn and Stowell her father and
mother were not * infra nubiles annos* when
thev intermarried. But according to bird
CoM'f Report, the court of Wards agreed,

that as tbe ecclesiastical jodge had decreed the
marriage to be void, his judgment should be
credited, altliough the parties were proved to
have been of the age of consent, and although
tbe foundation was false on which the sen-
tence had been grounded ; inasmuch as tbe
court of Wards would not examine into tbe
cause or reasons of the sentence, whether true
or false.

From all which nothing farther is to be col-
lected, than that a sentence in the Ecclesias-
tical Court is to have full credit given to it as
long as it subsists unrepealed ; and that it is
not to be overturned in the same court where it
was given, or by any other, on account ot* error
and mistake in law or fact ; and this is certain
hw : but it is to be observed, that the parties
divorced had been long dead liefore the suit was
commenced, and that there is not the remotest
hint or suggestion through the whole ease,
that the Ecclesiastical Court had been deceived
by any fraud or collusion between the parties
litigant.

As to the case of Prudham and Phillips, tbe
counsel for the lady at the bar were certainly
led into a mistake by the note which I have
already mentioned, inserted in the margin of
Slrangc's Reports, page 901, and were not
aware of the note in Mr. Ford*s manuscript,
which is of undoubted authority, and from
which it appears that one Mr. Prudham, as a
creditor, brought an action of debt in 17J7»
against the well-known Mrs. Teresia Constantia
Phillips.

Mrs. Phillips gave in evidence her marriage
viith Mr. Muilman. ^

Mr. Prudham produced a sentence annulling
that marriage, in a cause of nullity, on account
of a prior marriage with one Delafield ; and
this Mr. Prudham*s counsel relied upon as con-
clusive evidence of the nullity of the marriage
with M oilman ; — and so it was agreed, unless
the defendant Phillips might be admitted to
shew fraud in obtaining the sentence, and so to
avoid it, as judgments are daily avoided, by re-
plications of fraud.

** Uesolved, on great delmte, that the ecclesi-
astical law was part of the law of the land, and
that sentences by their judges were in matten
of spiritual jurisdiction of equal force with
judgments in courts of record and i;) courts nl
equity : but that whatever objections would
avoid a judgment, the same would be snifi*
cient to overturn a sentence in the Spiritual
Court, but none other. That fraud used in ob-
taining judgments was a deceit on the Court
and hurtful to atrangers, who, as they eouh
not come in to reverse or set aside the judg<
ment, must of necessity be admitted to aver i
was fraudnlent.

** But that Airs. Phillips had l>een a parly if
the cause in the lilcclesiastical Court, am
whether she was imposed upon, or joihcd ii
deceiving the Ecclesiastical Court, this is ooti
time or place for her to redre&s herself.'*

Now, although Mrs. Phillips was not in thh
case allowed to allege, that the suit in tb«

505]

far Bigamy.

A.D. 1776.

[506

Eccleuutical Court annulling' Iter fnarriage
WAS collusive, yet the reason on which the
Court refused to allow her so to do, namely, her
harinif been a party to the collusive suit,
amounts to a full proof, when joined with the
other doctrine laid down by the Court and re-
lated in the case, that any person not having
been a party would at all times be permitted in
a court of common law or equity to allpfife
fraud or collusion to have been practised to his
iojury in an ecclesiastical court.

On tlie whole therefore it appears beyond a
4oubt, from the instances which have been
(iven, that in civil cases a stranger is admitted
in one court to allege and prove in his defence
tbat a sentence to bis prejudice has been pro-
Boonced in another court by means of fraud
tad collusion ; and that a prosecutor in a
oiminal prosecution is constantly permitted to
do the same.

Takings it then for pfranted, that this in ge-
serai must be conceded, it only remains to en-
qaire, why evidence, if necessary, should not
N admitted to destroy the force of the sen-
teace in the present case, in favour of the crown
•Dil of the public, who were not parties to the
jictitation suit between Mr. llervey and the
iadj at the bar, and yet are interested, if it i«< a
crime to marry a second husband whilst the
first is living ; or, in other terms, to enquire
why a sentence of jactitation of all sentences
fbould be so highly distinguished on account of
iti worth and stability, as to be held forth as
•0 exception to the general rule, and as the
ooly species of sentence which ought to be so
hvoiired and honoured by being regarded as
conclusive.

That the proceedings in the Ecclesiastical
Court are oAen rather of longer duration than
ooold be wished, is not to l>e denied ; anti that
tbis principally ariiies from the number of pos-
sible appeals under particular circumstances
from the first hearing of a cause to what in
pnieral cases may be termed the last, is equally
true.

When a sentence [for example] given in a
ctase of jactitation, in which marriage was at
ame, has passed through all the stages of ap-
poil, the cause is still liable to be opened de
aofo in favour of matrimony, as if nothing bad
been done. Was tbis possible prolixity of pro-
ceeding, and were these opportunities of ap-
paliog, an impediment and safeguard asfainst
colluftion (as one of the doctors has gravely al-
leged them to be) I do not deny that a cause
ofjactitation must of nil causes stand fairest to
be the most immaculate and most free from
tbe stain of fraud. Rut, when it answers the
^pose of parties to collude, is it to be pre-
ened that those, who could begin a cause col-
Imifely, would scruple to carry it on from one
canrt to another, till they en me to the end of
^r jiNimey, if it was necessary so to do to
obtain their end? The truth liowovor is, that
ieveral appeals are not abNolutely necessary ;
*nd that, when there is collusion in a cause,
tee b either no appeal, or an ostensible one

only, which is always subducted within a con-
venient time ; and the gentlemen b^t know,
whether an appeal from the sentence relied on
in the present case was subducted or not. A
sentence in jactitation pronounced in disfavonr
of matrimony is defined to be transitory, and
not final ; and this definition seems to be found-
ed, as absurdities sometimes are, on a tenet of
religion. The religion 1 mean is that, which
aAer having been received in this kingdom for
a long series of 3'ears, was aAerwards and now
is with reason protested against. In this re-
ligion it is mointained, among other condemned
doctrines, that marriage is a sacrament, and
not to be dissolved: and ahhough it nearly
amounts to a certainty, that the rites of matn-
mony are not now quite so strictly regarded in
England as they have been heretofore, and that
his majesty's subjects of almost every descrip-
tion, trom the lowest to the highest, have %
shewed an utter abhorrence of this doctrine of
the church of Rome ; yet it is not to be won-
dered at, that the ancient canonists, who were
to a man of the religion I have just mentioned,
and had the framing of the code ecclesiastical,
should so fabricate or bend the law, as to ren-
der it the su])port of marriage by every possi-
ble method, and should lay it down as a maxim,
that a sentence in a marriage cause 'should
never, in their language, pass into rcmjudi-
cataniy. or become a final judgment, hut be
eternally open and liable to revision and rever-
sal, notwithstanding it may have been esta-
blished by appeal upon appeal, and even by the
judges of the common law in a court of Dele-
gates under the king's special commission, and
afterwards by* the lord-chancellor, who may
have refused a commission of review. Clarke a
Praxis, title 205.

To render the privilege of a jactitation cause,
in which the proof of marriage has been at-
tempted but not perfected, still more extensive,
the general safeguartl against perjury has been
entirely taken away in this species of suit; for
the puldication of the depositions is no obstacle
to fresh examinations, and new witnesses may
continually be admitted in favour of matrimony,
even after the former depositions have been in-
spected, and without any proof made that such
witnesses are lately come to the knowledge of
the producer ; which is a proof expected and
required in all other causes whatever, and a
rule never departed from.

(>larke, in his book of Pradico, is express to
this purpose, and uses the following words:
" licet generalitcr non admittuntur testes post
pnhlicationem, admittuntur tamen in causd
matrimoniali sine juramento, quod testes no-
viter ad notitiam pervenrrunt.*' Tit. 205. It
is allowed too in this species of cause, that not
only the party silenced, but that any other per-
son, interested to establish the matrimony, may
take up the cause in the state in which it was
left in the same eonrt, and proceed, as I appre-
hend, in another court, and invocate or illate
the proceedings.

The * pars citata,' or defendant, is alio at

507]

16 GEORGE IIL

Trial of the Duchess of Kingston f^

liberty to go into aoolber court in a new ma-
trimoBial cause ; ai for example, in a cause of
mtitulion of conju^l rights: * licere parti ci-

* tatas aut iu eodem judicio, aut coram alio ju-

* dice (son obstante quod citatio emanavit in

* caua& jactitationis) contra actorem iastituere
' causam matrimonialem.^ See Clarke's Praxis,
tit. t95. S05.

This ambulatory, indeterminate, state of a
•eotenee in jactitation must certainly, in the
appreliension of any man not a lawyer, be a
very improper circumstance to be oi^ed in or-
der to render this species of sentence given in
one cause an absolute bar to proceeding to judg-
ment in another cause of a civil nature, and
more particularly to make it a bar in a cause
of a criminal nature in another kind of juris-
diction. Taking thtugs therefore as the^ are,
and having proved the law respecting this ex-
traordinary species of sentence from the books
of practice which describe it, can any good
reason be assigned why such a sentence should
be conclusive in the present case, and should
not be revifteil and revoked, if occasion should
require it, in the high court before which we
now are ?

This sentence never passes into a rem judi-
catam^ or final judgment — it is subject to be
revised in any other court, having jurisdiction,
than that iu which it was first given. The act
of James I, by which the marrying of a second
husband or second wife, whilst the first is liv-
ing, is made felony, has, by creatinuf the felony,
plainly transferred that branch of the ecclesias-
tical jurisdiction, which before punished poly-
gamy, to those courts where criminals are
tried ; and to remove even the appearance of
any difficulty which might have arisen on the
riglit of the prosecutor to offer the sentence,
the counsel tor the lady have themselves de-
sired leave on her part to bring it before the
court, and have actually introduced it : can it
therefore be possible that this high court should
not think themselves authorized by a com-
plete jurisdiction in every re8|iect, spiritual as
well as tctaporal, to (rive the prosecutor, on
the part of the crown and of the public, the
liberty, under all the circumstances of this
f»se, of ofiVriu^ a proof of the nullity uf the
sentence, by pointing out from the proceedings
themselves, if necessity shuuld require it, the

. The Lords and others returned to the i
bir of Parliament in the same order tb«y
down ; and the House, being thus res
resolved to proceed further in the Trial c
zabeth duchess dowager of Kingston, in
minster-hall, on Friday next, at ten o'ol
the morning.

The Thiro Day.

Friday, April 19.

The Lords and others came from the C
ber of Parliament in the same order
Tuesday ; and the Peers bein^ seated, ai
Lord High Steward in his chair,

Lord High Steward. My lords, the H<
resumed. Is it your lordslii|is* pleaaui
judges may be covered ? — Lords. Ay, a

Then the Serjeant at Arms made p
mation for silence ; and the duchess of '.
ston was conducted to the liar.

L, H. S, Mr. Wallace, you may pi
with your reply.

Mr. Wallace. My lords, 1 muslbcspeal
lordships' indulgence to examine and d
the great variety of arguments and cons
tions, which the counsel on the part <
prosecution have thought proper to ente
and submit to your lordships. 1 ou^rht
first place to lake some notice of the cha
novelty imputed to myself, and those w
sist me, in the attempt to introiluce the
tence of the Ecclesiastical Court- brfoi
cause has been opened, or the evid^ce <
part of tlie prosecution stated to your lord

It miffht perhaps be thoni;iit a sufl
answer to observe, that no indk'tn-eDt ev
has been preferred un this statute, wU^i
Kcclesiastical Court iiRdifivcu a si oteoce
the subject. The prosecutor of this indie
has had the boldness to set at tlojiance th
ccedintrs in the Kcclesiastical Court ; «i
direct opposition to a sentence proiio
there, to prefer in a cou:t of ciiiniunl jm
tiou a charge of felony ; for aliliouirh cii
proyecutious are and must be in the na
the crowu, yet in both cases they are c
on hy private individuals ; and your lore
particularly know, in the present case, th

marks of fraud with which they abound ; or, ,

what is rather to be expected, to (rire the pro* | a private prosecutor, rihI one who niighl

secutor the liberty of adducing evidence in a I applied on the score of interest to the E

more direct maimer, both oral and instrii- I siastical Court, to have had that seutenc

ntental, to prove the marriage of the lady at i examined.

the bar with Mr. Ilervey, the present earl of j With respect to the novelty of the pro

Bristol ; by which the' collusive proceedin<£s
liefore the Ecclesiastical Court, and the truth
of the principal accusation, will at one and the
same time be plainly demonstrated ?

Lord President of the Council, My lords, I
move your lordships to adjourn to the Cham-
ber of Parliament.— Lor(/j. Ay, ay.

Ijord High Slezcard. This House is adjourn-
•d to the Cbaiftber of Parliament.

ings, the counsel for the noiile lady at tl:
would have found themselves standiuff i
in need of your lordships' pardon, if thei
not inter))Ose(l the sentence at the time i
offered. If they had permitted a cause c
kind to have proceeded iuto evidence, (n
from the accounts we have heard, is to h
before the Court by a numUT of witu
and of course mtist'^have taken up your
ships many days iu the examinatiou), and

509]

Jirr Bigamy.

A. D. 1776.

[610

til, tbe sentence had been produced and at-
tended with the effect which we hope it will
have, what wouM have been the situation of
counael, who had aiifTered so much of your
bnlships' time to have bpen mis-gpent in the
examinatioif of parole evidence to facts which
could not be admitted aj^ainst the decision of-
fered to your lordships?

But in truth it is not new in practice : the
caie alluded t<i is not only, as it had been term-
ed, a colour, but a justification for what has
been done. It is true, it was an ejectment,
which the ^ntlemen have profierly calle<l a
fictitious proceeding. It was for that reason
the sentenre was not interpose<l, till the evi-
dence was opened; for till then the defendant
i« ignorant in what manner the plaintiff inteuda
to make out his claim : but as soon as it was
Mated, that he derived through a marriage,
abich had been examined and decided in the
Ecclesiastical X3ourt, the counsel immediately,
without suffering evidence to he given, inter-
posed the sentence. In this case there is no
oecuion to wait for the opening of counsel ;
ftr upon the face of the indictment the sup-
posed marriage with Mr. Hervcy is staled as
ibe ground of the offence : the crime in the in-
Actment charged is a marriage with his grace
the duke of Kingston, during tbe life of Mr.
Henrey, in whom the noble prisoner at the liar
it alleged to have been before married ; ai^d
coosequently upon tbevalidity of that marriage
tbe question depends. The marriage with the
dakeof Kingston was notorious in the face of
tile church, under the sanction of a licence
from tbe archbishop of Canterbury, and in the
presence of many witnesses, llie supposed
iBuiriage with Mr. Hervey was the sole ques-
tioo in the Ecclesiastical Court : that co/urt has
^ded against it ; and as long as that sentence
remains in force, the relation of the parties as
baiband and wife is* at least suspended, if not
>bioluteIy gone.

Tbe practice every day, where one is in pos-
KMion under a fine, and no claim has been
>nde fur five years, is to interpose it imnie-
diitely. I ventured to do it not long ago in
the court of Kin<:'s-I)ench at a trial at bar where
the claimant came out of Wales with as long
> pedigree as that country could furnish. When
I beard it stated, and nniferstandifng that a great
pamber of witnesses must be culled to support
>ti I offered the fine to the court, before a wit-
it^ was calletl ; i^hich instantly put an end
to the cause. I did not by that incur any ceu-
lure from the court, or bianu* from tbe coun-
M. I thought myself called upcm in duty to
inform the court (if it ; and a cause, which
^uld have lasted three or four days, was en^Jed
U less than ten minutes.

1 trust, a conduct designe<l to prevent your
tVe being mts-spent upon a fruitless enquiry,
(^ whatever should be tlie result, yet thissen-
Ittce, if it hai the effect we contend for, must
'toder it totally nugatory and immaterial) will
BM be tbe aubject of yoiu: lordships' aqimad •

Enough, I hope, has been said in defence of
the attempt a^^ainst the charge of novelty ;
but an observation was made, to create a pre-
judice against the case of the noble lady at the
bar, from the conduct of her counsel in this
stage of the proceedings to prevent an exami«
nation of witnesses, as a proof of their opinion
upon the merits of the cause. God forbid that
any impression should be made against tbe
noble prisoner at the bar from tbe conduct of
her counsel ! Your lordships know, that in the
forms of proceeding she must throw herself
upon her counsel, and submit to their manage-
ment ; and no mistake of theirs will, 1 trust|
ever turn to her prejudice. 1 feel a happiness
in speaking to a court incapable of receiving
impressions from an insinuation of that kind.

An observation was made upon tbe form of
the sentence, which seemed to strike many of
your lordships, that as far as it appeared to the
Ecclesiastical Court, the parties were free from
all matrimonial contracts and espousals; not
positively that they were so ; and therefore as
far as the evidence went in that court, and no
farther, ought the sentence to be regarded.
Your lordships have heard from those that
practise in tiie courts of ecclesiastical law,
from the counsel on both sides of that descrip-
tion, that it is the constant uniform method of
drawing up sentences in causes of this kind ;
that it is a sentence of validity ; that it is con-
sidered by them as such ; but that it is open to
further proceedings in that court ; that it falls
within the maxim which was cited to your
lordships upon the other side, which is not de-
nied 'lere, but admitted, nay mentioned in the
very opening of this business, that * sententia
contra raatrimonium nunquam transit in rem
judicatam ;' this sentence, being against a mar-
riage, never passes into a definitive judgment of
that court: but does it follow, because it is
open to further examination, because other
suits may be instituted which may contradict
this sentence, that wliiht it reniuins unim-
|)eaclied, till other suits ar.i iusiituled, and till'a
different judgment is given, that the sentence
has no effect; that it is the words of the judge,
without having any sort of consequence at-
tending them ?

My lords, it is too ridiculous to suppose a
suit instituted in the Ecclesiastical Court, where
the prosecutoc of the suit (or the promoter, in
the language of that court) has oblaine<l the
sentence of the court in his favour, that it means
nothing at all; that it is mere vtaste paper;
that he might as well never have commenced
the suit. Is it possible, in a. country where
the least idea of justice prevails, that this should
he the case ? On the contrary, the sentence of
every court of competent jurisdiction has been
considered in the same, and everv other court
where it has become tbe subject of debate, till
impitached, set aside, reversed, or repealed by*
the court that gave the sentence, or by tbe au-
thority of a court of appellant jurisdiction, to be
conclusive.

Your lordships have heard from the docfort

511]

16 GEORGE III.

Trial of the Duchess ofKingstoftf

[512

of the civil taw the effect of a sentence in a luit
of jactitation of niarnai|(e. I took the liberty of
staling to your lordships many cases rbferringp,
where the same doctrine had been adopted by
the judges of the common law, and constantly
acted upon without an exception. The pro-
ceeding is not, as has been contended, in the
nature of an action for words or of slander ; it
has ev^r been instituted upon some serious
daim of marriage, which calls upon liie party
for an explanation.

Would it be no objection with a lady to a
gentleman payin^jr his addresses to her, that
8omel>ody claimed a marriage with him P 1 be-
lieve, my lords, it would at least create a pause
in the treaty, if it did not absolutely put an end
to it. He certainly would be called upon by
the lady or her friends to satisfv them, that there
did not exist a ground for such report. There
is no legal course to be taken, but by com-
mencing a suit of jactitation in the Ecclesias-
tical bourt. The proceeding calls in form
upon the party who has made the claim to Jus-
tify it. If a marriage be insisted on, the par-
ties instantly change situations ; the defendant
becomes the plaintiff or actor, and the original
plaintiff becomes the defendant, and is called
upon to answer that claim made in the Eccle-
siastical Court of marriage, not only to answer
it in form, but upon oath : the origmal plaintiff
is obliged on oath to declare, wheiher the alle-
gations of the parly respecting the marriage
are true or false. Ijie proofs are first made by
the party insisting upon the marriage ; and
the judge gives sentence upon them. The suit
in truth bocomos, and is admitted by the
learned doctor on the other side to be, to all in-
tents and purposes, a matrimonal cause ; and
the judgment is upon the validity and lawful-
ness of the marriage, f ii that light the pro-
ceeding in the eccU'siastical courts has ever
been received and treated.

But suppose the sentence has Iteen received
and considered as conclusive evidence, it is
contended by the counxel for the prosecution tO
he only in particular oases, namely, where the
person against wh(»m the sontence has been
given, or one deriving under snch person, has
been a party in the suit, in which the sentence
has been offered in evidtMice ; wlijch is not the
present case, as the eioun was no party to the
suit in the Kcclesiastical Court.

The distinction may he thought ingenious
and plausilde ; hut there is no foundation in law
to support it. Jn the tfrrat number of autho-
rities cited to your lonMiips, there is not the
least hint of such a disiinclion : the rule is laid
down in the most general ternvs. and without
an exceptiim, in the case of Hai field and Hat-
field before the House of Lords. The person
against whom the sentence was given in evi-
dence, was not a party, nor claimed under any
party, to the suit in the Ecclesiastical Court.

No notice was taken of another case which
] mentioneid to your lordships, where the per-
son against wliom the sentence was given in
«?idence wai no party to the proceedings iu the

Ecclesiastical Court. It was an action against
Mr. Thomas Hervey fur a debt contracted by
his wife. Mr. Hervey had a judgment in that
suit agiainst him : but in a sulMequent suit,
afWr a proceeding had in the Ecclesiastical
Court, in which it was declared that Mr. Her-
vey, as far as appeared to the court, was free
from all matrimonial contracts ( just as it is ia
the present case) the sentence was received as
conclusive evidence upon the fact of the mar-
riage, and defeated the plaintiff.

I am not contending that such sentences are
to be used as instruments of frauds upon credi*
tdrs. No ; if there is no real marriage, but a
man holds out to the world a woman for his
wife, and she gets a credit upon that score, he
shall never b^s permitted to say they are not
married : yet where the persons live separate,
where no act of his gives a countenance to the
demand, there a cr^itor trusts the wife upon
the ground of a le^al marriage ; there the Ec-
clesiastical Court decidiug upon the marriage
is conclusive evidence. That case was ac-
quiesced in ; no application was made to the
court ; and I believe all that heard it approved
of the decision.

A learned friend of mine on the other side,
afler he had as I thought closed his argument
and sat down, rose again to mention a case to
your lordships of Crutchlcy ahd Robins.

It must have struck him that it would appear
a little extraordinary, after so full a discus-
sion, no case had been cited to your lordships
to warrant or give a colour to the distinction
attempted. .

That case, when stated, and the reasons
given by the Court which pronounceil the
judgment considered, will appear not to have
the least application to the present. It was a
claim of dower by Mrs. Robins upon the estate
of Mr. Robins deceased, in Staflbrdshire. The
defendant in that case, the heir of Mr. Robins,
pleaded to that cloim, that she never was law-
fully married to Mr. Robins. The only legal
mode of trying that fact is by a certificate from
the bishop of the diocese : the pleading be-
tween the parties is brought to an issue ; it
is the ofEce of the Court to direct a writ to
the bishop to certify tvhether there was a
ninrriage or not ; and upon the certificate the
judgment is gl^en. Instead of suflVrinir the
Court to issue a writ to the bishop, Mrs. Robins
replied to that plea a sentence in the Ecclesias-
tical Court, in a suit \« herein she was by the
judgment of that court pronounced the wife of
Mr. Robins ; the defendant put in a demurrer,
insisting the replication was not admissible:,
and that was the quesliou before the court of
Common Pleas.

Did the court of Common Pleas decide, that
such a sentence is not evidence ? No : the
court of Common Picas determined, that by
law they could receive no other evidence of the
fact than the bishop's certificate; it was the
sole proof which the law in ih«t particular
case has required for the decision of the causet
and they could not depart from it. But they

bis]

fjr Bigamy.

A. D. 1776.

£514

went farther in that cause: they told Mrs.
Hohiot that the sentence, thobtfh it coakl not
he received there, ml^Ut be laid before the
Iwhop, who was to certify to them the mar-
riage. Ttiat is the language of the court of
Coannon Pleas upon the case: the bishop
■iiiBt certify the marriage ; the sentence must
be laid -before htm, and not before this Court.
Did the court of Common Pleas decide, as con-
tended, that it was no CTidence? No such
tbiog is to be found in the case. All the Court
id, or meant to do, was to inform the plaintiff,
Ibat she had mistaken the time and place to
mke use of that evidence ; that the law had in
that case appointed a certain specific proof to
ke given to the Court, and they could receive
19 other : the bishop, who was to examine into
tbe matter, might or might not be concluded
\j the sentence ; the Court must be determined
wjf his certificate.

My kmis, if the bishop had rejected the sen-
ttaoe, he would have done what no bishop ever
£i before ; yet the Court roust be concluded by
Iw certificate; they could not examine into
As proofs: nay, if the bisliop by fraud had
eertified a marriage, the Court would have
kfo concluded. 8o much for that case which
kii been cited ; and which is the only case the
iidastry of the gentlemen on the other side
coold produce upon this part of the argument.
Tour lordships have been told, that by the
ftteral rules of evidence in civil cases, no sen-
tcsee or judgment can be received, unless in a
oote between the same parties, or who derive
Mder them. The candour of the gentlemen
M the other side has admitted two exceptions
^ the rule: first, sentences or judgments
^Wre the proceeding in in rem ; and secondly,
ii caoses where the Court has exclusive ju-
liidiction.

I will not state to your lordships other ex-
npiioos to the rule ; the two admitted aresuffi-
^(St; the present case falls within bothexcep-
<i>as, though either would be enough.

Id the first place, it is a proceeding; f a rem ;
■sniage or no marriage is the point to be de-
finained. ft dues not come collaterally or
iMidentally, hut directly, in question ; and the
^Kiaioa of which was the sole object of the
nsL

In the next place it is a sentence of a court
yving exclusive jurisdiction upon the sub-
let- It is admitted that the Ecclesiastical
^Wts have exclusive jurisdictions in probates
tf wills, in all testamentary disputes respecting
^ntonal estates ; and having decided the ques-
^ whcUier right or wrong, upon true or
'■^ fabe grounds, it is not competent to any
*lWr court, unless in a legal way by appeal,
Stater into the matter ; but faith and credit is
li be given to the decision of the Ecclesiastical
Govt. It is also admitted, that, till the sUtute
*fia which the present indictment is founded,
6 Ecclesiastical Courts had the sole and ex*
tbttive jurisdiction in matrimonial causes.

Bat it ia contenrled, that a concurrent juris-
ts given by this act to the kiog'a tern*

VOL. XX.

poral conrts : where is the ground of this notion
to be found P Was it the intention.of the legis-
lature to give to the temporal courts a concur-
rent jurisdiction with the ecclesiastical ? The
intention must be collected from the act itself..
In my own apprehebfioo, nothing is more clear
than that the legislature, at the time of passing
this act, meant to guard and secure the juris-
diction of the ecclesiastical courts against in-
novation from the temporal.

The act is general ; that whoever shall marry
a second hnsband or wife, living the former,
shall be deemed a felon, and suffer the pains-
i of death. Yet that general enacting clause is
] restrained by a proviso, which demonstratea-
the intention of the legislature, that the pro-
ceedings in ecclesiastical courts should re-
main untouched, and the temporal courts have
no jurisdiction in the case. The exception runs
thus: — * Nothing herein contained shall extend
to any person or persons, that shall at any timo
of such marriage be divorced by any sentence
had or shall be hereafter had in ecclesiastical
courts ; nor to any person or persons—*'

These provisions shew an anxiety in the le-
gislature to preserve the privilege of the Ec-
clesiastical Court, and save their judg^enta
from an examination ; and so far from giving
a jurisdiction to the temporal courts in such
cases, the act expressly declares, that where
the ecclesiastical courts have given a decision,
the temporal courts must stop. The case ia
not within the law ; it is not permitted to ba
examined into.— It is pretty extraordinary that
history i;ives no account of this act, or the im*
mediate occasion for passing it. The preamble
states, * that evil diapo&ed persons being oMrried,
run out of one county into another, to ulacea
where they are not known, and marry there.'
If this was the evil meant to be redressed, the
case of a pers(»n of rank, obtaining a sentence
in the Ecclesiastical Court, and acting under
the faith of it, can never fall within tlie descrip-
tion in €)e act.

The Journals of neither House furnish any
lights upon this subject. The act waa brought
into the House of Commons in April, received
some amendments in a committee therO) and
sent to the House of Lords : it there also re-
ceived amendments ; and was returned to the
House of Commons ag^in in June: but what
the amendments were, or whether the provisoes
were inserted by the guardians of the rghts of
the church, as is most probable, or came from
the House of Commons, cannot be discovered.
Suppose a sentence of divorce pronounced in
the Ecclesiastical Court ; would it be permitted
to any court, under pretence of fraud, to exa-.
«mine for the purpose of making the parties
criminals, when the act has declared such a
sentence shall not be meddled with ; and the
parties under such sentences are excepted in
terms out of the act ?

Where a sentence of nullity of marriage is
given, it is equally open to future examination
in the ecclesiastical courts with a sentence of
jactitation. If this be doubted, your lordshipa»

8L

Triai of the Ducheu ofKingdoih

[51ft

^4

party CIO
be m the pr«diciiiietit
m— , who » bj the
Ibat «Mrt dccfarcd never to bare
at all» Mri 10 befirvie from all ma-
be a feloo? Sucb a
pemal law wonld be moo-

of the kfuktnre it to me aa
dear aa laacvace cao awke it, that matriroo-
■sca thawM be still withio tbe aole juria-
of the ccchiiiHipal eonrta, aod that the
iru should have no authority to
into their decisMNis, by declaring^, that
these aenteocea obtain, the party
mairyioi^ whilflt thcjr are io Ibrce, shall not m
a fekNi ; aad yet the former marria|^, if it
were a legal one, is not done away : it is capa-
ble of betnif refived, and a second marriage
woqM be null and void. And upon another
proeeedin^f if the sentence should he in Uwont
of the marriaife, either partj may commence
a suit for restitution of conjusal rights ; tbe
fiiat marriage would be establis bed, and a se-
eand saamage, pending the sentence, void;
yet the party would not be in the predicament
of a felon. Thia is clear from the act of par-
JiaBMOt; and in this sense yuur iocdsbipa will
give ase leave to use it, as shewing beyond a
BoaNbility of doobt tbe intention of tbe legis-
btiue. Where then are the argumenta we
have heard, that the legislature meant in this
case to give the common law courts such con-
corrent inrisdiciion, as to disregard the aeo-
tences of tbe ecclesiastical courts ? Has the
If^atnre said so? Has not the legislature
•aid the contrary in express terms ? Wherever
a sentence is pronounced, that person is not to
be tried in the temporal courts. Is it compe-
tent to any tempond court ? Is it competent to
your lonlshipa, the supreme temporal court io
the kingdom ? Awful and great as this court
is, give me leave to say, that the rules of con-
•iroction are the same as in tbe most inferior
court of criminal jurisdiction. There is not
one law for Peers, and another for Commons,
m this country : the law is tbe same for both ;
it only varies in the circumstances of the trial :
tlie evidence to prove the guilt or innocence of
tbe party is tbe same in all.

There is no doubt, but the temporal courts
may try marriages upon this act, where no
sentence has been given in tbe Ecclesiastical
Court; as they do every day upon titles to
lands on ejectments : but where a sentence has
been obtained agoinst, or in favour of, a mar-
riage in tbe Ecclesiasiical Court, tbe temporal
courts are concluded by it.

The concurrent jurisdiction which tliey con-
tand for, if 1 undentand them right, is this :

the ecdcaiastical courts, say they, it b tnwf
have a rig^t to try a marriage ; but the tem-
poral courts have'abo a rigiit to try a marr«agw
oader this act of parliameoL The aenieocc of
the Ecclesiastical Court will not satisfy then;
thej will have the evidence; and if thejr arv
fatntled with the evidence that the eodesiasti*
cal couftN have thought insufficient, they will
pronounce the crime, aod punish tbe oioider.
Can there be any aoch position wamnted by
the act of parliament ?

If the U*gi»lature couM have Ibnaeen, that hi
any period it should enter into the head of aaj
man to aet at notbintf the jurisdiction of the
ecclesiastical courts, they vouM not in mora
positive terms have guarded against it.

If the gentlemen should be able to eataUish
a concurrent jurisdiction in tbe eocltfaiasiical
and temporal courts, they then beg leave W
advance a step further, and lay dow n a mlc^
which they hope your lordships will adopt to
entitle them to enter into evitleoce, that judg«
menta only bind in courta of concurrent joria-
diction, where they are just.

I deny the rulein the extent it has been had
down. Have not the courts of King'* bench,
Common Pleas, and Exchequer, a coocancnl
jurisdiction in civil causes? and was it evcf
heard, when a judgment of one of the courta ia
pleaded in another, that the propriety and recti-
tude of tbe judgment can oe examined into?
Certainly not : tbe party is permitted only ta
deny the existence of the judgment. The caaa
of Sinclair and Eraser,* lately determined 1^
your lordships upon an ap|)eal from Scotlaad,
waa cited as an authority for this purpose ; in
which your lordships ruled, that a judgment in
the court of Jamaica should not be enforced
uolesa it was just ; that is, if the defendant ia
the cause could shew it was unjust, no conrt
ought to lend its aid to carry it into execution.
— Sly lords, nothing is more right or just ; bnt
does it apply to the case before your lordships?

Wherever the aid of a superior court ia
wanted to give effect to a judgment of an infe-
rior conrt, or of a court which cannot carry iato
execution its own judgments, from the parties
being locally out of its jurisdiction, that court
wliose aid is prayed ou^ht not to give it, if the
defendant can shew the judgment to be unjusis
— they will give so much credit to the sentence
of every court as to presume it right, unless tb«
defendant cau shew the contrary. Not loa^
ago, an application was made to the court 3t
lupgVbench to inforce the judgment of tb0
justices at the quarter-sessions In Lancashire.
An act of parliament passed for the inclosure of
a common. By that act the public roads ar0
directed to be 60 feet wide, the common wa0
small, situate in a very remote part of tb#
country, where very few pe<iple came hut tliosv
interested in the lands, and they tbouffht ihaC
niails of less breadth would very well suffice
for the occasions of the country ; the commia-

■^

* See this Case cit. Dougl. pp. 4 and &, and
in a Note to p. 6.

517]

Jixr B^mnf.

tioneri under thtt act of parliament aaiif^ed.
in the name of prif ate roatfs, what in trutli bad
before been public, and allotted balf the dimen*
tions required by the act. There was an appli-
cation to llie aesaions, who had jurisdiction, by
appeal ; and they ordered the roads to M
opened to the extent the act directed : bnt when
tbey hati done that, they were lefl without the
power of enforcing^ their order : they could not
compel a specific execution of it. If they had
proceeded for a contempt against the commis-
sioners by indictment, that, would ha?e been
ledious and uncertieiin : the proper method was,
bf an Application to the supreme criminal court
St the kinirdom, in which the superintendance
of all inferior jurisdictions is loil||ed. A man-
dunos was moved for in the King's- bench, to
ealbrce the judgment of the sessions. The
«sart of King's-nench told those who opposed
tiM application. We think ourselves l>ound to
coforce it, iinl^s you can sliew it to be m^ust:
tsnvinoe the court that the sessions ha?e done
viongr, and we will not lend our aid. And on
that occasion a case was cited by the learned
brd at the head of the court, which happened
li the time of lord Hard wicke. Upon a uecree
sfthe court of Grand Sessions of Wales, where
a party had removed out of the jurisdiction of
that court, a bill was filed in the court of Chan-
tny to enforce the decree of the grand ses-
lions; the defendant by bia answer insisted,
that the decree was unjust, and ought not to be
orried into execution : lord Hardwicke waa of

S' inn, that if the defendant could satisfy him
the decree was unjust, he would not lend
bis aid to enforce it.

Do we apply to your lordshiiYS for the aid
«f the court to carry the present sentence into
flneotioo? No; we ask no favour; wede-
■aod nothing but your justice : we produce
the sentence : we do not ask for your assist-
aace to carry it into execution ; it comes in
ciQateratly ; and in such cases, whether in the
asmrti of law or in the courts of eouity, the
Matences of the Ecclesiastical Court nave been
•witautly attended to and been received as con-
illrive evidence.

But, mv lords, though sentences of the ec-
clesiastical courts have been ever received as
Maelusive evidence in civil causes, yet it is
CMtended, they are not admissible in criminal
fmccotions. Is it the genius of this country
H attend more to the panishment of crimes,
tbn to the administration of justice between
tkc parties in civil rights? 1$ the distinction
fcmded in good sense or sound policy, that
the sentences of ecclesiastical courts should not
iilf be received, but be concluMve, in one case,
iad be no evidence at all in the other P Your
' Witsbipf will expect very strong authorities
kfbre you listen to such a distinction.

Suppose in a criminal prosecution the pro-
^y of goods ohould come in quehiion, aod a
Icateoce of condemnation in the court of Ex-
cWqiier was prfMluced, is there a doubt of its
hcing reoetved ? Where the proceetliiig is in
in, the lentencc luuat of neccaiuty be adinia-

A. D. 1776. [518

sible and conclusive in all courts, between all
partiea, and on all occasions, aod to all intenta
and purposes. Whhout it there would be con-
trariety of determinations upon the same ques-
tion ; which would be a reproach to the justice
of the country.

I troubled your lordships with a case from
sir John Strange'a Reports to prove, that the
sentence of the Ecclesiastical Court was ad-
mianble and conclusive in criminal cases : that
deetrine u abundantly confirmed by a case in
the King'a-bench four years after; the King
and Rhodes. What is the anawer given to the
case P The reporter was a jyoong man, and
therefore he is not to be credited ; or, his notes
of cases after his doith came into the hands of
hia executors, who knew nothing of law, who
publish every scrap of paper they can find, and
give them to the world-— to make a volume t lo
the authority is got rid of by an objection to
the yonth of the reporter, and the manner of
the publication.

Ir your kmishipf were inclined to listen to
objections of this kind, it wonid be a curiooi
enquiry, at what period of a lawyer's life be
can take a note fit to be reported. 1 confess, I
am totally unacquainted with it. 8honld it be
when he is at the bar, a young man, and attend-
ing to every thing that passes ? Should it be,
when he is advanced in buainessP and when
the business he is concerned in engrosses his
timeP If the case had happened later, your
lordships would have been told, sir John waa
then a man of buaineaa ; he did not trouble
himself about Uking notes; they are verj^ in-
accurate. If it had been the note of a judge
taken upon the bench, I do not know but it
might be said of him, what was said of another
judge, — judges are apt to sleep upon the bench.

1 had the curiosity to enquire into the cir*
cumsuncea of the Report. The case happened
when sir John Strange waa about 24 or 85 year*
of age ; he had been at the bar 4 years. A
note so taken, and preserved to ihe time of his
death, ought not to be alightly treated. The
observation of the case being published bv bia
executors would have been spared, had the
gentlemen gone to the first page of sir John
Strange's book ; for they would have found by
a preface written by sir John Strange himself^
when between 50 and 60, that he had collected
these cases, and meant the public should have
the use of them ; that he had been at tlie |iaioa
of selecting those that he thought fit for puhli-
calion, and of putting them into onler. It ap-
pearti he had given some of his notes to a gen*
tleroan, whose servsnt had clandesiinety copM'd
and Nold them to bookKelleis ; and testlNie rasea
so fturreptitioiiNly «)l»tiiined should be imper-
fectly t;iven ti> the public under the sanction of
hi«« name, h-* wan at the expence of liavinic ho
notes traiiNcribeil under his own e^e: and he
says, ** if they sh<iuhl not be puhlish«'d in u»y
life-time, they will come perfect into the hands
cf my vxecotom; aii«l of ctourse to the publiv.'*
He praciined in the first criminal c<»urt ot thii
country with the greatest honour and abdity ;

6I9J

16 GEORGE III.

Trial of the Duchess of Kingston,

[59

be had never heard in his time that the case
had tieeo over- ruled or impeached : if he had,
bis intei^rity was such, that the ca^e never
iruuld have a|ipeared in his hook ; or if lie had
inserted it, it would have been accompanied
i»iih a note, that damned it, or threw a doubt
on its authority.

There was another objection to this case;
that it must have been determined in the time
•f the dullest alderman that ever sat in th«it
court. Who, my lords, determine cases of this
kind at the Old- Bailey? Not the aldermen:
they attend indeed; they are fine pictures,
handsome furniture ; they grace and adorn the
court ; very respectable, of considerable trade ;
but tliey do not deal in law. If they ever study
law, it IS to avoid it ; in which they are not al-
ways successful. The judges of the common
law, of the superior courts of Westminster-
Hall, decide the questions which arise in trials
there.

Your lordships have been also told, that the
authority of this case, if ever it had any, was
soon put an end to in the year 1753, in the case
of the King and Murphy ; where the probate
of the Ecclesiastical Court was set at nought ;
it was nothing more than paper and wax, with-
out any effect. The case of the King and Mur-
phy was thrown in by name. A case, the king
and such a one, shews it to have been a crimi-
nal cause ; but it must be from a state of the
facts that your lordships must discover the
9pplication.

I will let Toor lordships know the state of
that case. It was an indictment for forging
Ihe will of one Wilkinson. Your lordships
have man)r of yon heard of the great successes
of some privateers 6tted out in the year 1746-7,
called the Royal Family privateers : they were
very successful ; and they got very soon into
many disputes in the court of Chancery and
courts of law. Their wages and prize-money
were considerable. Wicked men were tempted
to endeavour to possess it. A sailor in a re-
inote part of the world is a being not likely to
give himself much trouble about money.
Murphy, who was prosecuted at the Old- Bai-
ley, knowing Wilkinson's title to the prlzc-
monev, had forged a will of Wilkinson, had
got tiiat will proved, and had received from
one Noades, the aji^ent, part of the prize-money
of Wilkinson. All went off very well. Mur-
phy spent the money. But in a few months
at\er,Mr. Wilkinson was restored to life. He
appeared before the agent, and demanded his
money. Says the agent. We have paid your
executor. S&ys he, That is pretty odd ! I will
satisfy you 1 have not been dead ; and nobody
can prove my will till I am dead ; I insist nfon
my money. The fraud was detected; Mur-
phy was apprehended, prosecuted, and con-
victed.

Would the gentlemen have had him aet up
the probate of the will at the Old Bailey ?
Would they haVe told Wilkinson to go to the
JScdeaiastical Court to repeal it P What would
WilkiDioPi ignorant a be ww, say f I htTC

heard of probates of wills of dead men, bi
never heard of probates of wills of living mc
before : the jurisdiction of the Ecclesiajstie
Court is to grant probates of the wills of tb
dead, not of the living ; and therefore the que
tion could not arise.

Another case ut one Stirlini^ was mentionei
Stirling found out that a Mrs. Shutter hi
property in the South-Sea stock, and^h
scheme to possess it was like Murphy's: I
forged a will, got it proved, went to the Soutt
Sea-bouse; there he exhibited the probate
they gave credit to the death of the party, ai
to his beincr the executor, and they paid tli
money. The woman, who had nothing eh
to live upon, came to receive her divideni
The clerk says. Your executor has proved yoi
will ; you must be the gbost of Mrs. Sliatle
not Mrs. Shutler herself. She was not to i

Sut off in that way. The company found ot
tirling, and brought him to justice. He di
not say to the court on his trial. Do not bi
lieve ber ; no law says you must take tb
evidence of a ghost: she must go into Doctoi
Commons and rescind this, before you belief
ber evidence. No court would bear such an it
suit. The jurisdicticm of the Ecclesiastical Cooi
does not attach, till the party is dead : tba
is no such thing as a will for the Prerogmtii
Court to give effect to, whilst the testator i
living. It was said, the crime consists in ol
taining the probate. The will has no legal e
feet without it. It is not necessary, to conat
tute the crime of forgery, that the will sboul
be proved. If the will is exhibited aa a gi
nuine will, and the officers of the court (wbi
has happened in many instances) suspect a fo;
gery, tney atop the probate ; and many bai
suflfered without a probate being granted, tli
offer to prove the will being a publication (
the forgery.

Two other cases, the King and Fitzgera^
and the King and Carr and Richardson, wei
also mentioned to your lordships. In neith<
of these cases was any probate produced or ii
sisted upon by the prisoner. One of the get
tiemen, who cited tiie cai^es, suggested that ai
swer to them, which was too obvious to I
overlooked.

I trust your lordships are satis6ed, there :
no ground in reason or authority for the dii
tinctiim attempted between civil and crimin
causes in the admissibility and effect of tk
sentence of the Ecclesiastical Court.

I am now, my lords, arrived at that point t
which the whole artillery seems to be directed
that the sentence was obtained by collusioo^-
Your lordships have been told, that a jiidgmei
by collusion is fnbula non judicium; was
pnper, ink, any thing that 30U will, but m
a judgment : the jud^e does itut act, the judg
is inip(»sed upon ; it is of no effect whatever
in no court, in no light, upon no occasion, 01
the most ingeniouM imagination suggest a cm
in which collusion does nut affect the tranMM
tion ; and being once proved, deatroys it nw
the beginning, and ai much ai^pihilatee it, m*

tr wtiltil Uw nf every court.
■i deny the (loctrtDe in Ibe
Tor, anil to iosiit before
, . le voltuiion cannot be Kerred
«l^<iul lliin lenlenee, eiihcr iijiDn the principlec
oftlw eucnmoii law, nr the pmiUion* of injp
•laiiiir. By ihn comrnun law of ibis couairy.

Byli
[irnof of cnlhia
milled to rraciod tr

» per.

Vuiy itaiutei bate been inade ti
l.>aii *■ ■■ ■ ■

nEociinnn : ibe niinjdiciljr
cilcuUleU for more nonest
limn, WD* not eqiiil lu ull the art! of iojuitice
wbich ingeniuuK nicbeilneas balb produced.

[ty tbc princi|iles uf the common law, the

I'lmua pennilltd to rescind a transaclion, on

III' kooro of fraud or I'olhiBion, must have an

iiii-rrtt rested at llie time. Tbia is expressly

1..'] ibwn by Ibe court In Tnyne'a case, re-

"tinj by lord chief juslice toLe. Where

.I'liJa are unjnally taken, und auld in a market

Tl hy fraud, to chia|;e the property, the

■ - r-'- rr may rel»ke ibem. So where ■

■stcotea his debtor to judgment,

iiTsdUhiiKOoiU loaperaou know-

iiirigmeol, with u ciew to defeat ilie

' ' , iIk' ifuods may notwiibilandint; he

'.111 )jy 1 lie .creditor. In Imlb cates ao in-

""' ' " "' le lime of the Iraud.

iuppre«a
id-
id last of alt

mof queen Eliealwlb; Ihe mainobjectof
■lid) WM U> eaalite persona who became in-
(HMlad ■utieeaucnl lu IranMCllona founded
in oillualuo anil fraud, to impeach uid resciod

libaiuol Indeed been enpreisty in-^istnl, Ihal
'', the ciimmnn law, ioilejxndenl of ilalutnble
;iu>ii>uii<, all fraudulenijudgmeuts were loid,
ud ihal it wai cuiD|)i;leiil lo nuy peraon to de-
bt ibfu: the anthorilies I hate died, and
b|irialirD ilcclHialioDs ugian ihe suhjecl, prote
HBOotraTy. The aliiule of (lib Henry 6. c.
U, it» alrMdy been iiienlioDed : from iheoce
k^ dear, Ibr certificate uf ihe bigbop. bow-
*W enlltwirely or IVnuduttntly obtained, wat
nHtatir* belweeu llitt ^rliet. And in the
4M of bastardy, a pmtision is made agalntt
•■kecftiGcatea io fulure : but in ulher casrs.
■ii HUwrilKe, to Ibii day, and also before ihe
Ubmalion, upon Ihe paniw beinf; uf a reii-
ttim order, the uetlificate was coni-lutive, not-
jidMlsmKDg any frauil or coll usioa.— Cot -
Mil* judifineDts upon iieoal statulet lo ntu-
M aOcndera tVrquenlly ovciir in practice i
•ijHbeu ihtry are uisikred on, Ihe ptaintifl' hita
' .1 I < nv^r aucb juilgmeut* la hate been
' > fraud and collutlon. ThU dors
■ III! Ibe protiaion uf Iheromninn law,

11 r> ui-i lit pari iiroei It made In Ibe 4lh

'I. J. V. ■ii). The whole staliile is material lo
•■Miuidrd 10. The lilte of IlieacI in, " aclions
|l|«krp>**ecaled by collltaiun ohall be tin har
k *«•• wbich be pursuit with |[»od failh."
that if an action popular tie com-

jaJnalanufl'tiidrrhy gout faith, then

KtlHM^0viHUrYtiil Udaj Iht acljoii eilbcr

A. D. 1778. fSSt

by Don 'appearance or hy trascrve; and hang-
ing ib(^ lamc action, the aame offender oill
cnuae like action popular 10 lie bruiigbl a^faiaal
him hy covin li>r ilie aame cause and otTenca
that t^e first aciian ««s lued : and then hj
covin of Ihe plainliir lu that eecood acliou, b*
will be coDdemned either hy conleMion, leign-
ed Iriut, or release; which condemnaliau aod
rdease kn had by collusion and covin pleaded
by Ihe said oHendrr, &hall Inr Ibe ptainlilf in
the acLun sued In good failh : il a therefura
enacted, Ibat io fulure the plaintiff sainff in
Kood failh may avpr Ibe former recovery Io
have btren hy ciirin and colluaiao ; but nu such
averment in lo be received alter a trial on tba
point of ibe action, or on the covin or collusion.

Here your lordahips find the origin uf aver-
menia, tiiat Judgmeiila on P''>iil atatuiei
were oblaioed hy coUuaion. This act attiroM
the principle of ibe common law, ihat none
but persiins inleiesled were entitled lo rescind
jud^enls on the i[round of cnlluaion. A pe-
ually given to a cuinmon inliirmer is not vested
in any individual, till he commences Ibe ac-
tion ; aod ciinset|ueiitty he could nut aver col-
lusion in a former jud)-meol: such judgment
was not llieu fubuta, or waste parchment, but
of such effect and cuncluainn aa called for an
act of parliamenl to remedy (he niiscliief.

There cau he no greater aulhnrily to prove
ibe cominou law of the land, thao a purKamen-
Isry ileclaralinn upon ibe subject: t\iia act fur-
nishes a roust explicit and satiaraclory one.
Your lonlahipfl will not suppuse an act waa
made to reineily a minoliief, or supply a defect,
which did not txitl. If your loriiships reli^r la
Ihe acts of those days, you will Hml theiri
drawn with g-reat precininn aud accuracy, and
with great knuwled|;e of the sulyect ; I h ill
not say at much for the ocu of ibe pretenl

This act must evinee lo your lordships, that
colluiiie jnilgmenis in courts of law bound in
colluipral suits. I« <i then to be wnndered at.
thai there was no pi-ovision by llie commou law
respecting fraudulent aeulencea in the ecclesi.
astical conrti, which bad the sole and exclusive
jurisdiction i» ihemseltei ? But it does not fol-
low, that collusive practices are lo have effect,
or the panics go unpunished.

A power is incident to every court lo preveat
its proceedings from being made ihe instrn-
meniB of fraud and iniquity, and to punish Iha
persons concerned in Ihe aliempt. It may b«
(lone upon the informaliou of one ialerealed or
not interested. The Cnurl is called upon for
ila own honour lo examine into the businesi.
, Your loid&hipa have been tuld, that tb«
cruTtn cannot gel at the collusion; that th*
ecclesiasiical courU will nut attend lo Ihe a|k
plication of ihe crown. If that were the else,
It would not follow ns a necessary consequence,
tbat the cruwn abould be admuled to allege
collusion here. Bill baa the attorney genera)
■urmtseil to the Ecclesiastical ConrI, ibal Iber*
has been aucb an impnsiiiun put upon them a*
i* insinuated r Haa ibejudgoof ibeCogleiiau

523] 16 GEORGE III.

tical Co6rt told the attorney general, I cannot
attend to the aufjn^estion ; no applicatidn has
been made to the Ecclesiastical Court, either
on the part of the crown, or bj the real prose-
cutor in this case, or any other person, thouiph
the duke of Kingston and the noble lady at the
bar lived together five years under the sanction
of a marriage solemnized wilh the archbishop's
liceuce, in the presence of friends, and known
to the world ? Does the prosecutor say, he is
actuated by motives of justice, and allege the
supposed collusion newly discovered P

A case happened in the court of Ring's-
bench, which is known to many of your lord-
ships. Mrs. Phillips had married Mr. Muil-
man — Mr. Muilman had got rid of that mar-
riage by a sentence in the Ecclesiastical Court,
by proving a former marriage with one Dela-
field.— It was then the lady's turn. She me-
ditates getting .rid of Dela6eld's marriage, by
proving that Dela field at the time he married
her had another wife ; and so the lady was to
fix herself upon Mr.. Muilman in order to give
eflect to her scheme. An action was brought
for a real demand against her in the court of
King's-bench by a brewer, who had g^t a note
from her for a valuable consideration : the in-
tent of this was to create a rumour that Muil-
man and she were married. They might have
brought this and a thousand such actions, and
no verdict given could be evidence against Mr.
Muilman. But when Mr. Muilmnn heard of
this proceeding, and the purpose of it, though
it could not affect him, he applied to the court
of Kiog*8-bencb, not as a party in the cause,
but iiit'ormed the Court that such a proceeding
was had by collusion, that it was an abuse of
the Court, and ought to be rectified. Lord
Hardwicke was then at the head of that court :
he considered it as a high contempt of that
court : he attended to the application of Muil-
man. All objection had been made by counsel,
that Muilman was not to be beard. What!
Said lord Hardwicke, to inform the Court of a
contempt, is he not to be heard ? Any person
as amicus curia may inform the Court of a
contempt that has been committed. The
Court ordered the record to be taken off the
file, and punished the parties. If the present
sentence was by colhuion, the Ecclesiastical
Court vso\\\{\ erase from their records the me-
morial of the transaction at the surmise of an
amicus curia : and would not the Ecclesiastical
Court huve thought themselves honoured with
such an amicus curia as his majesty's attor-
nev -general?

Great, nnd perhaps deserve<l, commendation
was be stoned upon the marriage-act, though,
I really confess, I did not discover the applica-
tion. YtMir lordships were told, that i-very
woman of easy virtue and of indij^ent circum-
stances before that act had an iiuinediate re-
ceipt f<»r the payinrnt of her debts by ^ettincf
married at the Fleet. Has the marriHtfe-act
been attended with such lieneficial consequences
to make all women virtuous, aud all women
rich ? if IhaX be true, it has much greater

Trial of the Ducfiess ofKingstoUf [5?4

merit than I conceived belonged to it. Did a
Fleet marriage discharge the woman from her
debts P The only change it made in her sitoa-
tion was this: when married, she goes to -gaol
in company with her husband ; whereas if
single, she must go alone, and trust to the com*
pany she meets there : and as to future debts,
she was not liable, because she was a married
woman ; and at that time the marriage cere-
mony, if performed by a priest, was valid.
But is there, any thing in the marriage-act
which says, that a woman who now marries
shall not run into debt P It wookl be Terjf
happy for many husbands in this coontry, if
there could have been an effectual provision of
that kind. Before the marriage-act, a woman
by her marriage in the Fleet was not liable
to future del^ ; a woman now by her mar*
riage in the church is not liable to future debts*
Has the marriage-act made it a difficolt matter
in this country to be married ? Are there many
obstacles in the way f . Is there any delicacy m
surrogates in granting licences ? In truth, it is
as easy to get married in a church as belbre in
the Fleet Suppose a marriage by banns at a
distance from London ; the woman comes hers
and runs in debt ; does any body in London
know of her marriage, though it was in n
church P She has as much power to run in
debt since the marriage -act as before, and as
exempt from the pay men t«

Your lordships are told, that a man and woman
mav to civil purposes and to civil duties, by a od-
lusfve sentence of this kind, become separatedt
and no longer husband and wife ; but to all the
public duties they are husband and wife : Ihey
cannot al^lve themselves from public du-
ties ; there is no power upon earth can do it
but the legislature of the kingdom ; and that
the noble lady at the bar is free to all civil
purposes, but to alt criminal purposes she is a
wife.

I wish the gentleman, who U8e<l this argiH
ment, had explained himself upon the subject ;
for I'protest to your lordships, 1 am to be inlbrm*
ed that there are other public duties by husband
and wife to be performed, but those in a state of
cohabitation : I have noideaof any public duties
which the state can exact from a husband and
wife in any other situation : and yet, my lords,
nothing is more clear, tirtin if a man and woman
cohabit together as husband and wife after n
sentence like the present, and whilst it remains
in force, they are punishable by ecclesiastical
censures.

Are the public duties alluded to the iujonc«
tions found in the act of parliament, that MS
man shall take another wife, or any wunsais
another husband, living the former ? The act
does not mean to punish all surh acts : for iiS
the first plareihe act says, that it is competent
to any man, without lieroming a felon ur the
object of poniHiiment by the act, to marry a
second wife, providt*d his first wife is tieyond
the seas for seven years together, Ihougli ibt
liiiithind knows she* is livinir ; and yet tlie se-
cond marriage is void, and Uie husbuid may b*

BS5]

fw Bigamn.

A. D. 1776.

[5S6

S

c
u
J
1

t

J
ft
3

poBiihed iu the ecclesiastical ootirta, bat ikot
la the temporal.

Sup[»08e a (^otlemao from IrefatDJ, for in*
ftaaoe, sboutd be ciril enoo^ to leave hia wife,
aad reaide teven yearain Enf^laDd ; tbouflph be
bear from her by every packet, though be
write to her by every packet, he may marry a
woman in fin^land without offending against
the act of parhament. It would be the same,
if a person living at Dover could prevail on his
Wife to go and reside at Calab for seven yeara :
be might marry another woman at Dover with-
aat any peril fropi this law, though every vessel
brongbt nim accounts of her good heafth. Is
Ibis then that great public duty which the state
s» rigoronsly exacts, that none of ita aubjects
ibali marry a second husband or wife, living
Ihefiiit?

It ia well known, that a divorce for adultery
iocs not dissoire the bonds of matrimony ; the
idatioD of husband and wife still exists, and
aeitber party can marry again ; and yet the
ky after that divorce is pronounced, she can
terj any man she pteasea without offending
igainst Ibis law. It ia not then in this act of
psrtiament we are to find the uublic dutiea
which the atate exacta from a nusband and
iftk \ for in many cases a aecond marriage Is
ait pooished, or even condemned by it.

Pteaibly the gentleman may urge, that a
wife's residing abroad for seven yeara may be

Scallasion to give the husband an opportunity
marrying again without committing felony ^
is short. If your lordships vield to this objection
if colhiaion, it is impossible to foresee to- what
cilmvagant lengths you may be carried in
■iMrt of the proposition, that the noUe lady
It tbe bar is to all civil purposes single, but to
iB criminal purpoaes a wife. The caae of a

Kwho committed a fraudulent act of
ptcy, on which a commission issued,
lad for a concealment of part of his effects he
*ai tried and executed, has been mentioned.
TIm case, so far from maintaining the proposi-
tiia, la an authority against it: the collusive
let of bankruptcy was deemed equivalent to a
ittl one ; it bound tbe bankrupt to all civil and
criottBal purposes; it subjected bis property
|i be seized for the benefit of hia creditors ;
il salgected bis person to tbe pnnishment
wdiined by tbe bankrupt laws: there is
te distinction made between civil and criminal

Stoppnse a commission of bsnkruptoy issuing
Cariy upon a real act of bankruptcy, and a
nseealment by the bankrupt ; and let me
appose farther, which is not an impossible
Mg, that the commission by collusion be-
Iwien the aasigneea and tbe bsnkmpt is super-
mM, as having improperly issued, by an order
If nnr lord chancellor, and an indictment ahould
ki anerwarda nreferred for the concealment ;
VouU anv judge suffer a man to be tried aa a
^lia onffor theae drcumstanoes on a sugges-
^oflrmml in superseding the commission ?
(^Cftainlj sot : I am persuaded every judge,
*bt ■ow imiati your wrdahipa, would tall tbe

I protecntor be had mistaken the place' to examine
tbe fraud ; that he ought to have applied to the'
court of Chancery, which has exclusive juris-
diction in bankruptcy ; and direct the priaoner
to be acquitted.

Fermor's case, in lord Coke's Reports, was'
cited to your lordships to prove, that acts tem-
poral and ecclesiastical may be avoided for col-
luaran : doea that learned judge say where such '
acts are to be avoided ? No ; but, my lords, to
illustrate that passage be refers to a case re-
ported in lord chief justice Dyer's Reports;
and there it appears, that the act of the Eccler
siastical Court, which was granting an admi-
nistratmn, had been repealed in the Eoclesias-
tical Court for collusion. If I wanted autbori-
tiea to add to those I have cited, I would bor-
row this to pot into tbe number ; because it b a
direct proof, that the Eccleaiaslical Court have
a power to aet aside their own acte for fraud.

A case of Lloyd and Maddox was cited
from Moore's Reports to prove, tliat the Ecde*
sisstical Courta had a power to examine into
the collusive means of obteining a judgment in
the temporal courts; and shall not, say the
gentlemen, the temporal coorte toke tbe same
liberty with the sentences of the ecclesiastical P
The case need only to be stated to shew the
fallacy of tbe ailment A person claiming
a legacy auea in tbe Ecclesiastical Court, tbe
proper rorum for the recovery of that demand :
the defendant in answer aays, I have nothing
to pay you with. Such a one, a daughter 3t
the lesUtor, has sued me in a court of law for
a debt ; baa recovered a judgment against me.
1 must pay that debt. I cannot pay yonr
legacy, unleaa I pay it out of my own pocket,
and nothing can be more nnjust. Tbe executor
is to administer the effecto as far as they go,
but not to pay the.debts out of bis own pocket.
The legatee in answer said. The judgment was
by fraud, and the temporal court would not pro-
hibit the ecclesiastical from examining into the
matter. This is not only within tbe principle
of the common law, the legatee having an in-
terest at the time of the fraud committed, but
falls within the statute of (lueen Elizabeth,
which ordains, that every judgment in any
temporal court by collusion is utterly null and
void, as if it bad never existed ; it is void
against every person having an interest ; it is
void by force of the statute against the crown
demanding a forfeiture.

A learned friend of mine, who spoke in tbe
cause, and who did me tbe singular honour of
attending to me, not for- what I said, but for
what I omitted, observed to your lordships,
that I had avoided entering into the effect of
fraud and collusion upon the sentence, unless
by citing tbe case of Hatfield and Hatfield. I
knew it would fall to my share to trouble your
lordships upon that suhjert ; and to avoid a
repetition, I contented myself in that stage of
the business with relyintr upon ilie case of
Hatfield and Hatfield, which appeared to rao
alone aufficieotto answer every argument upoa
ooUusioo,

SS7J

le GEOBGE III.

Trial ijthe Duchess nf Kingilim,

l«*

It it pretl; lin^Ur, ihat u HttfielJ aod I jodge, nf high cbaraclcr lor his abililiei
HbiKgIiI wu a case iu equiiy, aa<l Iwo of llie triiei(i it]' : a grealcr man |ii-rliBp9 never
si em in eat fijuiiT-couiitei in tii'n Litiiriloin the lieaJ iil'iliai court,

I

appear fur iIim proMCUlioo.lbat nHilier ul'iliem
tlinui;llt fit to ({'apple irilb lliat caip. Tliey
fuuail in ibe principles of ilie court of equity.
Ibat it wai not tn be ansirereit, nnJ Iberel'ore
pruifenily paued it nrer to tbose who slionlil
thiak fit loeoEail'e wiih it. A tromtn cliiimeil
40f, a year, whicb was Tested in a tru«ieo for
her use: but there was anoilierilef i«e of aa an-
nuity of lot. a year out of lands, and a lei^cy
directly (^iien lier. Tbe tiirmer hugband re-
leased lo the heir at law of the secoml busbtnd,
nhu hid made these prorisions for his lup-

ned wife. She files her ImII. Tlie first bus-
d in bis answer states all tbe circumtlances
of their raarriage, the lime, the place, the mi-
nister, and the persons present. In arnid the el-
lect of the release. A suit of jaciilation is ia-
aliluted ID the Eculesiastical Court by colbniion
wilh the second husband, afler proof of ibe
niarriage in the cause in the Excbeijuer, aud
ebe is declared a separate womaD. and the
vidnw of the deceased. The Court of Ex-
cbeqner received the sentence as conclusive evi-
dence. On ao appeal to the House of Lords,
the decree i» iffirined.

If it bad Blood merely upon Ibe printed esses
in the House of Lords, I should cvnceive yuur
lordsbips could not have entertained a duubt ;
but ibe caiie ii mentioned in sir Juhn !S(rBii)(e's
Rpjiorts, when be was not a young wim ; and
Ibe ground of the del enni nation is staled lo be,
Ibat the sentence was conclusive. The case is
mentioned also by Mr. Viner in bis Abriilg-
menl ; where he adds, that the House of Lords
held, thst a sentence in (he Eircleiiaslical
Court could not be impeached. Ibou^b the
proceedings were feiut and Uy collusion. This
clear snd direct aathorily is ti> be got rid of
uid avoided in this roaDner: Mr. Viner is a
DODsensical writer; you are not to give credit

been pressed la give
mire favourable altenliun lo the wishes of '
prosecutor, as tbt! present is a criminal pri
in^. h it the principle or gYnuis of this c«i
Iry 10 be more active to find out and puoi
criiiite, than to give effect to civil rights?

My lords, there is a benignity in ihe !■•*■
this country to (he fraihiec of mankind. T*
judges are alleulife and epsI'ius thai the c
justice of ihe country be strictly adminiilei
and will not suffer any cnniritance, chica
accident, or neijlecl, lo delealltj but io i
minal prosecutions they are humane, ll
make great allowances, and ore not over-ao
nus to discover criminals. This obi^ervatjoi
verified by daily practice. In a civil c*bm^
the trial comes on before the pUinlilT ezp ~
it, if a witness be out of Ihe way, if the vet
be In favour ofa defendant contranr lo the
dcnce, Ihe verdict is set aiide, and a new i
ordered and justice done : hut in a crim
prosecution, if the verdict be in favour of _
defendant, though it ariies from the abaeni
of a witness, or from any other accident, oi
be given contrary to the clearest and mosti
lisfaclory pmof of guilt, Ihougli not one of I
jury can shew his face without a blush, yeltl
vet^'ct slanila, and a new trial is never granla
It was even denied in perjury committed in t
lime of kipg William, where Ihe deliendat
bad Ihe n ickedneas to corrupt Ibe witnesses I
the prosecution lo keep out uf Ihe way ; I
wheoever, and by whatever means, there is i
acquittal in a criminal pruseculion, the icene
closeil and the curlain drojis.

I cannot, my lords, sit down without t
minding your lordships, ibat in the course
the argument have been cited many deWm
nations in the temporal courts by judges wl
bad no partiality to the ecclesiattiesi juriadi
lion, Bckniiwledging their aulborily, and d
daring und voce, thai in all peases, where tb
have an exclusive jurisdiction, Ihe sentence
final and conclusive ; there is nut an eicepii
tu be found in the buak«. Some of these i
clarations were made, when the judge* of I
temporal courts were exceedingly jealotM

I

tn what he sayif. I should have hoped tli

gratitude tu Sir. Viner's meiiiury would have

repressed that observation ; he has sliorlened

the hours ul' the labour of lawyers, aad more

Darticularty of those who ire in great business.

But to esses in themselves irrefragable, with

decisions upon the very poini, answers caonot , „ ., . -

be given by argument ; unless your lordships ' the eccleHisslicBl, and when they were evm

will dignity tbose obserTotions with the naoie

of argument.

The caw of ladv Mayo was cited from Doc-
tors Commons, w}iioli is very material tn the
cause now before your lordships, ll was a
case of fraud and cnllusian, discovered in the
Prerogative Court upon the appeal, which had
been practised iu the Consistory Court of the
bishop of Loudon. The fraud was apparent ;
he that ran might read it: but what taid the
judge of the Prerogative Court ? You must go
«nto Ibe Consistory Court, where the fraud was
commilled ; 1 can aive you no relief. There
the collusioD must be gone into, ihere redress
may be had, there the honour ut Ibe court will
be tiniljcated. This is the opinion of a bring

the present case call upon yonrlgi)
break down the boundaries which tf
Bxed between the tempm
and ecclesiastical courts, or lo invade Utci
rules of decision which have been Iransniilt
from iheearlieat of limesP Is there an auih
rity lo warrant your lordsbipn in taking hi 4
Ira ordinary a slepP

Is it expected, that yuur lorilshtps are to
more jealous in finding out crimes and ptinii)
ing oifendets than your ancestora t and lo m
complisli thusr purposes, thai yuu will clisregK
the antbnriiies of Ibe law, Ibe practice of agi
sod the spirit of the English constitution /

If Ibe matter, iostead of being clear to t

^oT- Bigatky.

.^Wn-ofOw noble UJy at the l>ar, as I concei
it U W, bad been only dnubtFul, 1 ua persuaded
Jwir lortlshjix wouici |ir(inuunce an acquiilal,
ItUtbeiluly and practice of every juil);^ in
cnBliial proaeculioQ to let the jury know, ihtil,
tf'lb*fe bui^ ■ doubt in the cause, they oughi
ts fire the turn uf the scale in liiiour of iauo-
CtBce, aod acquit the prisoaer.

Can your lordBhipa, after an argutoent of
Ibrecday*, in wbicb so many rra|ieclable de-
Icrtninalioas in favour of ttiL- eculesiustioal JuriH-
foioD b*ve been cited, lay yuur hands upon
jMr breaslt and say. Here is qo doubt ; the
Mience of (be Eccleslasticnl Court, ujbon ibi
bilh oTirliicbi and by ibe adtice of a |ier8ou of
Ih* first kiiow]ed);e and abilities in the ecclesi-
uueal lav the noble lady acted, is a oulUty ajid
of M avail ; sod that she lia< iulcnlionally vii
llMd the laws of lier country and becoule
Maar
Hy lordi, \ will not permit myself to

pect any one of your lordsliips

nch BD opiuion ; and I sit down wiiu me mos'
prrfect confidence, that by your lurdshipi
jaJgmenl the noble lady at the bar will be dis'
oined from aoy further attendance ui>an yuur
bnbbrpa.

Lord High Steward. A noble lord aiks,
wtiether in ibai case you citeil. where an ac-
' '.■•>Ti WBB brought a^inst Hr. Thomas Hervey,
' '' Court upon hearing the sentence in tlieEo-
. Mistical Court refund to proceed farther ia
: or nhellier it wai, llial the cause was then
.^('codiDg in the Ecclesiastical CoucL?
I Hr. Wallace. I will give your lordsliips an
I aeemint from my memory, cooiirmed by a note
ttken ID a subsequent cause ; and if there ia
aay doubt upon thn facts, I am haiipy to ac-
qwunt y on r lordships, lliat you will Iiate much
beCUET iiiformailou unon the buIijccI from the
0oUe jud|^ who irieit the cause. Mr. Herrey
hhI Ibe lady bad lived srparate several years,
dnnag which lime a ciedilor, who had fur-
aiabed Iter vin\\ necessaries, brought an action
•C)UO«l Mr. Hervey. He denied bi» Marriage.
Then had uot been a sentence at that time in
iii» EccIesinBlical Court. The jury vtere sa-
iwftol vritli the etideuce of ibe marriaf;e, and
ftuad a Terdict acBinst Mr. Hervey. — Another
ereditiM-, who bad furnixhed neceasaries lor Ilie
laily aTtrnvards, brought blsBdiuo against Ur.
Ildrey. and was prntidrd with the same evi-
Xatcc which bad satisfied the former jury : but
WtMven the time of the former trial and the
IfuU ofthis cause, a suit of juclilalion had beEO
uatituieil in the Bcctesiastical Court by Mr.
i&er*ej agaiosi the lady, and a sentence pro-
nauDced >o hia liivour, which was olfered in
(•JdeDce. The learned Judge conceiveil hrm-
•rU bwnd by that sentence, as the judgment
af « oo'i:) <il coiopetent jurlsdiciiun: there wa*
IB isiirMiiiDu upon the creditor, no occasinu
tar an aiariu by the ileciHioD, the debt was nut

— > jm.,Qg cobabilalioD, no actof Illr.

had induced the creditor to furnish
la hec at hti wife, be

A. D. 1776. [530

the relation ; the plaiotifT gave credit upon ih«
idarriace itself, and theretijre took upon him to
salisfyibe Court that llirre was a legal mar-
riaae : the sentcrrice of the EccleEiasiieul Court
liad determined the point: the Judge appre*
headed that the question was closed, and that
lie was liuund to give faith and credit to tlia
sentence ; and the plalutifT fuiletl on account
of the Ei^nleiice, though it was atterwards re-
versed upon auajipeBl.*

Doctor Cahert. My lords, the question
Brining upon the sentence which has luhen up
BO much of your lordships' lime, seems now
confined to a narrower compass iban we at firsC
apprehended.

My lords, when the counsel fur the nobis
duchess at your lordshiiw' bar nll'frcil the sen-
leoce in the EccleEiaitical Court to be read ua
conclusive evidence, it was desired by the
counsel on the other side, that the ri-il of the
|)roceedini;s in that cause might likewise b«
read. This raised a belief in us, Ihni excep-
tion wnuld be taken to the nature of this sen-
tence in particular, as differing from seuteacea
in other matrimouial causes.

Hy lords, we apprehended it wnuld be said, as
indeed it was by some of the counsel on iho
otherside, that a proceeding in a cause of jucti-
tation, when the issue of it was, pronouncing
fur the Jactitation, and the defendant enjoined
silence (let the proceeding in that cause have
been what it might,) would not amount to a:

Cosilive decree against a marriage, hut it would
e merely a dismission of Ihe party ; that it
would amount to no more than this, that no-
thing had been proted fur the present, and that*
the judgment never would become decretal.

My Fords, 1 take it to be a
speak of proceedings iu such a

a that

, . however, we have it
dersiand, iu concession from the counsel uo the
lier siile, and we are perti^ctly agreed about
c nature of the seuleiice: ii has been allowed,
is as com plele a sentence against a marriage,
if it had IwcD proDOUDced in acauseof nultily'
of marriage.

My lords, a coDcessiun of this aort coming
rom the counsel on the other side, your lord-
iliipa will see, must leave Ihem much embar-
rassed : first, by their oho coitceasiuoa of the
effect)! similar judgments hare hail in other
questions ; and likewise by Ihe act of parlia-
uient, upua nlitch alone this proseculioD tiaa
be founded.

My lords, it ia conceded, (hut some jtidg-
lents of the ecclesiastical courts arc final as
< matrimony ; but if they concede that sonia
'e, there Is now remaining no objection to this
I particular. Your lordship* will see how
luch this is Bupporled by the sUtule on whicli
the prosecution is fouadetl ; because the excep'
tion* out of tbal statute go directly to those seo-
ea with which it is now nlloHcd this is tipon

Penke's Law of l£Fi<Jciice, c, S, J 9,

p. 80, Nole.
3M

631]

18 GEORGS IIL Trial of ike Duchess of Kingston,

[59!

a footiDg^. Can it therefore with aoT propriety I against Vincent, where there was a proaecotio]

be now ur^, that it oufffat not to be rec^ved
as cooclusiTe, because there is a possibility of
setting it aside ? This seemed astonishing to
the learned gpntleman who spoke first on the
other side ; that, as it is allowed that the court
who pafsed that sentence could at any tio\e
ojM)n proper evidence reverse it, it should be
urged in this judicature as coficlusive upon
your lordRhipH. Many instances have heen
given, H here sentence^ not more final or irre-
▼oenble than this have? been allowed in tiie
common law courts. If in a cause of nullitVt
a marriaj;e be proDonneed to be void, it would
not he contended a moment, hut that such a
sentence is within the exception of the act ;
and no person mar/ying again after soch a sen-
tence could be an object of punishment under
that act Jt is surely therefore a very consi-
derable concession, and sufficient to justify the
reliance we have upon It, that it is a positive
and direct sentence against the marriage.

My lords, the ground of some of the excep-
tions out of the act of parliament seems to be
the notoriety of the stale of the party, which
leaves no room for imposition on the person
with whom the second marriage is contracted;
for the act has not in view merely the punish-
ment of the offence as against morslity , because
the exceptions are such which allow in many
cases a second marriage, though the first is
really in force. The objet:t therefore of the
act of parliament seems to be this, that there
should be no deceit put upon the person : it is
expressed by the preamble in these words:
'* Whereas many persons going from one
county to another, or into places where they
are not known, marry agam ; therefore be H
enacted :" but when there has been any pro-
ceeding of this sort, when there has been any
question litigated in the Ecclesiastical Court re-
lative to that marriage, and when the sentence
of the Court is against that marriac^e, 1 believe
ii is no strain of the interpretation of that act, to
suppose it is one of those cases, in which no
prosecutiott of this sort ouuht to be carried on.

My lords, the variety of instances that have
been produced to shew, that whenever any
sentence of this sort has been produced, it has
been constantly attended to by all civil jurisdic-
tions, will not bear a contradiction ; nothin';;'
can be more clear. To all the cases that have
heen quoted on our side, 1 do not apprehend
that any answer has been given to anect their
authority ; what is more, there has been no
case cited on the other side : therefore, if a
series of authorities will establish any point, it
is to be conceded, that in all civil cases a sen-
tence thus pronounced by a court havioe a
competent jurisdiction, where the question has
come before that court, marriage or not mar-
riage, will be received. The question then will
come to this : if it can he established, that in
civil suits it would be received, ought it not to
have the same effect in a criminal prosecution P

1^1 y lords, for that purpose there have been
cited to your lordships ; that of the King

for a fwgery, and the probate was received a
conclusive evidence against that forgery.

My lords, in answer to that it was arg«
onlv, that it was a cas^ that was too stroag
snd they could not ic'i^e credit to the reportei
That answer seems by no means satisfactory
e8|)ecially as it does not meet with support froo
any subsequent authority, siuce none has Iimi
quoted that comes up to the |M>int. Two o
three cases have been mentioned; hot wbei
they are considered, and the circumstance
they were attended with, your lordships wi!
find, it does not appesr that they come up t
the case in question. In two of these instaneei
the supposed testators were living. My lordi
it was a gross imitositiun, and the whole pro
ceeding a mere mistake, and nothing mom
The testator came into court to give evidence
To he sure, a probate under these circoin
stances could not he attended to ; it could ns
be a probate at all ; nor could it be contended
that the probate of the will of a living pcrwH
coold be received in evidence. I know tb
treatment it received in the Court of Prerogn
tive in that case, where Stirling was execute
for a forgery. I enquired, to see how thi
stands, a^ I do not find there were any pro
ceedioga to reverse or revoke the probate ;* ih
thin^ was too ahburd to require a judicial dii
qnisition. 1 was informal, a pen was drawi
through tlie probate, and on the margin wa
wriuen the word ' void.' Tliere were tw^
other cases mentioned of indictments for fof)g
iug H ills, where it was said that ther« was i
probate existing ; but it does not appea
throughout these cases, that any mention wa
made of the probate at the trial, or that th« ex
ception was taken lor the prisoners. We point
ed out to your lordships the great iuconveni<
ence that would arise I'rum going on to eoquin
into questions of this sort in two different judi
catures. It was asserted

A Lord, Whether the scratch with a pci
throiii^h the probate, in the case of Stirling,
was done by any order of the Court?

Dr. Calvert* Not by any judicial order, 1
believe. I apprehend it never came judicisllv
before the Court. By whom it was done I
know not : I am not acquainted with that

My lords, it was asseiied by the counsel oa
the other side, that no decision of a civil nature
could be applied to any crimiual question : It
was asserted, but 1 did not find that it was sup-
ported by any principles or authorities.

My lords, we, on the other. hand, did sobiiiil
to your brdships, that the inconveniences arii*
iug from such different enquiries miglit be ex-
tremely K^reat ; for if they produce difierfst
judgmenta upon the same point, the peraosli
who should be affected and interested oodtf
them, under such a predicament might find il
difficult to know what should be their daty«

* See Mr. Leach's adoption of the
tion as to this ilready noticed, p, 4d0.

iSS\

Jbr Bfgan^.

A. D. ifre.

[SM

We pointed out, that in case the sentence now

in qoestion remains in force, which I trust it

will, notwithstandiofT sny judgment that may

he passed in this Court ; yet if yon should

proceed to censure the person thus separated

from the aupposed former hushand, from this

eaotrariety of judgments the greatest confusion

would arise : mr you would censure the person

for marrying again, as being the wife of that

hosbaod, of whom it had heen direcUy in issue

sad determined that she was nerer the wife.

This, my lords, appoars to us a very consitler-

aUe absurdity. The only answer 'I heard to

that was rather avowing the inconvenience

than remofing it When it was asked, in

what predicament would a woman stand under

IhtfM circumstances f it was said, she would be

a wife to criminal purposes, hut not so as to

dfil considerations. What the distinction

■cant, I confess I do not well understand ;

bat it was said, the noble lady at the bar should

be ooDsidered as a wife to all criminal purposes,

bceanse persons cannot absolve themselves

fram their publie duties. 1 never understood,

that with rigard to matrimony any party could

ibsolve himself from his private duties neither :

I always understood it, as far aa his own act

flMid affect it, to he an indelible obligation.

Bot what are the duties to the public, which a

pwiott in this situation ahould be answerable

ftr? A woman by law separated from, and

ifea pronounced not to be the wife of, the

nppoaed husband, and to whom she cannot

niuro ; 1 do not know what duties there are,

IbMshe should be answerable to the public for.

Ills contended, that of not marrying again ;

bat thb is expressly contrary to the meaning

if the act itself, which provides that in many

CMCB, even where the former marriage remains

is force, yet a second marriage shall not be

ciiminal : as in the case of a sei»arution it tnerud

H tkoro there is no d«)ubt, that the parties re-

■lia man and wife as much as if they had

fe^er been divorced ; nay, it is so merely a

laporary separation, that there is no occasion

fw a judicial proceeding to bring them toge*

Iber again ; for whenever the parties chuse to

cohabit, they may live together, and are as

comidetely man ami wife as if no separation

bid hap|ieoed. It has been obser>ed, that

■Mat inconveniences, which were removed by

Ibe late marritge-act, uiitfht be introduced

■gain under ihetie suits ot jactitation: it is

certainly somewhat unintelligible how these

toils could be applied to tliose purposas.

Tbe grievance mentionnl is this, that single

vomen contracting debts did, before that

let of parliament, procure themselves to be

chmtestiDely married to prnwns with whom

iWr never intende<l to cohabit, but merely

*itb a view fraudulently to pr<itect themselves

r' ist their creditors. Now, can it be argued,
by going into the Erclesiastical Court,
lod abtainiiig a sentence, in a cause of jsctita-
liso, thai Md woii!d be answered F What!
vbcn a woDaan wants a husband to protect her
hm htf debts, ahall the get herKlf fraudu-

lentl V released from her husband F It seems it
woofd have quite a contrary effect, and cannoi
answer the purpose for which it would be in-
tended. If any of the excellent regulations
made by that act are in danger of being io-
fringed upon by undoe practices, it were worthy
the legislature to attend to it, and provide against
them ; but a court of justice cannot for such
reasons depart from ancient and established
mmles of proceedings : and in this case these
considerations ought not to have the leasl
weight, because there is not any ground for tbe
apprehension. In the proceedings in this cri-
minal court, therefore, your lordships ought te
receive these sentences upon tlie verv sam^ .

Jirinciples, or indeed broader than a civil court:
or wno ahall pretend to say, that in a civil
question parties may avail themselves of such %
suit ? But where a person is brought merely to
answer for a crime, and for the purpoae of pa«
nishment, who shsll say, that it is consonant t^
the principles of law that such a defence should
not avail r So rigorous a determination in cri-
minal cases has not been supported on any au-
thority, or established on any principle. Upo^
the authorities therefore which have fa«eii
quoted, and which remain unahaken and uncon-
tradicted, we do submit to your lordships, that
these two (loints are well established. But it
has been said, that we are now arguing foir
what is not open to he considered on the ^
neral principles of law : because this question
hss been already decided by the very act upoa
which the prosecution is now depending : for
when an act of parliament makes some excep-
tions, the true interpretation of that act is, that
all cases, which sre not within the exceptioiMl,
are within the prohibition.

My lords, supposing that to he a good prin-
ciple of interpretation, yet it may very w«U
and with propriety he contended, that the case
that is now offered, I mean the sentence pnn
nouncing against this marriage in a cause of
jacliution, is within the exceptions of tbe act
of parliament.

My lords, the two exceptions are, that it
shall not extend to any person, who is at tbe
time of such marriage divorced by any sentence
had in the Ecclesiastical Court ; or to any
person, where the former marriage hath been,
or hereafter rhall be, by sentence in any Eccle-
sisictical Court, decreed to be void and of no
effect

My lords, it will be difficult to explain the
latter words, connected with the provision in
the former clause, without ukiug in the very
sentence which is now under consideraiioq.
The general words in the 6nH clause are,
that it shall not extend to those cases, in
which at the time of such marriage the persOQ
was divorced by any sentence of the Ecclesias-
tical Court.

Now, my lords, the word * divorce' has always
been applied, not only to separations d mentd
et Ihorv but to divorcc% d vinculo mairvHvniu
The first clause therefore, under the ffener^l
word of « divorce,' seems to take U botE ihcae

S35]

id GEoncfe III.

Trial of the Duchtu of Kingstattf

casM, whether it be t temporary feparation
for ailullery or cruelty* or whether it be a
diTorce i vinculo mmi'rimoniL, If that claute
applies to Ibese two caiet, I wooU ask wlfat is
the meaoin|;orthe second, that upeaks of sen-
tences, declarinff a marriage null and void to
all effects ? A sentence pronounrtn^ a mar-
ria^ null and void, an<l of no effect, is
the same thini; as a divorce a rinailo ma-
irimonu; because if the marriai^e has ever
been a true and le^al marria^^e, it is well
known, that no judicial power in this king-
dom can put an end to it. In order there-
fire to fpve every part of thiv act some mean-
ingr, it ouf^ht to be understood, that the legisla-
ture by those general words roust mean any
aentence whatever, by which the Ecclesiastical
Court should have pronounced, that there is no
marrianre, or that a marriage is void ; it being
the purport and the general object of this act
to save not only the jurisdiction of the Ecclesi-
astical Court (that is not what I am contending
for,) but it is to save the innocence of the per-
aoiis acting under such sentences: because
where that question has been agitated in a public
court (for the leginlature Hoes not suppose, as
^me of the counsel on the other side have un-
warrantably supposed, it to be a private and
ielandestine transaction ; but) the constitution
supposes every court to be open and public, and
proceedings there to be before the face of the
world : every body may see and know them,
Sf they please ; and whifu there has been this
public sentence of any constitutional court, the
meaning, the equity of the act most be, that
any one of tliene sentences shall juMify the
varty acting under it. To make a distinction
Detween a cause of nullity and a cause of jacti-
tation, I apprehend can he founded upon no-
thing, but not considering the nature of the
proceeiling^ ; liecause I can hanlly put a case,
which would be a proper subject for a suit of
nullity, but it might likewise be proceeded to
the same effect in a suit of jactitation : the
onlv difference is, the proof being put upon the
different party. 8up|KHe a person means to
dispute the validity of his marna;;e ; he may;
if he pleases, proceed in a cause of nullity of
inarriage; in which case he must Ktate the
circumstances of his marriage, and the prayer
of his libel will be, that under these circum-
stances his marriage may be pronounced void :
the sentence then would be direct to that point.
Suppose on the other hand, he chuses to bring
m suit of jactitation, and charges that the
woman has claimed him to be her husband : if
ahe justifies that jactitation by pleading her
inarriage, it is incumbent on her then to state
the case, and to go into the question, whether
it is a marriageor no : and if in that justificatory
plea] such circumstancoft be stated, as would
Jiave been the contents of the libel in a cause of
nullity, the sentence, I contend, would have
precisely the same effect.

My lords. I have known more instances than
cue to justify what 1 assert. The first suit
that erer waa brought up6a the Marriage Act

to avoid a marriage by reason of B
where the party under age was marric
cence without the consent of parents, y
suit of jactitation : it was the case <
and Waldeck in 1760. I kioked into
teoce that was pronuanced in that ca
it was precisely in the same words aa i
in question. tVill any body contend t
not an effectual sentence, 'declaring t
riage between these parties void ? i <
ships see it is a fallacy therefore to i
this method of proceeding in a cause
titation will not aa effectually bring on I
tion of marriage, as a cause of nullity
riage. Tbere were two other case* af
upon that act, that were brought in t
way ; neither of them came to a deci
the method of proceeding was thesami
wards there was a suit upon that act
liament brought as a cause of nullity
riage. I rennemher it being made a <
whether even tliat was a proper way
ceeding ; but the judge was of opini
the party might have proceeded in eiti
conceiving, I presume, that the sentem
way would be as effectual as in tli
With what propriety then can it be s
was on the other side, that all procee
causes for jactitation of marriage mua
an ill intent?

My lords, it doth not apply at al
manner of proceedings. Suppose it tc
what was asserted by the counsel, ar
lieve it is in a great measure so, tli
suits were chiefly used for the purpos
quiring into contracts of marriage ; f
the Marriage Act put an end to such c
it was difl^ult for parties to know,
they had entered into such contracts f
bind them or no ; with \\ hat propriei
l)e 5aid, that if a suit of jartitatioii be
upon such contract, it must be with i
tentP 1 have mentioned, that these si
been brought under the Marriage i
therefore merely upon the question of ii
In those cases tlu* sentences are precis
ceived in the same words with the sei
this cause : and if a man \^as to be
again ai\er such a sentence pronounce
it be ar^vued one moment, that he %
guilty of polygamy under this statute
would not, it must be, because such a
is on the same footing, as if it had be
in a cause of nullity. For, if a sentei
in a cause of nullity was to be offerer
elusive, and before you entered into
upon the fact, your lordships would
the proper time to offer it, there wool
occasion to go into the question ; bee
the fact turn out what it might, that
would be satisfactory, that the marr
void, that is, that there was no marri
subsisting between the parties. Wh
assertion often then in a suit of jac
and what was the assertion in the ca
before your lordships f The plaintiff I
hit claim opoD the lady itatea, that i

»3TJ

for Bigamy.

A. D. 1776.

C53i

Of

a
r
uf

tteoltr tioM he Wu mtrried, states the dream*
stances, states the persoos present: he at-
tempts to prove this fact. The judg^ having
eoBsidered the proofs, and gone into the quies-
tkm, determined that there was no marriage,
er, ID other words, that the marriage is of none
ei^ : that is, that thti marriage that is plead-
ed there can have no effect ; for he pronounces,
that, as far as to him appears, the parly is a
spinster, and free from all matrimonial con-
tracts. If we are right then in hrint^ing this
cause within the exceptions of the act, everv
slgsetkm 1 should conceive, that can be stated,
n removed under the express regulation of the
•et of parliament ; because the legislature
tikiag this matter into their consideration, well
aware, as it must.be supposed, of what incon-
veaiences might be argued to arise, have still
CMeted, that these sentences existing, the per-
Mi marrying again shall not be within the act
if parliament.

Uoder these considerations, the reply having
kco so fully and so ably gone into by the gen-
tlman who went before me, I shall take up
yoor lordships' time no longer, than in hoping
jsa will be of opinion, that this sentence com-
isg within the exceptions of ihe act, it would
k improper to go into any proof of the fact:
smI therefore I hope your lordships will admit
of this plea of the defendant

lorif President of the Council, My lords,
I MM? e your lordships to adjourn to the Cham-
ber of Parliament. — Lords. Ay, ay.

Lord High Steward. This House is adjourn-
ed to the Chamber of Parliament.

The Lords and others returned to the Cham-
fer of Parliament iu the same order they came
^0, The prisoner retired from the bar.

After some time passed in the Chamber of
i^iameut*, the Lords and others came bick

* Die Veneris, 19 Aprilis, 1776.

Ordered by the Lords spiritual and temporal
>e parliament asembled, that the following
imstioDS be put to the Juilges, viz.

1. Whether a sentence of the spiritual Court
Against a marriage in a suit for jactitation of
Carriage is conclusive evidence so as to stop
Mie oouosel for the crown from proving the
Md marritM^e in an indictment for polygamy ?

S. Whether admitting such sentence to be
Conclusive upon such indictment, the counsel
^ the crown may be admitted" to avoid the
effect of such sentence, by proving the same
^ have been obtained by fraud or collusion ?

Whereupon, the Lord Chief Justice of the
court of Common Pleas, (Sir William Be Gre^f,
iAerwards lord Walsingham), having con-
kmd with the rest of the Judges present, de-
Kvered their nnanioious Opinion upon the said
ftucitioiii, with his reasons, as follow, viz.

Ml lords ; My kird chief baron, (sir Sidney
fllmrd Saiytbe), aot) the rest of my brethren,

from thence in the same order : and the peers
being seated, and the Lord High Steward i*
his chair, the duchess of Kingston was again
brought to the bar..

have desired me to deliver their answer to the
questions your lordships have been pleased t6
propound to us.

That our opinion may be the better under-
stood, it is necessary to make some observa-
tions on what has passed in argument upon the
suljectt

What has been said at the bar is certainly
true, as a general principle, that a transaction
between two parties, in judicial proceedings,
ought not to be binding upon a third ; for It
would be unjust to bind any person who could
not be admitted to make a defence, or to exa-
mine witnesses, or to appeal from a judgment
he might think erroneous ; and therefore the
depositions of witnesses in another cause in proof
of a fact, the verdict of a jury finding the fact,
and the judgment of the court upon facts found;
although evidence against the parties, and all
claiming under them, are not, in general, to be
used to the prejudice of strangers. There are
some exceptions to this general rule, (ii>unded
upon particular reasons, but not being appll*
cable to the present subject, it is unnecessary
to state them.

From the variety of cases relative to judg-
ments being given in evidence in civil suits,
these two deductions seem to follow as gene-
rally true: first, that the judgment of a court
of . concurrent jurisdiction, directly upon the
point, is as a plea, a bar, or as evidence, con*
elusive, between the same parties, upon the
same matter, directly in question in another
court: secondly, that the judgment of a court
of exclusive jurisdiction, directly upon the
point, is, in like manner, conclusive upon the
same mutter, between the same parties, coming
incidentally in question in another court, for m
different purpose. "But neither the judgment
of a concurrent or exclusive jurisdiction is evi-
dence, of any matter which came collaterally
in question, though within their jurisdiction ;
nor of any matter incidentally cognizable ; nor
of any matter to be inferred by argument from
the judgment.

Upon the subject of marriage, the Spiritual
Court has the sole and exclusive cognizance of
questioning and deciding, directly, the legality
of marriage ; and of enforcing, s|»ecifically, the
rights and obligations respecting persons de-
pendMig upon it ; but the temporal courts have
the sole co<rnizance of examining and deciding
upon all tem|K)ral rights of pro|»erty ; and, so
far as such rights aie concerned, they have the
inherent power of deciding incidentally, either
upon the fact, or the legality of marriage,
where they lie in the way to the decision of
the proper objects of their jurisdiction : they
do not want or require the aid of the spiritual
courts; nor has the law provided any legal
means of sending to them for their opiniou ;
except where, in the case of marriage, %n iMUtl

539]

1G GEORGE III.

Trial iifthe Ducheu of Kingslor.

lard High Steward. Mr. Atloiney Gttieral,
you otay go ea lo Blale your charge.

Attorney Genrral. My lortU, il Ktto% to be
tnaUfrofjusI BUT|irize, thnl, before llie ciin-
I of tlie la^ ceoiury, no leciilar

[UH

is joiueit upon llic rpcaril in ctrlain real wriU,
upon ihelegalily ara muTiiiRe, or ils imme-
diate c'ODxeqiivnce, " general bastardy ;" or,
in like raanner, in some oilier particular ia-
■tancei, lyin^ peculiarly in tbe knowlcge or
iheir cnurta, a* prnreaiian, deprj*stioD, ami
WDoeotbers; in tlicM casea, upon the Uiue to
formed, tbe mode of Iryiag the questinii i* by
lererence to tlie ordioary, and hi* certilicate,
when returoed, receii f d, and entered upon the
record in the temporal courts, is a per|<etiiBl
knd concluiiTe etidence against all llie world
upon that point ; which eiiJieptionable extent,
on whaleier reasnna foundrd. was the occasiim
oflhe Biatute of tbe 9tb of Henry 6, reqninn);
certain iiublic proclamations lo be made fur
(leraoos tiilereittd to come in, and be parties lo
ihe pmceedinj. But, even in these cases, If
tlie ordinary should return do certificate, or an
ioiutticient oue ; or, if tbe issui; is accompa-
nied «itb any special ciicurostances, as if a
second isaue, triable by a jury, it formed upon
tbe snme record ; or, if ibe effect of the same
issue is put into another fnrm, a jury is to de-
cide, and not tbe ordianry to certify, the truth ;
«nd tu ibis purpose sir William .Siauuford men-
liniis a remarkable instance. Bigamy was
triable by tbe bishop's cerlilicale; but if the
prisoner, lo avoid tbe cbsri^e, pleads that the
%econd espousals were null and void, because
£e bad a farmer wife liriug, this special bt^niy
was Dot to be tried by the bishop's certificate.

So that Ibe trial of marriage, either as lo le-
gality, or tact, wac not absolutely, and from its
nature, an object ulienijori.

Thure Has a time, wben tbe spiritual courla
wished that their determioalions might in all
caiiHS be receiird as authentic in the temporal
courU; and in ibsl solemn assembly of the
kiufi, the peen, the bishops, and judg-es, con-
vened for the purpose of settling the demands
«f tbe church, by Edward the second, one of
the claims naa expressed in these h ords : " Si
■liqua cau'a, icl oegolium, cujus cognitio
snectat ad foium ecclesiosticum, et coram ec-

tum, el Iraniiicril in rem judicatam, nee per ap-
pellalioneu) fuerit aiiapeDsum ; et pnslmodum,
cnram judice teculari, super eadem re inter
n [lersonaF questio moieatur, et prnvetur

sr,;

<el

talis

-OBKCulori noD admitiatur." The ansn
which demand was expressed in this msnuer:
<■ Quandu eadem causa, ditersis rationihus co-
nm jiidicihusf cclesiosticis, el setulatibus, ten-
tilatur, dicunt quod (non obstante ecclesiaslica
jadicio) curia rrgis ipsum tractet negoiium, ut
>ibi expedire videtur." For which lord Coke
(irecthis reason, second lDStilute,c. £3. " Fur
like spiritual judges' pruceedii>{;i are for tlie

punishment had been provided for a crime <
Ibis maliguaot complexion and peraiciout «]

Perhaps, tbe innocence of simpler »ge», I
tbe more prevailing influence of religion, (
the leTcrily of ecclesiastical censures, togettu

correction of ilie spiritual inner man, and ' pi
' salute apims.' to <>njniQ him pFoance ; at
■ be judges of the common Inw proceed lo gil _
damages and reconipence for ibe wrong utt
injury done ;" and then adds, " and >o thi^ "^
tide H a» tleserireilly rejected. "

And Ibe same demamt was pi.tde, and re-
ceived the same aniwer, in the third year of
kini; Janes the SiEt.

Il is to he observrd, that this demand related
only to civil suits Iteiween the same parlies ;
and that the sentence should lie received as a
plea in bar. Ilul ibis atlenipt and miscarriage
did not prevent ibe lempural courts fram shew
inif the same respect lo tlieir prnceedings, aa
ibcy did In those in other courts. And lliere.
fore where, in civil causes, they found Ihe quea-
liou of marriage directly determined by theec-
cletiaslical courts, they received the senleiK^
thouzh not as a plea, yet as proof of the fact I
it being an authority accreditrd in ■ judtnal
proceeding by a court of competent jatisdio'
lion ; but still ihey received it upon iDe aaiM
principles, and «nb]ecl to the same rulea, by
which they admit the acts of other court*.

Hence a sentence of nullity, and a aenlettc*
iu affirmance of a marriage, have been reGci*e4
39 conclusive etidence on a i[iiestion of legili-
macy arising incidentally upon a claim to •
real estate.

A seutence in a rsose nfjselitalion has beeo
received upon a title in rjrcicueat, as esidpoe*
jgsinal a marriage, and, in hke manner in peiv
B'lnal action:!, iinincdiaiety Ii>undi!d on a sup-
posed marriage.

So a direct lenience, in a suit upon a promise
of marriage, against tbe crmlracl, has been ad-
milled as evidence agaiusl such contract, in an
action brought upon ihe same promiw for )l»-
mages, it being a direct senlenee of a con^
pelent court, disproving the ground of tbe a^

ID a personal action a
upnn a lupposeil coverture

But in all these cases, the parlies to the auitf,
or at least the purlies against whom Ihe eti-
dence vtas received, were paities lo the ten-
lence, and bad acquiesced under it ; or claini«il
under those who were parlies, and bad tti-
quicsced.

But althnagb tbe law stands thus wi(h n-
gard lo civil suits, proceedings in mallcra of
crime, and especially of felony, fall undvrft
different consideration : first, becauae the pa^
lies are not the same ; for the king, in wboiB
Ibe trust of prosecuting public ofleucas i* rcafe
ed, and which is execut«l by his immediate or-
ilers, or in his name by some prosecutor, i* no
parly to vivh proceedings in tlie Ecdcuutictl

541]

fir Bigamy.

wi|^ tboK calamities wliicli natunlly aod ne-
eetsarity follow the enormitj nilf^ht formerly
bate been found sufficient to restrain it.
From Ibe moment these caases ceased to

^^^ WW ■ ^^1 ^m J J ■■ ■ ■iiBii-i --. »■

Claarty and cannot be admitted to defend, eza-
mioe witnesses, in any manner intenrene, or
appeal: secondly, such doctrines would tend
to gif e the spiritual courts, which are not per*
Bitted to exercise any judicial cognizance in
matters of crime, an immediate influence in
trials for offences, and to draw the decision
firon the course of the common hiw, to which
it mlely and peculiarly belongs.

The ground of the judicial powers gtren to
eedestastical courts is, merely, of a spiritual
cQQsideration, * pro correctione morum, et pro
* nlute animse.' They are therefore addressed
Is the conscience of the party. But one great
object of temporal jurisdiction is the public
peace; and crimes against the public peace are
vkolly, and in all their parts, of temporal cog-
aiaoee alone. A felony by common law was
aho so. A felony by statute becomes so aUhe
MHaent of its institution. The temporal courts
•loae can expound the law, and judge uf the
crine, and its proofs ; in doincf so, they must
•ee wiib their own eyf s, and fry by their own
tales, that is, by the common law o'f the land ;
It is the trust and sworn duty of their office.

Wbeo the acts of Henry the eighth 6rst de-
ciiicd what marriages should be lawful, and
abtt incestuous, the temporal courts, though
tkey had before no jurisdiction, and the acts did
|ot by express words give them any upon the
psiot, decided, incidentally, upon the construe-
tioQ, declared what marriages came within the
Ufitical degrees, and prohibited the spiritual
Marts from giving or proceeding upon any
•tber construciion.

Whilst an ancient statute subsisted (2 H. 4,
15), by which personal punishment was in-
curred on holding heretical doctrines, the tem-
peral courts took notice, incidentally, whether
Ae tenet was heretical or not; for ** the king's
coarts will examine all things ordained by sta-
tate.**

When the statute of W. 3, made certain
i>lsephemous doctrines a temporal crime, the
^poral courts alone could determine, whe-
Ibertbe doctrine complained of was blasphem-
^ so as to constitute the crime.

If a roan should he indicted for taking a wo-
^ by force and marry in;; her; or for mar-

2iag a child \Tithout her father's consent ; or
' a rape, where the defence is, tliat ** the
*<MDan IS his wife ;'* in ail these cases, the
^poral courts are bound to try the prisoner
^ the roles and course of the common law,
*td iacidentally to determine what is heretical,
isd what is blasphemous ; and whetlier it was
iinarriage within the statutcr-a marriage
vitbout consent; aud whether, in the last case,
(be woman was his wife : but if they should
happen to find, that sentences, in the respective
easeh bad been eiven in the Spiritual Court
vpas the facreay , the bias phemous doctrines, the

A. D. 177e. pW

produee tb«t effaot, imagimilion can iearcdy
state a crime which calls more loodly, and in n
greater Tariety of respects, for the interposi-
tion of civil authority; which, beside the

marriage by force, the marriage without con*
•ent, and the marriage on tlie rape ; and theeoort
must receive such aenteucea as oonelnstre evi«
denoe, in the first instance, witbont looking
into the case, it would vest the subsuntial and
effective decision, though not the cogniaanee
of the crimes, in the Spiritual Court, and leave
to the jury, and the temporal courts, DOtbinff
bat a nominal form of proceeding, upon wbnt
would amount to m pre-determined convietioa
or acquittal ; which most have the effect of a
real prohilntion, ainee it wouM be in vain to
prefer an indictment, where an act of a foreiga
Gonrt aliall at once seal op the lips of the wit*
Besses, the jury, and the ootut, aud put an en-
tire slop to the proceeding.

And yet it is true, that the apiritoal ooortt
have no juriadiction, directly or indireetly, in
any matter not altogetber spiritual ; and it i«
equally true, that the temporal courts have the
sole and entire cognizance of crimes, irhieh
are wholly and altogether temporal in their
nature.

And if the rule of evidence most be, as it ie
of^en declared to be, reciprocal ; and that in
all cases, in which sentences favourable to the
prisoner, are' to be admitted aa ooncliiaive evi-
dence for him ; the aenteucea, if unfiivoarable
to the prisoner, are in like manner coodoaife
evidence against him ; in what aituatlon motC
the prisoners be, whoee life, or liberty, or pro-
perty, or fame rests on the judgments of codllSi
which have no juriadiction over them in the
predicament in wbfch they stand P and in what
situation are the judg^ of the common law,
who must condemn, on the word of an eccle-
siastical judge, without exercising any judg-
ment of their own?

The Spiritual Court alone can deprive a
clergyman. Felony is a irood cause or depri-
vation: yet in lord Hobart's Re|iorts it is held,,
that they cannot proceed to deprive for felony,
before the felony has been tried at law ; and
although, af^er conviction, they may act upon
that, and make the conviction a ground of de-
privation, neither side can prove or disprove
any thing against the verdict ; because, as that
very learned judge declares, ** it would be to
detcrmioe, tliontrh not capitally, upon a ca-
pital crime, and Uicreby judge of the nature of
the crime nod the validity of the proofs; nei-
ther of which belongs to them to do.'*

If therefore such a sentence, even upon a
matter within their jurisdiction, and berore a
felony committed, should be conclusive evi-
dence on a trial for a felony committed after,
the opinion of a judge, incompetent to the pur-
pose, resulting j[for aught appears) fruro in-
competent proois (as suppose the suppletory
oath) will direct, or rule, a jury and a court of
competent jurisdiction, witliout confronting any
witnessesi or hearing any proofs: for the

513] 16 GEORGE UI.

grosa atnl o|>eii icbdiIsI girea lo relicion,

Elies more cruel ilisappoinliiietit to the jiisi
oooiirable expedalionR of tlie pcnioiii beli
cil by it ; which tends more lo ciirru|it llm

Trial qflhf Duckeis i>f Kingtlon,

[544

quetlion aupiiusei, snil tlie truth U, that ilie
l«intKinil courl does not and caniioi examiue,
whether the Mnlence is a Jual uouclusimi Irnm
the cue, eitlivr in law or fact ; and Ihe dil6-
cuhy will QOI be reDiored by presuniiu^, Ihai
«Tery court delerminea rightly, becanse it must
be pre« limed laD, that the giarlies did iiKhi ia
bringing the I'lill and true case hefore the
cuurt ; and if Ihey did, slill ihe court will have
tteltrmintd ri)(hl1y by eccleiiasiical luirs and
rules, and nal by those laws and rules by which
criniinaU aru to iland or tall iu ilili cnuulry.

If thi; reasuu for receiviD); auth senlence Ja,
because It it the judgment of a court corajie-
teut to the enquiry ibeo before iheui ; from the
.Mine rri8on, the delerntinaliuii of two justices
of the tieace U|Hid Ihe factor vahdily uf
iMite. in adjudging a place nl' sellleuieul, may
Itereaner be olTered us evidence, and i;ive Iht
.hw lo the highest court of crituiiial juris-
dicllM,

But if a direct sentence upon the identical
.qnntion, in a milrimonial cau>>e, shonld be
*(ltni(>ed as eridence (thoug:h such
•Ifaiuil lh<: marriage has not llie force uf n tinal
tIeciskiD, that there was none) yel a
jactitation is uf a different nature ; it is ruokej
aaacaiisit ufderataiilionorJy, and tiot as a ma-
' trimoniai cause, unless where Ihe defendant
^eiulii a miirriage ; and nhellier it cominucs a
■Butriuieiilsl cause thniU|;haut, as snme say, oi
fteaae* to Ite ae on failure 4f pruvin^r a lua'r-
riage, as others hare said, slill Ihe sentence
has only a negaliru and qualified effect, tix.
" ihal liha parly bos failed la his proof, aud ihat
tbe libellani is free from all matrioiuniat cuu-
traci, as laras yvl ap[iears;" leaimg it npeu
to new proufsof iliesume marriage in ihe same
cause, or to any iiroofa uf that or any other
muriiage In anuilier cause: and if such stn-
tenc« is nu plea to a new suil there, and dues
polconcluile the court which prouunuces, it
cannot concludes court, wlijcii rf^eives ihe
Veurcnce, from go'\tig into new proofs to make
Mt ihatorany olhertuarria^e,
< So ihsi admillin^ the sentence ia its full ex-
tent and import, it only prores, that it did not
J>rl appear that ihey were murried, and not
that they were not UMrrieil al all : and, by the
Ivie laid down by lord chief justice Uolt.'such
Moleuce can be no proof uf any thin^r to be in-
ferred by ar^fumcnt f'rum it ; mid ihercfore il is
■01 tu b^ iolerreil, that thfre was nu marriage

Sauy lime or place, btcauie Ihe conrl had uoE
en siiScieut evidence to prove ■ marriage at
% particular lime and place. That scuieuCe,
IMd this judgment, may aland well lo^'cllier,
Wd bulb pmpoailione he equally true : il may
fca true, that ihe Spiritual CuuVt had nnl then
fufiicieol prouf uf the niarnai^e sp?cifie<l. and
tllal your lordships may uow, ttiilbrluusltly,
llnil sufficicDt proof of aome miiria ^e.

rily of domestic life, and lo loosen those sac
connections aud close relatioos, designed ^
Providence Iu bind the mnrnl world tuj^tbeTj
or which may creale more civil disorder,

But if il was a direct and decisive at
u|)(in the point, and, si it sland^, to be ad-
mitted IS cuuiilnsive evidence upon ibe cout^
and not to be impeached from within ; ye|
tike all other acts of ihe hi|;hest judicial autha>
rit^, it is impeachable from without : allbougl
it IS uul permitted to shew tlial Ihe court wai
mistaken, it may be shewn that tbey <rer

Fraud is an extrinsic, cntlaleral act ; n
vilialea the must solemn proceeiliu^ of Ci
ofjusticc. Lord Cuke says, il avoids alljudi<
cial nets, ecclesiastical or temporal.

lo civil suits all strangem may falsify, f
covin, either fines, or real or feigned reo
veries ; and even a recovery by a just title, il
culliuion was practised lo prevent a fair it-
fence ; and Uiis, wheiher the covin is appare
upon ihc record, as not esioiulng', or not di
manding Ibe view, or by sud'ering judgment b;
confession iir ddiiult; ur extrmsic, aa i
[ileading a release, collateral Harrauty, oroU
advanlageuus pleas.

lo criminal proceedings if an offender ii fit
victed of feluny on cuufessinu, or is outlaw*
not only the time of the feluny, bni the lelOB
itself tnay be traversed by a purchaser, whiw
conveyance would be aH'ecied as it slaotb
and, even afler a convicliun by verdict, lie m
traverse the lime.

In ihe proceedings of the Eccles
Court the same rule holds. In Dyer I
an iustance of a second administration, frauda-
leatly obtained, to defeat an execuiion at (ai
against the finl ; and Ihe faci being admilM
by demurrer, Ihe court pronounced agaiasttt
fraudulent administration. In another inslauo
had been fraudalently ri
vnked ; and ihe fact belnfr denied, issue wi
joined ti|ion it ; and Ibe cidliision Wing fhuoj
by a jury, the cuurl gave judgment agaioat it.
In the more roodcru eases, llie queatia
ems lo have beeo, wheiher the parlies sb«a
be permitted lo prove collusion ; and not ana
iog to doubt but that stranijers might.

So thai collusion, being a mstler eslriiii
of the cause, may be imputed by a ttran|[efJ
and tried hy a jury, and determined bj thi
lurts nf temporal jurisdiclinn.
And if fraud will vitiate Ihe judicial acta d
Ihe temporal courts, Ihere seems as much re»
son lo prevent the miichielit arising Irum cd-
luslon in the ecclesiastical courts, which, froo)
of their proceedings, are at least u
much exposed, and which we find have been^
lUch exposed, lo be practised lipofl
purposes, as the courts in Weit«

We

■r-hM.

D the Hjiiritual Couii'
(ge in a suit of jaclilalioD o^
t conclusive evidence, lo u M

fur Bigamy.

[Here /..Ilowf.l .-. great ni.roar Wiini) the
b*r. and ihe Seijeaut al Arum uiiide ilit usual
pnclMnaiioD.]

U] lanh, the misfortunes of in dividual a, the

eemipiioa of [irivaie life, the cniiruEion uf do-

Mnlic relation*, the (Jisarder of civil luccession,

■■d the offence done lo religioii, are su^^esled,

Mt u iqt;r«d>ents in the pnrticalar otfcuce now

«der trial, but ■■ miseriei likely to arise I'rum

tte examiikof the crime in geoertl; and are

Ud before yotir lordsbipa only lo call your at-

leDlion (o the couneand order of the trial, that

nthinK may fall oiii, which may give coun-

lo Bucli a crime, and heighten sucb

lo Ibe public.

The present case, to stale it justly and fnirly,

uf much ofthjs agKraralion. The ad -

B|[c of the parlies, and their previous

iiaons of life, would reduce many of theae ge-

nrralaftiolesof mischief and criminality iQidlc

toptci of empty declamation. No part of Ihe

prcseol complaint turns upiiii any ruia brought

«l ibe blaiueleu character of iojured iiino-

helpless oHiipriDg', or tbe appre-
hrMMi of ■ dis]iuted succession tu the house
«f rterre|>uiai, as probable aggraiations of this

Bat your lordsbipf will be pleased wilhal lo
rwnesniier, that every plea, which, in a ca»e
diflerrotly circiiiDBlaiwed, might have laiil
cla>M> ■*> your pKy for an uofarlnnale ptmlon
in ^•ongM' ininida, u eolirely cat offbere. If
it be irur, Ibat the sacred rites of Rinlrimony

■lop Ihe ciiiinwl fur the crown from proiing
the mBtmi;rin an iudiciment lur polyiramy.

Bui necnodly, udrDittinbT soeb senl«uue lu be
oaoicloaivp upon sacb indirliiienl, the counsel
ftr the crown may be admiiled to avoid the
tSeci of such sentence, by proving ihe satite lo
faare b«eo obraineil hj fraud or culluaiuo-*
Die Slbbtli, 20 Apiilis, JT7G.

hy the Lords apiriUial and lemiioral
Im pari ia meat assembled, that the Lord Cbief
Janice of the court uf Gummim-Pleas be, and
be ta bertrby detireil to, lavour this Hou$e »ilh
aeapy of his ArKuiueiitii|H)u tbe Questions pro-
pmtA tuthe JuJgenby Ibis House yes Lerdny.

Tliiiae reasnns, says Mr. tCargrave, were
ihougtir lo be so im|iorlaul ilmt the Lards re-
setted tn have ■ copy of his argumeal.

* See Pealce's Law uf Eiiilence, c. 1, a. 9.
UEmKI). East's Pleas of ibe Crown c. 19.
m, i, mhI Hawkins's Heaa ultlie Crowo, bk. 1,

^SM

A.D. 1776. [5^0

have been vioUted, 1 am afraid it must also
ap|iear, ihal dry lucre was the whole induce-
ment, cold fraud Ihe only means lo |)erpetral«
thai crime. In Irulh, the evidence, if it turns
out correapondeot to Ibe eipeclalinns t fiavs
formed, will clearly aiid expressly represent it
as a mailer of perfect indiSereoce tolhunriBOoer
which husband she adhered to, so thai the profit
lo he drawn from this marriage, or from thai,
was lolembly eijual. The crime, staled under
these circumstances, and carrying this imprea-
sioD, is an offence lo tbe law; which, if ilba
less aggravated in some particulars, becomes
unly more odious in olbera.

But I decline making general observaiions
upon the evidence. I will stale itlo your lord'
ships (Ibr it lies in a very narrow compiss} in
ihe simplesl and shortest manner I cau invent.
The taols (as the slate of Ibe evidence prnmisea
me they will he laid before your lordships)
form a case, which il will be quite impas«ibl«
If) aggraiate, and exiremely diffieuli to ex-

Itly lords, coDsideriog Ihe length of lim*
which has inleKveiud, a rery few periiHls wilt
comprise the facts which I am able to lay be-
fore your lordships. First, Ibe marriage uf tha
prisoner with Mr. Hertey ; her cohabitatiua
with him at broken and distant iulervals ; th«
birth of a child In consequence of il ; the rup-
ture, and separaliuQ which aoun followed,
Secondly, the attempt which the prisouer, in
view lo Ibe late lord Briitol's IbeD slate uf
liealth, made to cBtablish the proofs uf her mar-
riaij:e with ihe present earl. Lastly, the plan,
(vhich makes the immediate subji-cl of Ihe pre-
sent iiidictroeut, for bringing about the cele- ,
braliun uf a second marriage with tbe late duka
of Kiugslon.

The prisoner came to London early in life,
some time, as 1 lake il, about the yfsr 1T40.
About 1743, she was inlroiluced into the family
of the late princess of Walifs. as her maid of
honour. In the summer of 1744, she con-
tracted an acquniotance with Mr. Hertey;
which heffiits ihe matter of Ihe present indicl-
iiient. Tins ac[|UBinlance was conlrscled hy '
the mere accident of an Interview at Winches-
Ler races. The familiarity immediately began ;
and very soon drew tu its conclusion.

Miss Chudleigb was about eigbleeu years of
age ; and resideid al the house ufa Mr. Merrill,
her cousin, no a ti-it with • Mrs. Hnnmer,
her aunt, who was also the sister of Mr. Mer-
rill's tnotber. Une Mr. Muuutenay, an inli-
mnle friend of Mr. Merrill's, was ihere al the
time lime.

Mr. f lervey was a boy about seventeen years
old, of small lorlune, but Ihe youngest sun of a
iiubic family. He was lieutenant of ilie Cora-
wall, whicn mode part of air John Duvers'a
Eijiiadron, tbeii lying al Porlsmoulh, and des-
tined for the Wesl-lndies. In short, he ap-
IHfared lo Mrs. Ilaumer anadvaDtageous match
for her niece.

From Wincbesler races he was invited to
Lainsion ; and carried the ladies lo nee hu ship

847]

16 Gt.Ofti(SR III.

Trial ^tie Dueheu ofKiiigdoH,

[MS

•I Poiimionih. The Au^ort foHawio;, he
mide « •ecood *iiil at Laioaton fiir two ortbrM
days; dnririK which the m«tria|(e nai eaa-
IraMnI, celetH-ateri, and com um mated.

Some circumaiancM, which 1 hkTe almdy
alluded to, aud uiliera, which ii ia irnmalerial to
■tale iiarliculaily, remleriNj it impouible, oc
jinpruriitent in a drgrtt next In impoaiible, that
aucha marriatreBliould be^celcbralvdMlrmnly,
•r [(ul>!ici; girrii out to the world. The lor*
tune ot' boih waa inmSicieDt lo msintaia ihem
in tliat liluatioD to wbicb hii birth and her am-
biiiun had pretenaioDa. The income of her
plkce WMild hare failed. And lb« diipleaiure
of Ibe Doble rimlly to which be belonged, rcn-
4and it inpowihle on bis part to tvow ibe ccn-
DMtiiW. The cODMquenca mt, ifaat tbey

ftct, i

. wu neceuary for Ibtt purpose
t wilb Iht almoct priraey ; and ae-
urdiDgly 00 otber witacMe* were praaent, but
web aa had been appriaed of tbe conncclioD,

— J IbouKhl neceaaary to eatabliah the

seil abould erer be diaputed.

a ia a aniall pariah, the *aloe of Iha

I Uie only I .

obnrcfa at tbe cad af hia garden. On tbe 4th
af AngiM 17M, Hr, Amta, tbe then reoior, wai
a^Bied hi be al tbe charch, alone, lata at
Bifht At elcfen o'clock, Mr. Herrey and
Hua Chndlelgb went out, aa if lo walk in tbe
garden : fallowed by Mn. Baumer, her aer-
vant (wheae maidan name 1 fbi^t ; abe ia now
called Ann Cradock, ha*iiig married Hr. Her-
vay'a aerrant of that name) Hr. Menill, and
Mr. Monntenty ; wbieh last eanied a tapar lo
laad the aer*iee by. Tliey fonnd Mr. Atnia in
ibecbnrch, accordingly hia appoiatmenl; and
there the aerrlca wu celabraied, Mr. UoQDie-
aay holding tbe taper in hia hat.* llie eere-

* By tbe Marriage Act (atat 36 Geo. 9, c.
53, s. 8,) " if any ncraan ahall aalemoixe ma*
Irinoiiy in any olner place tbiD a cburch, or
public chapel, where hanna bate been uaoally
pnbliahed, unless by special licence from the
archbishop of CaDtctbury, or shall solemnize
raatrimoiiy trithout publication of baons, unleas
licence ornarriBgebe first obtained from some
peraon bsTinc authority lo grmot tbe same ;
areryperaoD Enowincly and wilfully sn ol&Dd-
ing, and beinfT TawfuTly convicted thereof, ahall
be guilty of felony, and transported to some of
Ilia majesty's plantaljona in America for fonr-
teen years, according to the lawa in force for
transportation of felona, and all such marriages
ahall be null and void." And by a. 11, of the
BHme alatnle, " marriaRea by Ucence, where
either of the parties, not being a widow, or
svidower, ahall be under twenty-one year* of
ag«, had without the previous consent of the
father, or lawful guardians, or one of them, or
If no gvardian, then of the mother, if liiing
and unraarHed, or if none such, thnse of a
mirdiui appbinied by Ibe court of Chancery,
indlbeaiaUandnid."

many being pptformed, Mr*. Hanmer^ maid
waa diapalclieri lo see thai tbe ooaat waa dear ;
aud they rtrtiirned into the hoiiae, wilboul being
by any of the ser*anla. I mentioa

Hr. Justice Blackstnne (Comm. book 1, c,
Ifi, a, 3, *i)l. 1, pp. 4SS, 440,} abaerres, that
" the iiitrrreiitioti of a ptieal to aolemDime ihia
cunlrai:! ia merely ' juris posilivi,' and not
'jitrisnaiurslisaut dirini;' it being said (Heaa
iro,) thai I'npe Innocrnt the M" [he wh
Pone from 119lllo 1116] '> waa the first wba
ordained the eelebralHHi nf naafriagc in a
church : before whicfa h waa totally a dril
contract. And in the timea of tbe grand rsbek
lion, sil marriages ware nerlbrmed by tba jaa-
tices of the peaoe ; ana theae mamagsa wcra
declared ralid without any fresh siilsiiiaiialiw
by Stat. 18 Car. S, c. SS.''^

The paange in Hoor to which the laatned
judge refers h aa fullowa :

" Goldingbam Doctor del dvil ley dlt qne Is
•olemoiaation de marriam ne fut use en I'Eg'
Use devant que le Pope lonoceDl 9 ceo antsin*
primes; mea dcvanl cral ordioanoe le msrriap
fuit solemnize en liel forme, que le home tical
at meaaon Ion la feme inhabite, et ameaDinil
la feme ore luy a sa messou, et ceo t'uit lout Is
ceremony ; et dc ceo fuit que le boine est dil
ducert taorem, per reason que il dace la frot
ove Iny a aa meaaoo, el k I'ltme fuil dit mtftt
vin> per reason que el est ouaai tooperia aaif
(ceat') eiro, a que el Mt Iny on sulgect ftl
agreament de marriage."

As to ihfe proceedings for regulating lba<a>
lebration of msniages " in the timet af Ibt
grand rebellion;" on Januarys, 1644-9, As
parliament pa*>e<l an erdiuauce bearing Ibii
title, " The Book of Common Prayer ahall set
be henceforth nsed } hut tbe Directory for Pu^
lique Worship" (in llie table it ia imillrd,*
" For lakiog awuy the Book of ComMa
Prayer, and tor establishing and putting in as-
eeuiion of the Directory fi>r tlie PidiliqnaWH*
skip of God.")

Jn the DIrectM-y therein set forth is tbaft^
lowipg protision respecting marriages :
" Tbe Solemnization of Marriage.

" Although Marriage he no Sacrament, wot
peculiar to Sie Church of God, hut comniM 0
roankinde, and of publiqiia inlernt in tnrf
Cora nton wealth, yet because such a* nMrry aia
to marry in the Lord, and liare special need if
Instruction, Direction, and Exhortation Irsa
the Word of God, at their enlring into aaah a
new condition; and of the blA*iD|r of Oti
upon them thernn, we juil^e it cx|>edient, Ihtf
Man-is^ he aoleniniznl by ■ lawfull MinistFr
of the Word, that he may acmidintity consail
tliem, and pray fur a blessing u|M>n tbcm.

• or the titles inseried in SrnbeH'a table sf
the ■ Acts of Ordioanc«' but sery lew are th"
aaroe with those respectively, which ate pn*
fixed to tbe AcU and Ordinancct theau«lT«i>

for Bigamy.

rdrramstBDCra, txicsiid; lliey hap-
pen 10 be ivcnllnilei) li^ tlie ivilnem.
Tti* marriigc was coniiiinmaleil tEie same
111 li« lay wltit her Iwoor ihrec nights
; tficr wlik'li he was ubiigeil la re-

A. D. 1778.

[550

liTritge is to lie belwi^tl one mui and
DDiaD only, and llicy,* such aa are oot
In the Urgrrca of (^ouwiifcuiDit; or Affinity
iliilril hy iheWurilorGoil. And the par -
ti(«ar* to be of years of discre^n, fillo make
ibcir own choice, or upon good grDundt lo giie
Ihcjr muuial conaeiil.
|[B^<*<e 'he aulciDDiziag of Marriage he-
I any P«raoit«, ilieir purpose of Marriace
'*i« published hy Ihe Minisler Ihree several
'"■ ' ~~ ID theCoui{regaliuii,altheplace
\ir inosi iHuat and conslautabode
,Ri>ely. And of liiii Publicalion, the Mi-
||«rho is to JDvn ibem in Marriage, shall
■uffioienlTeaiimonyibefore he proceed to
■isc the &larri(ige.

bfere IhM Publication of such their pur-
!f the partiea he under age] the cooseal of
~ snla, or uthera.uuder whose power they
• Ibe Pareots lie deail) ia to lie mack
K lo the Church -officers of that Cuogre-
I, to he iUcurdeiT.

^ * J3 he ob*er»«l id the proceed-
if all oihrrs, although of age, whose Pa-
■we living, lorlheir first marriage. And
r ciuirriagea of either of thoae parlies,
wit be eibocied not lo rontract marriage,
H 8nt scqnMiiting their parents with it,
ih eoiivenieney it may be dune) endea-
K lo obtuintbeir coosent.

enUuu^fht DOl to force their children
■ry witlmut their free consent, nor deny
~ n conieot without juat cauic.

if the purpose or contract of marriage
V Una puUiabed, ibe marriage ii not
i loDg deterred. Tliereloru the Minuter,
' A coDTeDient wniiiiDg. and nothing
Kted to hinder it, is publikely to sa-
ls Lhe place appointeil by Authority
le Worship, betore a cooipelent ouai-
'dihle witoeasew, al some convenieot
t tbaday, al aoy time of the year, t%-
M k day of puldiifue llumiliniiuo. And
lirla* Ibat it be not on the Lord's day.

ueall (clatiDM are aaDCtlHcd by

1 Prayer, the SliQisler is lo pray

IC apoo thetn to lb« effect ;

dhOuwIedijing our sioa, whereby we

' t mirtf Ives leas than tlie leaat of all

M of (lud, and pruvoh'd him to im-

Vall •yrMmforla earnestly in the nam*

^rislt*wlreBt ibe Lord (whose presence

b>*ttriilhe bappintw of every condition,

■BwectrM tvery relslion) to M their por<

w, uJ l» own ami areepi Iheiu in Cbrial,

^" ai> iNw Lu be joyned in the HonouraUe

uiruf llamaite. Ihe Covenant of their God.

I.1 Ikaa a* be tiaih btought them together

] lua Piotidencr, be wuuhl uoctifia them

* &i iu t>c<>bell.

turn lo his ship, which bad received sailing

Aliss Cbudleicb went back, aa had been
agreed, to her station of maid of honour in Iha
family of the princess dowager. Mr. Hervej

' by hia Spirit, giving them a new frame of
' heart lit for their oew estate ; enriching them
' with all Graces, whereby they may perfortn
' the duties, enjoy ibe iHimforls, uodei^a th«
'caret, and resist the ttraptations which ac-
' company that eoDditioD, as becometh Chrii'

" The prayer being ended, it i« coavcnienl
that Ihe Uinialer do briefly decide unto them
out of Ihe Scripture,

■* ■ The Inslitutioii, Use, and euds of Mar-
' riage, with the Conjugal duties wliich in all
' faithful neia they aretonerforin each lootbcff
' exhoMing them lo aludy the holy Word of

■ God that they may learn to live by Faiih, and

■ to be content in the midst of all Marriage
' carea and Irouhles. lanclifying God's Dame in

■ a thaakfull, sober, and holy use of all Coo*
' jugal comforts, praying much with and for
' one anothtr, watching over and provoking
' each other lo love and gooil works, and to
' live ingether as the heirs ot the Grace of hft.'

" After solemn charging of the persons lo
be married, before the great God, who search*
elh all hearts, and la whom they must give a
strict account at the lost day, that If eiilicr of
ihem know aDy cause, by prscontract or other'
wise, why they may not lawfully proceed to
marriage, thai they now discover it : the mi-
niater (if no impedimeol he acknowledged)
shall cause, first, the man to take the woman
by the right hand, saying these words ;

" ' 1 N. do take thee N. to be my married

■ wife, and do, in the presence of God, and
' betore this congregation, promise and cove*
' nani to be a loving and faitbfull husband unU
' Ibee, until! God shall separate us by ileaih.'

"Then the woman shall take the man by
bis right hand, and say these wards ;

"■IN. do take lh«e N. to be my married
' huaband, and I do, ia the presence of God,

■ and belore this congregation, prumiiie aitd
'covenant lo he ■ loving, faiihtull. and ob«<
' dient wife unto thee, until! God shall aepanlc

■ us hy death.'

•■ Then without any fariber Ceremony, tba
Minister shall in Ihe face of Ibe C'lagregatioa,
pronounce Ibem to be Husband and Wife, ac-
oording to God's Ordiuaoce ; and so conduda
the aciiuD with Prayer to this effect ;

" ■ That the Lord would be pleaaed io »«•
' company hia own Ordinance with hia Ucaa-

• ing, bearediiug him to enrich the persona
< now marrird, as with nllier pled|{*a of Itia

* love, an particularly with the Miuifuriii and
' fruits of marriage. Ki the prs'sa of his abnn-
' dant inFrey, in and ibniuich Chriit Jmiis.'

'■ A KrgMler ia to be carefully kept, <■ lierrtB
the Titmes uf ibe partin lO luariied. with tba
time of their marriage, are iVirlhwith In ha lairl/
Uecorded io a iioufc prepared liw ibu pui-

851]

16 GEORGE IIL

Trial of the Ducheis of Kingston f

[55f

mileil in November foliowiiiflr ibr the West
liplies ; and remained there till Auf^ust 1746,
^irlien be set sail for Ent^aiitl. la tbe month
of Octiiher tollouinvr be landed at l>)rer. and

poste, for tbe perusal of all wbom it may con •
cern;**

AfUrwarda, by tbe Act of 1653 (passed Au-
irusi 8 1.) cap. 6, * How Marriages shall be
Solemnized and Registered ; As also a Regis-
ter for Births and Burials/ (but tabulated under
the title of * Touching Rlarriages, and tbe re-
gistering therfof; and also touching Births
mnd Burials,') it was enacted, that *< wbosoe? er
•ball agree to be married within the Common*
wealth of England, after the 99th day of Sep-
tember, in the year 1653, bhaU (one and twenty
davs at least, before such intended Marriage)
defiver in writing, or cause to be so deh?md
uuto the Register (hen«fter appointed b]^ this
Aci) for the respective Parish where each party
to be married 4iveth, the aames, surnames, aa-
ditions, and places of aboail of the parties so to
be married, «nd of their Pircota, Guardians,
or Overseers; All which the said Register
shall publish or cause to he published, three
several Lords days thep next following, at the
close 'of tbe morning Exercise, in the pub-
liaue meeting place, commonly called tbe
Church or Obappel ; or (if tbe parties so to be
married shall desire it) in the Market-place
next to the said Church or Chappel, on three
Market-days, in three several weeks next fol-
lowing, betwen the hours of eleven and two ;
which being so performed, the Register shall
(upon request of the parties concerned) make a
true Certificate of the due performance thereof,
without which Certificate, the persons herein
ifcer authorized shall not proceed in such mar-
riage : And if any Exception shall be made
sgainst the said intended marriafire, the Regis-
ter shall also insert the same, with the name of
the person making such exception, and their
place of aboad, in the aaid Certiticute of Pub-
fication.''

And that " all sucb Persons so intending to
he married, shall come before some Justice of
peace witliin and of the same County, City or
Town Corporate where publication shall be made
as aforesaid ; and shall bring a Certificate of
the said publication, and shall make sufficient
proof of the consent of their Parents or Guar-
dians, if either of the said parties shall be under
the age of one and twenty years: And tbe said
Justice shall examine by witnesses upon Oath,
or otherways (as he shall see,- cause^ concern-
ing the trutn of the Certificate, and due per-
formance of all the premiKGS ; and aUo of any
exception made or arising : And (if there ap-

5 ear no reasonable cause to the contrary) the
larriage shall proceed in this manner :
** The Man to be married, taking the Wo-
■osn to be married by the hand, shall plainly
and distinctly prooounce these. W(»rds :

** * 1 A. B. do here in the presence of God
^ tho searcher of all beajrtSi tako Ibce CD. fiw

resorted to his wife, who then lived* by the
name of Miss Chudleigh, in Conduit -street.
She received him as her husband, and enter-
tained him Mccordioi^ly, as far as consisted with

* my wedded Wife ; and do also in the presence
' of'^God, and before these witnesses, promise
' to be unto thee a loving and faithful Husband/

« And then the Woman, taking the Man by
the hand, shall plainly and distinctly pro-
nounce these words :

** ' 1 C. D. do here in the presence of God

* the searcher of all hearts, take thee A. B. for
' my wedded Husband, and do also in the pre*

* sence of God, and before these witnesses.

* promise to be unto thee a loving faithful and

* obedient Wife.'

•« And it is further Enacted, That the Man
and Woman bavintr made sufficient proof of
the consent of their Parents or Guardians as
aforesaid, and expressed their consent unto
marriage, in the manner and by the words
aforesaid, before sucb Justice of Peace in the
presence of two or more credible witnesses;
the said Justice of Peace may and shall declare
the said Man and Woman to be from thence-
fortli Husband and Wife; and from and altar
such consent 60 expressed, and such declaratioa
made, the same (as to the form of marriagt)
shall be good and effectual in Law. And so
other marriage whatsoever within the CsB*
mon wealth of England, after the 29th of Sep-
tember, in tbe year one thousand six hundm
fifty three, shall be held or accompted a Mar-
riage acconling to the Laws of England; But
the Justice of Peace (before uhom a Marriage
is solemnized) in case of domb persons, ittsf
dispense with pronoucincr tbe woids aforesaias
and with joyning hands in case of persons ttal
have not hands.*'

Then follow directions respecting the regif*
tration of marriages, &c.

The act of 1656, cap. 10, continues and eoiH
firms, for six months af)er the end of the fiifk
session of that present parliament, the aboff-
mentioned act of 1653, excepting the claoaa >
tliat ** no other marriage whatsoever withis
the commonwealth of England after Septan*
her S9tli 1653, shall be held or accounted a
marriage acconling to the laws of EngkBd,"
which clause is thereby declared null and voii* '

By Stat. 12 Car. S. c. 33, (confirmed by IS 4
Car. 2. c. 11,) after recital that, by virtue Of f
colour of certain ordmances, or pretended aeH }
or ordinances, divers marriages since the be- ]
ginning of the late troubles nad been hadaad '<
solemnized in some other manner than bad
been formerly used, it was enacted that at
marriagrH had or solemnized in any of his tfi*
jest v's dominions since May 1st, 1642, befbt*
any juiitice of peace or reputed justice of pcse^
and ull marriages within, &c. since the aafli
day had, &o. according to the direction of tKf
act or ordinance of one or both HoosN of ffv
liament. or of any oonecnthMi at WatfMi^
under Ihc slila or title of a poriismMtr ">»'
be«anlli-ifihMr.M

I

^■^^

>»■ Bigamy.
r flaa of kfefiinif Ihe mirrjaze secret. In
t* laticr rail nf NuremWr in >he same year,
" '. Hmcy «ileJ for ihe MeililerrsnRsn, Bntl
tamed in ihe muntli of January 1T4T. aoJ
•toyed here lill May in ihe same year. Mean
■Huleshecanlinuedla ie«i<lem Conduit-street,
and he U tisitberat usual, lill aume difTprenceB
arme bFtween iliem, which termin^tal in a
•lownH^lil quarrel; after whioli th^y nerer
■aw pach other mnre. He cnntinued abroad
IrtI OeMmber 1747, when he retarued ; bal Do
■nlnx-ourae, which can be traced, passed be-
■ wepu them aflerwarils.

Tliia pmeral account is all I am able to gite

Sinr lonIihi|)s of the inlcrcnnrse Wtween Mr,
errey and his wife. The cause of ihe dis-
pIcasuTff which separaieil ihem, is immalprial
to be enlnrgwi upon. The fruil of their iuter-
couTSK was a son, bnrn at Chelsea, some time

cot^lni; Ifl the rites and ceremonies of ibe
ctiurch uf England.

" tjt marisge dans I'ordre civil est une
uaion Ici^liiue de Tbomme el de la ti'mme,
pcMi MToir itei enliins, iwur les ^leier, et pour
lettr assorer les droits des propri^tfs, sous I'au-
tvni€ At la lot. Afio de conslater cetle union,
«lle est accornpagn^e d'une c^r^moiiie reli-

«tfUe imblic ; vraie logamacbie, qui necbanffe
tMI 4 la chose. II faut done dihUnguer deux
<hosw dans te manage, le coalrat civil on
ent naiurel, et le sacremeat ou la
sacr^. Le mariai^e pnurrail done
a«ec tons les eReis nalurels et civils,
de la c^-r(:munie relinieuse.
letne de I'Gg^ise nesout de-
«*■««> n^cessairrs dans I'ordre ciiil que par ce
qoe le ni»i;isir»t less adoptees. II s'est mfme
^eooK- uR luni; temps, sans que les ministre*
4l* la religion aient an aucune part (I la cali-
bration des marit^es. Du lemps de Justiaien
le coaseDtement de* parlies en pn^sence de
l^iDMns, Hns aucune c6rfmonie de I'Eclise,
U((itiioo(l eoFure le mariaKe parmi les ehr^-
liiiH C't^lcet empereur(|ui fii, vera le mi-
HM 4d siiifane si^cle, lea premitres Inis pnur
^m tc* prfitrcs inlertinssent comine simples
tdnaiHt *ans ordonner encore de b^nddirlion
Mipliale. L'fmpereur Ltoo, qui mourni" [qu.
'Omia] " Bur le Irdne en ess, semble eire le
ytHDier, qui ait mis la c^r^monie religieune au

2f dasfoudilious n^ceraaires. La loi m^me
I fit uieaie que c'iiait ua noutel eublisse-

*■*!>« I'tdtie juste que nous nous forraons
■fail dn mariaife, i1 r£so1ie d'abnrd que le
%m ardre et la pi#l^ mime rendent aujonr-
ri'kst ntresiaireii les forriialii^s reliKieuies,
arfoptfM dans tonien les cnmmuuions ehr£-
Uenarm. IHaia llw^encr du mariaxe ne pent
en tin dCoaturie ; el cet riiKiiirdneiil, qui est
k tini>ei|Ml dans la society, e«i el iloil demeiirer

(Vitf daiUBKiMrai." Viiliaire Uiut PfaihiMph.
jn. Droit CuKwi^itf, itcl. 6.

A. D. I77fl.

[5M

in the year 1T4T. The circnmttance* of ibat
birih, ihe nnliee which |ieuple tank of ir, aad
the ciinrersBtiuns whieh she held ahout that,
and Ibe deaib of the child, fur. '»A\ part of th«
evidence that a matrimonial conuection actual-
ly suiwisted helvteen Iheni.

At'ier having menliuned so oHen Ihe txertcf
iviih nhich Ihe marrisgvand cnhabilaliun wera
conilocied, it leems needless In observe to your
lordshipi, Ihat the liirili of a child was sup-
pressed with equal care. That also made but
an awkward part of the family and edablisb*
nient of a maid of honor.

My lords, thai which I call the second pe-
riod, was in the year 1759. She hud Iheu
lived at a distance from her husband near
twelve years. But Ihe inlirm suie of the late
lord Brislol's heallh seemed to open Ihe pros-
pect of a rich surcession, and an earldom. It
was thought worth while, as nolhint; better bad
then ufTcred, lu be countess of Biisiol ; and
tor that purpose to adjust the prooti, of ber

Mr. Amis, the minister who had married
them, was at Winchester, in a declinintf s'nie
of health. She appointed her cousin, Mr.
Merrill, to meet her tbere on the 13th of Fe-
bruary 17S9; and by six In the raaminjf she
arrived at the Blue Boar inn, uj)posile Mr.
Amis's bouse. Slie sent lijr liis wile, and co n-
municated her business, which was to get m
cenilioale fi'om Mr. Amis of Ijer marriage with
Mr. Hcrvey. Mrs. Amis inviied lier (o Ibetr
house, and acquainted ber husband wiili the
occasion of her coming. He was ill «-bed;
and desireil her to come up. But outhing wa(
done in the business of the ceKiScate, till th*
arrival nf Mr. Merrill, who broutrbl a aheel of
■lamped paj>er to write it upon. They were
still at a loss sbont the form, and sent for one
Spearing, an altoruey, iJjiearinK thuu){bi that
■ lie merely malliog a certificate, and deiiiering
it nut in the manner whiuh bad been projiosed,
was not the best way of eatahlisbMiK the evi-
dence which might be wanled. He therefore
propiiseil, that a cbeck-boolt (as he called it)
should be bouG^ht ; and the marriage be regi*-
lereil in the usual form, and in the presence of
the prisoner. Somehndy suggesting that it
had been thought improper* she should be
present at Ihe making nt the register, he de-
sired she niighl be called ; the purpose being
perfecily fair, raerdy to slate that in the form
of a retfisler. which many people knew to be
true ; and which Ihoae pemnos of Koaour, then
present, give no room to iloubt. Accordingly
his advice was laken, the book was bnlighl,
and ihe marriage was registered. The bonk
WHS entitled, Matrisgeit. Uirlhs, and Burial*
in Ihe parish of Lainslon, The first entry
ran. The 9jd of Augusi, 1743, buried Mra.
Susannah Merrill, relict of John Merrill, esq.
The next was, The 4th of August 1744, mar-
rieil the honourable Augustus Hervey, esq. lo
Miss Elizabeth Chudleigh. daughter of colonel

* t»o in former edition.

555]

16 GEORGE III.

Trial of the Diicheis qf Kijigslon,

I
I

I

Thomai Cliudld^h, lile of CbeUea Callege,
deceaseil, in iJie parish church of LuImIod, \ty
meTbomisAiniB. The pciioner was in creal
■pirilj. She tbttikeil Mr. Amis, uti lolJ aim,
it ml^hl be a himdreil Ihoussiid pouiids in her
way. Slie tolil Mrs. Amis nil ber aecrer* ; of
the child she liati by Air. Ilervey ; a fine boy,
but il HBi danJ ; and how «be borrowi^d lOdl.
ofhenunlllannirr la make b>by clnlhes. Jt
Mcvfd ihe parfKMe ol'lbe hour to iliicliwe ihese
Uiingi. She lealed up Ihe regiiler, and lert il
wiib Mn. Antiit, io charge, upon her hiubanil's
dealh, 10 •Iclicer il to Mr. niethll. Thin hap-
pened in a fen neeka afler.

Hr. Kluchin, the preseat rector, succeeded
to ihe ti'ing of Lainslon ; but the book re-
maiued in the ponraaion of Air. Merrill.

Io Ihe year 1764 Mrs, Haomer died, ami
Was buried al L.ainatOD. A feiv days after, Mr,
Merrill desired ber burial might be registered. ;
Mr. Kinchin did not know of any re^ialer
Mbicb belonged to Ibe pariah ; but Mr. Merrill
liroduced llie book which Mr. Amis had made
and laking it nut of the sealed cover, in which
il had remained till that lime, shewed Kiuchin
ibe entry of the marriige, and bade bim noi
menlinn it. Kinchin suhjnined Ihe third entry,
iluried, December the IDih, 1TC4, Mrs. Ann
liaamer, relict of the late colonel Wilhai
Hanmer: and delivered the book again to Ml
Merrill.

In Ihe year 176T Mr. Merrill died. Mi
fialhurat, nhn married bis dnnghter, found
this book amoni; bis papers ; aQiT taking it to
be, what it purported, a |iarish resitler, deti*er.
ed il to Mr, Kinchin Kccotdingly, He bai
kept il as such erer since ; and upon that oc-
casion marie ihc fourlh entry. Buried, the 7lh
of February, 1707, John Merrill, rsi|.

The earl of Bristol recovered his health ;
Sii<l lliii regisler was furgntlen, till a very dif-
ferent ocoasian arose lor enquiry after it.

The Ibird peri nd to whlca I befrged iheat-
leniinn of your lordships in the ouiset, was in
theyenr 1768. Nine years bad passed, since
Iter former hopes of a great lille and forlune
bad fiilleii 10 (he ground. 8he bad at leogib
formed a plan tn attain the aame oiijecl anolhei-
way. Mr. Ilervey also had turned hia Ihougbts
to a more sgreesble connection ; and actually
enlereil into n <H>nespnndcoco wiih the prisoner,
for the purjHiie of selling aside a marriage so
burdensome anil hnlpfiil to both. The scheme
he proposed was rather indelicate ; not ihal
mf'erwards executed, which could net sustain
Ibe eye of Justine a moment ; but a simpler
neihod, founded in the truth of the caae ; thai
«f ohlaining a se|>Braiinn by sentence ' a inen-
' si el thorn propter adulleriura ;' which might
lerre as the Inuiidaiioii of an act of parliament
for ID shwluie iliviree. Ilesenl her a inea-
■age Io ihis rffi-t't, in terms aulGoienily pe-
remplury and iwuub, as yi'Ur hinlKhips will
kar from the wnnpis. Mrs Crad.ick, ihe
wnmitn I hare meniioueil bel<>r« as \<et\v^ Mrs
Hsninpr'sKervam, and present aiihf msrriaae,
mas tlien iD*rned to a MrvauLuf Mr. ileivey.

and lived in Ibe priaoner'a family wilb her btH
band. He bade ber tell her mistress, ■ that tl.
wanted a divorce ; that hesboutd call upon 1mI( J
(Cradock) to prove the marriage ; nod that tbv ■
prisoner must supply such other ciideoce af J
might be necessary,"

This toight have answered his purpose vdi I
enough; but her'a required mure reserve anil 4
msoagemeot; and such a proceeiling luigkt
have disappointed it. She llirrefore spurned at
that part of the proposal ; and refused in terms
of high resentment, ' to prove herself awfaor*.*
On the ISlh of August fnllnwing she enterad *
caveat at Doctors Commons, to binder aDy
process passing under seal of the court, at Im
mil of Mr. Hervey, against her, in any m^-
trininnial cause, without notice to her proctor.

What difficulties impeded the direct and <&•
vious plan, or what inducement prevailed is
favour of so different a measure, I caonut tlat*
to your lordships. But it hait been already
seen iu a ddute of many days, what kind N
plan they substituted in plitce of the former.

In the Michaelmas sesiiou of the year ]76B,
she instituted a suit of jaclilatioa of marriage
in the common form. Theanswer.wstKcross
hbel, claiming the ricrhis of marriage. But
IliB claim was so shaped, and the evidence w»
applied, that sucixss bEcame utterly imiiraetU

A grosser arliBce, I believe, was never fabri*
ealed. His libel staled the marriage, wilk
many of its particulars ; bat not too many. It
was large in alleging all the indifferent etr-
cumatances which attended the courtship, coo-
tract, marriage ceremony, consummation, aotl
Cdbabilalion ; but wbon it came to the facia
themselves, it stated a secret cuurlship, aod a
contract, with ihe privily of Mrs. Hanmer
alone, who was then dead. The marriage ce-
remony, which, in truth, was celebrated in tb*
church at Lainstoo, was said to have been per-
formed at Mr. Merrill's house, io Ihe parish of
S|iarshui, by Mr. Amis, in Ibe pretence of Mrs.
Hanoier and Mr. Mountensy, wbo were all
three dead. Mn. Cradiick, whom but three
months before be held out as a witness o< tba _
■ dropped ; and, to abut her
perfectly, the consummation is taid
have passed without the privily or knonh '
of anv jMiri of the fsniily and servanl* of
Merrill ; meaning |>erhaps that Cradock
servant tu Mrs. Hanmer. It was fanber
sinuBled, that llie marriase was kept a
except from ihe |ierauns before-mentioned.

To tliese articles the form of proceedi
obliged her to pul in a |ierxonal answer
□slh. She denies the pieviuus contract
•■des the proposal of niarrisge, by stalil
hat il was made to Mrs. Hanmer without '
pnvity; not denving that it was afir
iiunicalpd to ^ler. The rest of the
whtoh conUios a circumstantial allegaliiMl
the marriage, logeiher wiib the tiaie, pit
' sn liirth, she hiirirs in ibr I
sion of every answer, by deny-
iog the real i>l iIm said prMcitded puaittou ot

for Bigamy.

STtictewtetntein m^ pad ihrreur. Fiuilly,
»ba demon to (bp sriicle whicb altegei cod-

DM>*inc> the rest of the irllcle (o he true In
• mny |ian'aritreserTeithii inlvo. Thewliole
•termenl nl' msiTlage ff>s but > one part' ol*tlie
article ; (tin aTeriiieDt (the UnsuBge jg so
eoaiiruriMt) makes but one mi'mbsr nf b wd-
•enee ; and yet it combines lalse circumilinces
wUhlriie. 'Theywere.in Mr. Merrill's house
St >$pAnliDl, jnineil logelher In holy inatrimnny.'
Tbtspinot tliearticlp, nailer answer calls jl,
■• not (rue. It U true they were inorrled ; but
■ol iroe, lliat they were tnarrleil aX Sparsbot,
orUMr. ftlerrill'Hhojse,

How WM this gTOBs and palpable evaainn
lifliil 7 It is the course of llie Eccieeiasltcal
CoartU file exeeplions la JDdislincI or insufli-
ncDt antwen. Othemise, to be sure, they
e««U not eotnpel a defendant to pnl in any
laalerial answer. But it was not the purpose
•T itiia luii to exact a sufficient answer ; cunte-
^ocalty DO excepiioQS were tiled ; but the par-
Kwawcottu issue.

Tbe plan of ihe eridence also was framed
vpiui the same measured line. The articles
bad excluded every part of the family : even
the vuman whom Mr. Hervey had senl to de-
■lABil Ihe divorce, was oniilled. But her bus-
iMod >> produced, to swear, that in the year
ITM Mr. Hervey danced nitb Miss (^IbuHleitch
W0 Wiocbfster races, and visited her at Lain-
■lon; aod in 1746 be heard a rumour of tbeir
awritffe. Mary Eilwards and Ann Hillam,
MTTUil* in Mr. MerriU'a family, did not can-
imliil the article they were exaraineil to,
wUcb ailefea, that none of his servanls knew
wmj thing of Ihe matl^r. Bot they had heard
ifae report. So had Messrs. RofaioMn, Hoi-
^kcb, and Edwards. Kncli was the amouut of
Hr- Uerrey'a evidence ; in which tbe wit-
wmmet make a grreal shew of zeal ti> disclose all
they kmiw, wilh a proper degree of caution to
enjainthal they know nolhia^.

Tb« form of examining witnesses was also
dha^eJ on htr pari; anil she proved, most ir-
B^ttgaUy, that she passnl as a single wonian ;
wm\ by her maiden uame ; was maid of ho.
■Mir ta the princess dowager ; bought and
WiA; borrowed money of Mr. Drummond ;
■w) fcaptoath with him, and other bankers, by
daa name of Elizabeth Chudlei^b ; nay, thai
Mr. Merrill and Mrs. Hanmer, who bad agreed
ta keep the marriai^e secret, conversed and cor-
reuooded wilh her by that name.
' nr ibi* purpose a great variety of witnesses
«M rallril; whom it would have been very
nah la prvdoce, withoul some foregone agree-
Wtn, or perfect understanding, Ihat Ihey should
Mt ba eross- examined. Many of (hem could
Ml hi>« ke[it llicir secret under thai diacus-
naa; even in the imjierfect and wretched

U^ed upon paper, and in tliiise courts.
Tkiercfflic not a siut^le inlcrrogalory was tiled,
*K a single witness crust- eiamiued, though
fntduced lo article* excaediogly conliJeatial,

And if they

» be aigned.

A. D. 1776. [558

such as might naturally have exdied l)ie cu-
rioilly of an adverse party to have made fur-
In (he event of Ibis cause, thus lrea(pd, tbuR
pleaded, and Ihua proved, tbe parties had the
lingular fortune to catch a Judgment agunst
the marriage by mere surprise upon tbe justice
of Ibe court.

While I am ubiiged to cJiinplaiD of this gross
surprise, and tu slate Ibe very prni.-eeriings in
Ihe cuose as pregnant evidence of Ibrir own
collusion, 1 would not be understood to intend
any refleciion on the integrity or ability of tlie
learned aud respeiitabic judges.
For oft, Ibounh wisdom wake, suspicion sleeps
Al wisdom's gale, aud lo siinplicily
HeaigDB her chsrge ; while goodness thinks no

Where no ill seems. [ill,

Nnr should any impulallon of blame be ex-
tended to those names, which your lurdabips
lind subscribed lo ihe pleadings. The lorms
of pleading are matters of course. And if Ihe;
were laid before counsel, only b
without calling their attention tu the
tliem, tbe collusion would not appear. A cnun-
sel may easily be ted lo overlook what nobody
has any interest or wish that he should con-

Thus was the way paved to an adulterous
marriage ; thus was Ibe duke of Kingslnn
drawD in lo believe, that Mr. Hervey'a claim
to the prisoner was a false and iojuriuus pre-
lensioD ; and he gave hie unsusjiecling hand lo
a woman, who was then, and bad for %ii years,
been Ihe wife of another,

lo the vain and idle conversations which she
held, al least wilh those who knew her situa-
tion, she could not refrain from boasting bow
she bad surprised the duke into tb-> rrmmage.
<■ Do not you Ibink," says she with a smile to
Mrs, Amis, " do not you ihink, that it wai
very bind in his grace tu marry an old maid ?"
Mrs. Amis was widow of Ihe clergyman who
had married her lo Mr. Hervey, who had aa-
sisied her in pnvcuritig a register of thtl mar*
riage, and lo whom she bad told of Ihe birlh
of Ihe child. The duke's kindness, as she in-
sultingly called it, was acarcely more strange,
Ihan her manner of representing il to one who
knew her real silualion so well.

My lords, this is tbe stale of llie evidence;
wbicti musi be giveo, were il only to satisfy
Ihe form of tbe trial ; but is in lact produced,
lo prove that, which all tbe world knows j>er-
feclty well, as a matter of public notoriety.
The subject has been much talkeil of; but
never, I believe, wilh any manner of doubt,
in any company at all ciiuversanl wilh Ihe pas-
sages of tliDl lime in this town. Tbe niliiesses,
however, will lay these facts before your lord-
ships; after which. 1 suppose, there can be
no question whatjudgmenimusll)e pronounced
npoa Ihem : for your lordships will hardly view
Ibis act of parliament just in Ihe light in which
the prisoner's counsel hare Ihougni Gt to re-
preieat it, •■ a law made for beggars, not lor

659]

pf ople of f

16 GEORGE 111.

Trial oflht Diuhett of KingOon

[Jflor

To be tare, th« preiinble
?\\iteM\j |iroTe Ifac legiilature to Iib>«
forneen ur FX|ircleit, (b*l ihne would be [lie
crime! of higher lil», or uotilcr can Jilion- Bi
' the ad is frauted to punish Ibe crime, wlifrctrr
it mi^hl occur ; anJ Ibe impartial tein|>er ul
yoiir justice, ta.y tonli, will out turn asiile ili
course in respect to a noble criminal.

Nor does the ejili nf ao hrinous a fninil wem
to he exteniialeil, by rft'errln^ lo the advice ol
, Ihute by uthoEc aiJ it was cntiUiicM, or lo Hit
contidenl opinion they enleriuined ol' the suc-
oea* of their project. I kunw lliis prnject wat
ant (nur did I ever nieaa tu conteud it was) all
, berowft, rattle ularly, iu lUat fraudulent al-
teinpl Uiion public juilice, it could not be sa.
Sul, my lurdi, that imparlin); a criiiiiaal pur-
poae to ibe necessary instrumeitta lur carrying
It into FXccutioD, exlrnuiiles the eo'll ot the
nullior, ia a conceit perfectly new in ronralily,
■nJ more thin 1 c
pliea asgraralion,
corrupting; tbese ingtrumeots. Not thai I inean
liy this obserratiun to palliate the guilt nl «uch
corrupt tnitrumtnti. i think it may be Hi,
■nd excee<lingly wlioleaome, to convey to
Doctors Commons, that those among them, il'
any snch there are, who, beine auiuainteil with
tlie whole extent of the prisoner'a purpose, to
fumiab herselfwith the ^Ise appearance of a
■ingle woman in order to draw the duke into
•ucn a marriage, aaaisled her iu executing any
part uf it, are lar enongli from being clear of
the charge contained in this indictment. They
•re acctisaties to her felony ; and ought to an-
swer for it accordingly. This is slating her
case fairly. The crime was committed by her,
and her accomplices. All liid their slisic iu
the iierpetratioD of the crime : each is stained
with the whole of itie guilt.

My lords, I proceed to examine the ivif-
Deisei. The nature of the case ahuU out all
contradiction or impeachment of testimony.
It will be necessary lor your lurdslnps to pvo-
nouDce that opinion and judgment, wliicli so
plain a case will demand.

Sol. Gen. My lurd«, we will now proceed
to call our niUiess«g. — Call Ann Cradock.

CI. oflheCr. Hearken to your oath.—
' The evidence that you shall give on hehall'
' of our sovereign lord the king's mnjesty,
' against Elizabeth ducheas-du wager of King-
* Blon, the prisoner at tbe bur, shall be the
'truth, tbe whole truih, and nothing bill the
< truth, So help you God.' [Then sTie kissed
■' e book,]

inform your lordships whether she has not bmt
a security for aoine proviiioD, or benefit, ot ^
promise, in cunsei]ueoc« of the evidence shil
is to give on this iudictment F — Craihck. No. ■
Examined by Mr. SoUcilor General.

How long hare you been acquainted irU
ibe lady at the bar? — Above Sa years,

Where did you first become accjiiHiated «ril
herP— 1 saw the lady tirat in Li>ndun, afici
wards at Lainston.

What iiccBsioo carrii'd you to the lady i
Lainstoa f — Along with a lady that 1 served.

Name the lady.— Mrs. Haumer.

Was Mrs. Huuiuer any relation lo tlie }td
at the bar?— Her own aunt.

Was the lady at the bur at Lainstnn aloi^
with Mrs. Hanmerf — Not when I lirst went
down to Lainston.

Did she come down there aflenrards ?_
Ves.

Do you remembtr seeing Mr. Augutlua
Hervey there at ihat time.^ — I remember
seeing Mr. Augustus Hervey there, hut nut at
the time 1 first saw the lady there.

When did Mr. Uertey come Iheref— It naa
in June, at the Wiochesier races.

How long did he stay there at that tim«r —
1 cannot particularly say bow long he luight
slay: he was coming and going.

Were you in Lainslon church with Mr. Her-
Tey and that lady, at any time in liiat s'lm-

At what time of tbe day T—U was towatdl
night ; it was at night, not Id the day.

Upon what occasion ? — To see the marr

Name the persona who were presenL—
Merrill, Mrs. Hauiner, Mr. Muunteuay,
Uervey, MIes Chudleigh, and myself.

Who una the clergymai " "
belonged tnihe church.

Here they married ihi
them married.

Was Ibe manioge kept i

By what ceremony W!
By the matrimonial ceremony ; by the C<
mon Prayer Book.

Were you employed to take care, Ibtt tl
other servants should be out of lbs way f.

Did they return lo Mr. Merrill's bouse aA
the marti«ge ? — Yes, they did.

How far is the church from the bniuef.
Not a great distance, but I cannot say how.fs;
it is in the garden.

Did Mr. Amis return with tbe parly inta ll
house F — Not that I saw.

Did you attend on the laily as her maid T'
1 did at that time, her own nut U^ing able.

ADet the ceremony, did yuu see tbe
in bed together P — t did.

Aljird. Itepeat whatyousaid,— CroJocifc.
saw them put lo bed : 1 also sun Mrs. HaauM
insist upon their getting up a^ain.

Did you seeihero tbe next morning? — 1 m
then tust night afterwards in bed, the mm
night alter Mis, llaauer went to beil.

—Mr. Amis,
ef— Yesi I

s the marrianfe F-

561]

Jir Biganuf.

A.D. I7t6i

ijm

Did ydu Me them aflerwardt in bed for eom*
nights tt'ter that? — I saw tliem particularij in
bed the last Dight Mr. Herrey %vbs there, for
lie was to set out in the morniug at fire o*cloek;
I was to call him at that hour, which I did ;
and entering the cliamber, 1 found them both
fast asleep: thej were very sorry to take
leave.

Can you fix what year this was P — 1 believe
it to be in the year 1744, but 1 am certain it
wa^ the same year In which the Victory was
It Porttimouth.*

Do you recollect what time of the year it
irt»? — In the month of Auf^ust, I think. .

\lhatis your reason for thinking it was in
tbe month of August? — My reason is, that it
«u in the time of Maunhill fair ; and also that
tberewere green-gap^es ripe, wliidi the lady
and i^entleman were botii very fond of.

Do you recollect how lung it was after the
dntbof Mr. Merrill's mother? — No, 1 cannot
. JMtly say.

Where did Rlr. Herrey go, as you under-
itood, the morning he went away? — To Ports-
mouth.

Did you understand that he was then in the
leaser? ice ? — I did, and<that he was going with
1 adnira) Darers.

I Hire you any particular reason for knowing
1 tint be did go with admiral Davers ? — ^l^be
\ rvMoo I hare to believe he did go with him is,
ibe jwrson whom I married afterwards was Mr.
Hertey's servant.
Wis he servant to him at that time? — He

Did you receive a letter from the person you
afterwards married, who was Mr. Hervey's
Mmnt,and attended him ? — 1 did, from Port-
Mihoo.

Do yoa know what relation Mr. Merrill was
totbe lady at the Imrp — Firtt'cousin.

Who Mas Mr. Mouotenay, whom you men-
taocd as present at the murriage ? — A iViend of
^h. Merriirs, as he pretended.

Did he live i» the family at that time ? — He
*u in the family at that time, and had been
fritin the time of the death of Iuk mother.

Do you know whether any other {mrt of the
ranily, of both parties, were acquainltd with
^e marriage, except those |>ersons you have
neatiiined i*— No, 1 did not at that time.

Did tbe lady chan|i[e her name on the mar-
na^e? — Never in public, to my knowledge.

Had you occasion after this to see the lady
f inUndon? — I saw the ludy in London many
i liioes.

Do jon know whether there were any cbil-
^retof the marriage? — I believe one.

What reason have you for believing so ?^-
'Hte lady herself told me so, and her aunt also,
^hooi 1 ought to have mentioned first The*
■^ toM me, that she would take me to see the

Bid sbt offer to carry her aunt as well as
y*ato see the diild ?— I do not know that.

How king after tbe marriage was it, that she
^ yea sIm would Ipke you to see the child ?

VUL. XX.

—That I cannot say, biH it wu after Mr.
Hervey returned a second time.

Returned, from whence? — 1 beard be bad
been at Port-Mahon.

Do you recollect how k>ng Mr. Herrey had
been absent the first time ? — No, I do not.-

How long had he been alisent the second
time P — After his return the second time, I be-
lieve the child to have been begotten.

How long after Mr. Hervey's second. cetnra
was it, that she told you she would carry you
to see the child ? — It was after his first return.

A Lard. 1 believe there is some mistake.
Let the witness explain that.

SoL Gen, Was it after Mr. ROrvey*s first
or second return, that the lady told you she
would carry you to tee.the child ?—l believe
tbe first time.

Do you recollect bow long that wm after the
marriage?^! do not recolleci.

When did you marry Mr. Heney'sienrftBtP
—The 1 1th of February 1759.

Did the prisoner at the bar say any thing
particular to yon about the child ? — 8he told
me the child was a boy, and like Mr. Hervey.

How long did you continue in the service of
Mrs. Hanmer?— -Till she died.

When did Mrs. Hsnmer die ?«-She has been
dead eleven years tbe second of last December.

Had you any occasion to know what became
of the child, whether it lived or died P — I know
nothing further than what the lady said.
When 1 expected to go to see it, the lady cume
in great grief, and told me it waa dead.

Have you any reason to know at what place
the child was born? — At Chelsea, by> reaiou
her mother could not go there.

Who informed you that tbe child waa born
at Chelsea ? — Mrs. Hanmer told me this.

Have you ever heard it from the prisoner P-~
Yes, 1 certainly have.

8be said, her mother coidd not go there.
What do you understand to be the reason, why
Mrs. Chudleigh could not go to Chelsea?—
By reason her husband and aon were buried
there, aa 1 have been told.

Had you any conversatioii with tbe prisoner,
about the year 176B, about any mesMge to be
delivered to the prisoner, that Mr. Hervey had
givOn to you ? — I had a message from Mr.
Hervey, signifying to tlie lady be was deter-
mined to be parted ifom her.

Did you deliver that message? — Not for
some time after I received it, not being aUe.

When did yoti deliver it ?«-On iiaturdty
morning, wheu the lady came up to me, and
told me, that abe knew what had been the mat-
ter with me. I told her Mr. Herrey desired
me to let her know, that he was determined to'
bff, I shoo Id have aakl divorced, hot I aaid
parted ; and also, that be desired me to tell the
lady, she had it in ber own power to asfist him.
I delivered the meMSge, alid the laily replied,
was ahe to make herself a whore to oUtge tiim P

Did she appear to be with child belbre this
conversation with yon?— 8hc did appear to
to be.

90

i

SaSi I« OEOBGE Ur.

What pirilb u Hr. Merrilt'a liouse in t — I
*"'"-e JD St. George's: liis hsme at IdinstDo
irkhoriUeir.

Are tbcre *ny other hotwei In the parish bS'
Mm Mr. HerriH'af— Not U Lauulon, there
fattot.
_ Wm Acre wnice regaUrly tu Lainstoa
rdid ihe family go tn any other

SeiUiter Central. Uy lordi, ne have no
UWre quealiiKK to uk this iTitaen at present.

Lord Sigh Sltaard. The couuid for (he
prtaoner are at liberty to ask Ihe wiiaesa any
^ueatJDDB lh«y think proper.

Exusined by Hr. Wallace.

Have you not declared toaome perioni, that
you bad bd expectBtinn of Mma (irofUion or
mefit on the event of Ibia proiecutioDr— I
OCTcr could declare 1 had any lbiD)| priimiaed
me by any body.

Expectation of proiiaion from the peraoni
thai proteculeF — Ineierhail; I know none of
the family.

Where have you liwl for this monlii, nr
two, or three? — 1 hais lived at ftlr. B«su-
water'8.

What is the reason of your baving' your re-
MdcDce theref — In regaid to hlii l&dy beiagu
relation to Mr. and Mrs. lialhurel.

Had your reaidence tliert^ any relaiion to
tbi* prosecuuoaf — Itis unknown to me, if it

What hiTe you to do wilh Mr. Balburet?—
Mrs. Batburat \* ao kiuj an to have uie ibere,
an braair a aerrant to her aunt from my chilU-
bwod.

■ low long hare you been at Mr. Brati-
Wiler'a?— I am sure I cannot juajly say ibc
e tliere.
[ belbre tlii* prosecution was com-
mcnceil? — I can't letl whca Icanielhcte; I
un'l tell bun' long I havelieeu there.

I do not meaii that you should aitiwer to a
4t), hut according' lo the beat of your uiemiiry.
—About four EOODtba, I fancy.

Was il before or atnce you appeared before
Um graod jury ? — Since I appewed befote the
ftittd jury.

Do you know who i« tlie proseculur of ibis
iadictment.'i— Mr. Meadnna, ] iiuaKiue.

Doy«akiio«> Mr Meadows? — I liaveseen
hi* tHiM «r three (iuief ia luy life, aud that is

Tri<d of ike Duekm oj KingttoHt [564

offers made me frooi the pro-

1 hare jual now add,

day when I c

■ over? — 'tbt

Aie you to alay at Mr. Beauwaler'i
return, when Ibis ptiiseculiou in aver!
hat home 1 bad ia at Laiosloo, where I
■pay reiuru again. 1 weu dowu there
yUkI trBEalwelfemoiith.
. Have you never declared lo any bndy,
p>a had an etpMlalion of mote iiroviaiau trtm
the Willie Dotv id haqd?— I (Oi sot

it, as I bail a
secular.

Have you declared it?
t could out.

Would you be underaiood, that yoa hai*
notf— What was I to declare?

Whether you have not decbu'ed, whether
(rue or fiiisc I do not care, that you had so n-
pectalion of some provisiiin from this prosecv-
lion ? — I could nui declare it, before it iru
naade to nie.

You roust say whether you did aay ao ot
not. — I neier liad any offer from the proie-

Had not TOU an expectation from the pme-
culion? — NX 1 could uotsay ibaf, when they
□ever ofli^red ia me.

Do ^ou underalBod the question generally,
urcunfiiieJ to ibe proseculur? — Itbinkilcu
be coofuied lo annc but bimceif.

Have yuu any expeclutiuu from any body
elsei"— No, mine.

Nor ever declared so?— No. i nevet de-
clared Ibat 1 bod uny such eipeciationa.

At what lime o( the uight was ibii nir-
riage? — 1 cannot poisibly tell Ibc hnur; it WW

Have not you meulinned lo any hody smm
hour of the night ?— I ilu unt know thai 1 bate
menlioaed it, any farlbtr lliuu iliat it wat U
night.

Ydu have said, that you were employed W

uay a

Il alter
clear;

buiv came you (lien lu i;o lu lli
was employed tu conie out of tbe cli
ibe marriage, audseeihat ibe buuse
alter tlie marriage, and nut brl(>re.

Was there any care taken befure they wHl
lu cburcli ? — No, I iln nol kimw thai there wti.
Mr. and Mrs. Merrill dined out Ibat duy.aud ■
do not know that any of the liuuse knew ihit
lliere hbs to be a inarriDKc.

Are you sure (but Mr. and Mrs. UrrriU
dioed out thai day ? — Yes.

When did Mrs. Merrill die?— I do nolkDOW,
Mrs. Hanmer it tvus ; there h as du Mrs. M"-
rill at thai time.

Then by Mrs. .^Icrrill ynu moot Mrs. Hui-
mer, did you ?— Cei tuinly I did mean .M«-
Hanmer, tur there was nu Mra. Merrill.

Were you desired to tjo In the cburcb ?.— I
don't know wbeibfr 1 uiisi de»ii'ed to pi, but
lliere 1 was ; ibal 1 reciillect.

Did you go as a uitness, ur nut ofcurinailjr '
— [ was there to see ihe uiarriBiie. At tu wil-
neis, I was luit called tu he a wiluess.

Did any of (he parlies know you were in lb*
church? — Those that were iu the church

Did yon hear the ceremony perfomad t"^
id.

Did you hear (he whole ceremony ? — I t**
eveao: certainly. .. '

HMa awuf oM aaidt yoa did net bnr 4

■'- tii,«d«-

HMa awufoot aaid,
(bit I lhn*iii|iiir< JM. tbit

w

for JBigamtf.

?— Certainly I do, for 1 know whc
ftsked or not.

^-did Mr. Heirey stay there after
(re ? — ] really cannot say how many
vaa not long there.
I that Mrs. Hanmer made them ^ei
er they went to hed ; how lonflf did
mer sit up after that?— 1 cannot
how many hours ; I can't say
might have been one, or two, or

Mrs. Hanmer's custom to lock the
c Mils Chudleigh lay ?— 1 never
die did lock the door at all.
' body by her order? — Not to my
: I never knew the door ordered to
ly any body, nor by myself neither :
I never locite^l it.

sure the door was never locked then,

Ilervey went out, when he was

et up and leave the room as you

—Went out where ? I don't under-

re said, he was made to qret up again.
Iiest of my knowledge, the lady got
well as Mr. Hervey.
Ih left tlie room ?— 1 believe they
le room, I know nothing to the con-
; 1 know they afterwards went to bed

lu not declared, you knew nothing of

age?— No, never in my life, to my

*

»u did not remember any thing about

very odd that I can remember it now,

J not have remembered it before ; 1

I in my memory.

lot yon declared ihat you did not re-
p—No, not that I know of.
you will give a posiiive answer, yes

jlher you have or not have declared it?

could have declared that which I did

m did not remember any thing about

1 never could say that.

a or did you not say so ? — No, 1 did

the Earl of Buckinghamthire,

t pot one question to the witness. You
X you speak not only in the presence
ipectable court, but m the presence of
God .^— Yes.

rou, or have you not, ever declared
did expect an advantage from the pru-
say aye, or no. — i must say no : I
aay aye.

ive told us, that Mr. Merrill and Mrs.
went out to dinner the day on which
■g« was performed ; 1 shoald be fflad
at what time Mr. Merrill and Mrs.
Tdomcd home ?— 1 believe it might
n seven and eight o'clock, as I bad
I eat of the housekeeper's room to the
mwui lady by candle-light.
day of Ow noDth was itf^Tbat I

ib«i Ml

A. D. 1776t

[566

By the Duke of Grafian.

Did you ever see the child, that the ladv at
the bar offered to carry you to see f— No, I
never did.

What was the interval of time between the
otfer to carry you to see the child, and the
death of that child ?— That 1 cannot jastly say
neither ; but as far as I can remember, the
day that 1 was to go to see thcf child, the lady
came and said it was dead.

Though you cannot exactly recollect the in'*
tenral between tlie oue transaction and the
other, yet still vou may speak at large. Was
it a week ? Was it a month ? Was it half a
year ?— It was not a month, nor yet half a year.

Were there a few days interval between the
one and the other ?— There was, but 1 cannot
say how many days.

Did yon, in the spaoe of these few days,
ever express to the lady at the bar your ear-
nestness and desire to see the cbiW, which vo«l
say the lady at the bar told yon was so like Mr.
Hervey?- 1 expressed my desire at the time,
when the lady spoke of the child to her aunt.

What was the answer that you had for not
carr}'ing you immediately to the child f — ^The
lady told me, she would come on such a day
with the princess's coach, and that 1 should gd
and see the child. . . . >

Were you examined by the Ecclcsiaslical

Court? — I was not.

Did you know at the time, that there was
such a process going on there ? — I was told by
Mr. Ilervey there was.

Did you offer to Mr. Hervey, or to any other
of the parties, to give that evidence which you
now have proved it was nuiterial to givef--He
told me, he must call upon me to assist him m
his marriage.

Did any thing else pass relatiTC to the pro-
cess in Doctors Commons, alter Mr. Hervey a
conversation with you ? — Yes, there certaiolj
was, though I never, was called.

Did any thing pass between Mr. Hervey
and you, or between any of the parties and
you, after that declaration of Mr. Hervey's to
you?— I was to acquaint the lady wilh hia

intentions.

You said you were to remove the sermnU
out of the way at Mr. Merrill's house at the
time of the marriage: how many servaiUa
might there be about Mr. Merriirs liouse at the
time of the marriage ?— The butler ; a maid,
who waited on MissMerrill; two house-matds t
a laundry- maid: one of the house- naaida be-
longed to Mrs. Hanmer, who always went
down along with her, and there was a kitchen-

Were there any liffhto in the church at the
time of the cerenaony being performed ?--There
was a wax light in the crown of Mr. Moun-
tenay'shat.

Lord Tamruhoid. Whether ahe has ever re-
eeived or been offored any thing to with- bold
her evidence relauve to the supposed mar-
Tiage r— ^im CraiMt. I nei cr lia««.

If,

667]

IS 6E0E0E m.

Trial of ike Duchess of Kingston,

[SGf

n T -J zr-ff r l I appreliciided it mieht be sometbiiMT coBoeniiui

Bj Lord HifUbonmgh. | ^^ |^„^, ^^„^j ^^p^^ j^^ p^j^^ ^ ^^^ j^^

Did you ever receive any letter, ofleriog you , think 1 loUt him, that 1 had once been lok

any advantage in case yon would appear ag^ainst
the prisoner, before you v^ere aubpotoaed at
Hicks'a-ball ? — I received a letter from a friend,
wherein I was told, that a gentleman of tiieir
acquaintance would get rue a sinecure, but on
wbat account 1 knew not.

A gentleman of whoae acquaintance? — I do
not know who the gentleman was ; it never
was explained to me who the gentleman was ;
Dor I never asked.

Who was the friend who wrote that letter to
you? — Mr. Fozard of Piccadilly.

Wbat answer did you make to that letter ? —
1 made no answer any further, but that it was
Tery kind in any body that would assbt me in
getting me ^ny thing.

Who is Mr. Fozard ?^A person that lives
near Hyde- park-corner, and keeps livery-
stables.

You say be wrote you word, that some of
their friends would get you a sinecure ?— -1
aaid, a gentleman of their acquaintance.

Of whose acquaintance ? — Mr. Fozard*s.

Upon what account did you conceive or
understand that he.was to get you a sinecure?
—That I cannot tell.

What have you done with the letter ? — I do
not know where the letter is ; I know I have
it not.

Wiil you take upon you to say, that there
was not iu that letter an expression intimating,
that if you would appear against the prisoner
at the bar, a sinecure would be gotten for
you ?— I certaini V do say, there was no snch
expression in the letter ; only a friend of theirs,
or a gentleman of their acquaintance, I do not
know which, would get me a sine cure.

Did you, or did you not, hy virtue of your
oatb, understand tliat that was to be tlic con-
sequence of your appearing against the pri-
soner at the bar?— I did not know that that was
to be tlie consequence of my appearincif. I had
no room to imagine so, because I know not
the person of the prosecutor, nor none of his
family.

Did you advise with any boily concerning
wbat you should do with regard to that letter ?
—I certaini}' did apply to a friend, and ac-
quainted him I had received such a letter.

Wbat did you write to your friend ? — 1 never
writ to any friend ; 1 applied to a friend, and
shewed the letter.

Whether you did not a&k advice from some
body, what you should do with refrard to that
letter? — 1 did not ask any body what 1 vi'as to
do with it ; I received it.

What did you consult that friend about ? —
Tb let him know 1 bad received surh a letter ;
but 1 did not know what it mi^jit be upon, or
wbat it might not

Did he read the letter?— Yes.

Wbat floovarsation passed between you ami
him o» the inlgect of the letter ?— I toM bim, I
did not kiMir Whit k mifftiK bi ftovi bot thill

that I might have the same settled upon me a
the lady promised me when I went into tb
country.

What reason had you fur thinking so ? — ^Th
reason I had for thinking so, was, because
had been told once, that I might have the san
gfiveu me that the lady at the bar offered iw
when I tvas to go into the country, it' I woul
speak the truth ; but by whom I know not :
never asked the question.

I desire to know, what you did with that lei
ter, whether you put it into the hands of tfa
person whom you consulted?-*? put it into n
one's hands ; the person had the letter I coi
suited.

You put it into that person's hand to read il
— I gave the letter into that person's hand
read it, and told him, he might shew it to M
Hervey, if he would.

For what purpose did you desire it might I
shewn to Mr. Hrrvey ? — For this pur|»ose, l»
lieving it might be against hiiu and the ladv
but by whom 1 know not, for I never asked U
question, who it was that was to give it.

Did you desire your friend to »hew it to tli
prisoner at the bar ? — That was impossible, fc
the lady was not in England.

Did yon then desire him to shew it to an;
body oil her pan ? — 1 shouhl look i\\wn it, if i
was shewn to Mr. ilervey, it would be on he
part, as being man and wife.

\V hether you desireil it to be shewn to aaj
body else?-r-No, not besides Mr. Hervey.

[^Adjourned

Fourth Day.

Saturday y April 20.

Ann Cradoek's examination continued.

Lord Billtboroush, I was exceedingly- gb
the House was a«tjMiiriied, but I %«ould muc
rather it had been ailjounipd sooner, because
now lie under a t^ood deal nt'ditiirulty to resum
the thrcHd of those questions, that for my ow
information, and for that of the House,
thought hi^^hly proper and necessary to lie e]
Illicitly and exncd}' answered. My lords,
think the last question that I put to the witne
at the bar, was, v% hether siie had put thatlette
Mhich she said was signed by Fozard, into tl
hand of any other person ? If I do not mistak
my lords, she said, she bad put it into the has
of a friend of hers m read. U|ion asking he
whether she hail any other intention than lb:
of puttin;*^ the letter into his hand ? I think si
mid, she loUl the |>crson he might shew tl
letter to Mr. Hervey, as hhe appreheudeil it r
latiMl to him. Mow I desire to ask the evidcn
at the bar, whether she knows, that her friai
did shew that Utter to Mr. Hervey or aotf-
Ann Cradock, My friend did shew il lo%li
Hervey.

Did your friend tell you what Mr.

669]

far Bigamy*

I

'•!

i

•aid conceniinfr the letter? — My friend told |
mr, tbat he desired I should keep the letter.

Do yoa mean Mr. Hervey or the friend de-
sired yoa to keep the letter?—! mean, the
answer, that was iriven upon the letter beings
ibewp, was brought by my friend, and BIr.
Herrey desired ine to keep the letter.

Did your friend, who carried the letter from
yoa to Mr. Henrey, say any thinir more to vou,
iban tbat Mr. Hervey desired yon should keep
the letter ?— He told melhat Tshuuld acquaint
the lady tliat was abroad with it.

Did you acquaint tlie lady that was abroad
with il ? — I had it not in my power so to do.

Did you acquaint any body else with it? — I
did several of my acquaintance.

In particular, did yon acquaint any liody
that was concerned in business lor the lady ?
-No.

I desire to know, whether yon did by your-
wlf, or by any body else for you, make any
Uiwer whatever tu the letter to Mr. Fozard ?
^I went to Mr. Fozard when 1 received the
Wtler, aa in the letter it was required to know
BT af(e, and where I was born.

I desire you will inform their lordships of the
whole of what passed between Mr. Fozard and
YOU St that interview ? — Nothing in particular,
nurther than relating to where J was born, and
nv a((e ; my af^e J did not know. 1 did not
tik who was to (five me the sinecure.

Did you not think it extraordinary, that Mr.
Fozard should enquire of you your a^e, and
wbtreyou were born ? — I certainly did think it
citrBorilinary.

Whether yoa did not ask the meaning of it ?
—1 did not ask any meaning for it.

By Lord Derby.

You said yefsterdny, that you did expect to
recfive someihinif adequate to what you had
received from the prisoner at the bar : what
did yoa formerly reciMve from the prisoner at
the bar ? — Many favours in friendship, bat not
aay thin;^ in particuLir.

Wbat were you ottered by the lady ? — Twenty
irsineas a-year, to ^o and settle in the country,
and the choice of three different counties.

At what time was that oflier made to you ? —
The lime I cannot justly remember.

Itecollect ; how many years was it ago ? — I
believe it may be three years ago, or four, 1 am
■ot certain.

What was your answer to that proposal ? — It
■•de me very unhappy to think that 1 wm to
be banished, tnit 1 consented to go into York-
•Ure.

What were the counties that were propote<l
i» yoQ P-— Yorkshire, Derbyshire, 1 think, and
MtrthmiiberiaDd.

lo oonsfqnence of that consent to go into
Ttrfciliife, did yoa cro into Yorkshire ? — No, f
dU HI 7 1 went to Thoresby : I tried, bul I
•nM go BO further.

Wlitl wM the reoaoD that you cooM go no
fcttbcr?— From being unhappy, and going
^ in mjr friendf.

A. D. 177«. [570

Did yon receive any aum of money in conae-
qnence of going as far aa Thoresby P— None,
no further than was to carry me to the place
where I said I was to go.

You mentiooed an annuity of twenty guinarii
a-year ; has thai annuity been paid, or liave
you received any piart of il since that igran-
ment? — No.

Lord CcnoMntry. You snid yon were present
at the marriage in 1744; I desire to know
whether you have ever communicated tbat in-
formation to any person till this year, and to
whom ? — Ann Cradock. I have several times
to many, but to particular persons I cannol
speak. *

Lord Derhif, I should be glad to know whe-
ther you do understand, or do not understanit,
that any sum or sums were ever paid to an^
person tor your subsistence and board, Od the
l>art of the prisoner at the bar?— Jim Cro-
dock. No, 1 do not know tbat ever any ium wan
paid upon my account.

Lord Buckinghamshire. T desire to isk the
witness, whethprsheatany time did receive any
present whatever from the prisoner at the bar r
— Ann Cradock. Several m point of frienif-
ship.

Lord Townshcnd. Were you ever off'ered any
sum of money at any time, to conceal any
evidence ? — Anii Cradock, No.

I/onI Towmhend. By either aide ?«— ^nm
Cradock. No.

By Lord Camden,

I desire to know whether you law the hAt
at Thoresby, in the way to Yorkshire?— I'
was in the lady's house, and saw her several
times.

In any of those interviews, did any thing past
res|>ecting the annuity of twenty guineas a*
year, and the journey you U-erelhen making to
Yorkshire ? — No, not any thing in particular
as to that

What was the reason of your return from
Thoresby, and not going to your journey'a
end? — My reason tvas, from my ill atate of
health, and unhappiness of mind.

Lord Lyttelton. Did the lady explain to yoa
what were her motives for sending; yon, or, as
you called :t, banishing you, into lliose dist^
counties?— ylin Cradock. No, my lords.

J^rd Derhi/. What did you apprehend to be
the lady's motives for such a proposal?-- <-JnJi
Cradock. Timt 1 was ever at a loss to know, be*
cause 1 never asked.

By the Duke ofAneatUr,

Did you consn't a friend on ecootmt of the
substeuce of Mr. Fozard *8 letter ?— 1 did.

I desire you to tell the House, who that friend
was?— My friend wm Dr. Hosaack, wbo m
phvsictan of Greenwich hospital.

What is become of that letter, or bava yoa
it ?— 1 have it not ; bat it is in my box, I be«
lieve at Lainston, as I carried it with me when
1 went there with my otfter tfauigf.

171] 16 GEORGE in.

Bj the DoVe of Rickmomd.

Wts not the marriage to be kept a secret f —
Yet.

If daring the lime the imrriaffe was to be
kept a secret, ao^^ person had asked yoo about
the marriage, would you hate owned it, or de«
Died it ?— 1 never from the time divulged the
secret, until it bad been told before.

Did no person, during the time it was a se-
cret, ever ask vou if you knew it?— Several
haTe asked me, but I have always replied. No.

By the Lord President,

Do yoo not know, that your hnsband was
examined in the Spiritual Court, in the ^pse of
jactitation P — 1 know he was called upon in the
Court, bnt what passed I am an utter stranger
to, as 1 never asked.

Had not Mr. Hervey intimated to yon, that
jon were to be called upon on that occasion ?
. —He did.

After that did you hear any thing from Bf r.
BerveVi respecting yonr attendance in that
cause r— Mr. Hervey told me, he must call
upon me to assist him in the marriage, and to
fWeartoMrs. Hanmer's hand-writinp.

Were you ever called upon that occasion ?-*!
was not.

By Lord Derby.

Did you live with Mrs. Hanmer until the
time of her death ? — 1 did ^

Which happened eleven yeors ago the 9d of
last Decenilier ? — Yes.

Upon what have you sulMiisted since thst
tiose ?— Mrs. Hanmer left me 200/. ; one was
taken up, the oiher was left: 1 quitted the
lady^ house, and went to Newington. J
should have told you that the 200/. were in
this lady*s hands [pointinfi: to the Duchess] ;
one waa taken up, and the other, with my hus-
band's income, supported me whiUt lie lived.

How do yon know thst thst 200/. was left
you by Mrs. Hanmer? — It was lelt nie in lier
will.

By the Duke o^Ancasler,

Do yon of your own knowleilge assert that
therewas a child f — I do assert 1 was told ao. I
never saw the child.

Who told you so ? — Mrs. Hanmer told me
BO, and the iaily told me at our return out of
the country.

Who told yon there wna a child?— Tliis
lady at the bar told me so lierself. Both told

Trial q^ihe Dvc/tess ofKingsiofif \

Do you from your own knowledge, affirm,
that that child is dead ?— The lady at the bar
told me ic was dead, as she told ine before she
would take me to see it.

Did the lady at the bar bring the prinress of
Wales's coach, and carry you to see tlie chiM
at Chelsea?— The lady told me she wouM
eome m the prinoeM'a coach, and carry me to

By Lord JU^aor.
How old te jni sfprrhcad tbf diiU waiat

the time of its deatli ? — ^That I can give w
count of : it was very young ; but tlia i
know not.

Weeks, montlis, or years ?— Mootba, bv
years.

Did you ever hear that the child wa^
tised r— I did bear that the child waa
tiled ; but Mrs. Hanmer and I were ia
country at that time.

Did you ever hear what the child's i
was ? — No, I cannot recollect that I did.

Did you ever hear where the chiM
bnried.' — I did hear that it was burie
Chelsea.

Who told you so ?— The lady at the bar
me so herself one day, when I waa airin;
the coach with her that way.

By Lord Fortescue.

How have you suliaiited since yonr I
band's death?— With what 1 made of
furniture which was in my house, which
all new.

How long is it since your husband died
Five yeara last March. [Ordered to wiihdr

L. H, 5. Who doyou call next, Mr.Solic
General ?

Sot. Gen. We desire to call Mr. Ca
Hawkins.

Mr. Cdtsar Hawkins sworn.

Examined hy Mr. Dunning.

Mr. Hawkins, are you acquainted with
lady at the bar ? and how long have you b
so? — A great many years: I believe ab
thirty.

Are yon acqnainted fiitli the present I
Bristol Y and how Ion;;: have you i>een so f-
have hnd the honour of knowing the earl
Bristol nearly 89 man}' years.

l>o von know of anv intercourse betwi
my lord Bristol and the latly ot the bar
Of an intercourse certainly ; uf acquaintai
uodouhtedlv.

Do you Know from the parties of any id
ria^e between them ? —Mr. Hutckins. J ilo
know how far any thing that has come bef
me in a confidential trust in my pmfesi
should he di<(closed, consistent with my prul
sional honour.* [Question and answer
peated.]

Mr. Diinninfr. I trust your lordships ^
see nothiog in my question, that can \wi
confidential trust, or dishonor Mr. Hawkint
frivini; it. My question is simply, whether I
i Hawkins knows, from the parties, of any on
riage between them P

Lmrd High Sieward. The question that ^
asked by the counsel at the bar, is, ^' W
tber the witness knew, from any informat
of either of the two parties, that they w
married?" The witness objects to it, wlwll
he ia to answer any questions that are ine

• Sea Leach's Hawkioa'a Plc« of '
CrowBi book 9, e. 46, s. 99.

cuiie liimf«ir train
I, uadelihe
lenl, he will submil
save yuur lunlghiii*
- ■' -u loni lilt.

^^^^^F , Jbr Bigamy.

hfeM Wilb bb pmreuional liDnvr. Your lonl-
oliqia kre tu ilet«rnitn», nlirllirr ibe qacstiou
puibjr the ooqumI at llir h<f slmll heMkeilf

Lonl Mttmfuld. i su[i|>use Mr. Unwkini
Binna to demur li> ilie queslioii U|kiii the
Kroaiid, ihel il ciiue lu hia kiiuwleJgi: tame

•nxy Utaa hia beiti^ einplnyril «« « surgeon Ibr

M* or both of the jiiriic* ; mil I lake I'nr

)(ttnlad, ir Mr. HuwkiiiB untler*luuil» tlint

Hfeiir lordaypa'u|Uiiiuii,ili

lege uo that account lu exi

(i>inic Ibe nniwer, that thei;

n'ytj' your lurilihi|is' juilijin

U uiMer Ll ; Iherrl'cire, tu
(be trouble of an aii}(

fm in Diiinion, but tliiakB that a sar^eim h
an pritilrge tn tiotA gii'm\f etiilence \a n court
oTjuuicr, bulla bouail \tj the law of the lanil
ludoit; [if Roy «>' your lords hi|m think hr
^XHiob ■ priiilege, it will he a luittcr to he
lUbiiiMl elipwlierc, but] if all your tordiliipi
WHuieue, Mr. Hawkins will uuilBntaDd, Ihai
>'i<|aurJudKii>e"laiiil ojiinioa, tlial a sut^eo
!■)• DO privli^a, where it ii a malerial quei-
iKW, ia » ciril or criminal came, to know whe-
■bcr nirliea were itiarrieJ, or whelliera obitd
■u boro, \a say that hia introduction lo Ihe
pirtin wu in the course of his (irnfewioo,
■cil in that way lie came Id llie kDOwleilj-e of
II. I Uke it fur ifranieil. that if Mr. Bawkins
>a](fiiandathat,it ia a Bititfarliiin lo hini, and
I dor jualifi cation to all llie world. If a «ur-
;«« waa rujuolarily to reienl iheM oecrete, to
k tote be wouhl be guilty of a breach of
b°Mur, aiuJ of great indiacrelinn ; hui, lo^re
tlul informalian io a court of justice, which
^ iht law uf the land he it buunil to do. will
MfR be imputed lo liim as any iadiacretiun

' fite ia Ihe Ca»e of Annesley ». (he etrl of

itglcMy, Tul. 17. p. 1130, the objection taken

Ml) urer-tulnl to the exatninaliun of GiQanl.

XW, sIjw, Ihr exaniinutioQ uf Kirkland in earl

Fwrws'i CiiM, vol. 19, |i. B86. Set, luo, what

PNinl ujiuu lunl Bamui(tuii's ubjeciiug tu re-

'h1 BiNmdeQlial coininiiuicmiuii*, iafra. |>. biM,

■■J upon llio examination of Mr. Ucrklay,

■V^ p. (its. S«e. nlu>, Blackht. Coiiini.

h 3,c IS, p. 3rn, anil Peake'a Law of Efi-

litiitr, piiii I, c. 3, a 4. " Of iierauoB iocom-

I til of tlieir rclutiuD lo the ^ar-

iiiauy uoM^ on Ilie auhjea are

i ihe ttriuil from them is very

<<-io Dixon an atloriiey liad been
' ^'iie cvideucv, and lo pruitucc
iK'fure a yraud jury, upou au
(urii;ery lu he (iretiirred a);ainBt
'.'lit, by whom ihe pi)p<rB had
I'jily coininuiiuiBtnl tu him, Iba
' iix was iiutooniiMllaUelupru-
i'-'TiaifBiiiM hi* clieni ; and lord
I, tlua iiutead of producing iheiii
h he might, inimr<liaie)v upon
'Umuii, ID liivodelivered them
■TaUutr. li>87.

A. D. 1776.

Mr. Dunning. My queslioa is, Wlieiber
'uu knew from either of the partiei, thai llier*

lu Ihe Caie of Lea v. Wlieailey.in C. B,
Pasch. 20 Car. 3, where ihe detenilanl pleaded
thai he waq servani to u peer, Ncirlh. Ch. Jiiat.
held that the defendaut ouj-lil to sue his writ
of privilege; obseriin[>: that it was the prirl-'
lei^e of the maiter, nui uf (he aerTant, and per-
hapi his master would not proleol him, antl
then he must aaawer. And ha illustmled Ibia
doctrine by the caie of a counsellor, •' where"
said he, "'il is ihe pri«ilc^ of ihe clieai, thai
he shall not he cuidji«I1fi1 to discover Ihe te-
crels of Ilia client ; hut if the client Im wiUiugr,
Ihe Court will compel (h« niunael lo discDter<
whal lie know«." See Jacob's Law Uic«
tinnary, (\(n\i eililion, 1782) ail. t'ritilege. a.
4, ' Of Ihe privilege of peers anil metDLwrs of
ptrliaineot.'

The dqclrine respecting' Ihe extent of ihe
privilege ihut persons staudiat; in particular
rdutioiis lo a parly, shall not be examiniil
Bgainil such 1>arly, was very ably inTeati^ed
by Mr. Justice Bulier, in bis judgment faj

(ll) " This action was brought to recover
penalties upon the Bribery Acl, for bfibioif
voters St iIk e'eclion in 1790, for Ihe boroaah
of Newark-upoii-Trenl, lo vote <br uue of iIib
.ndiilate*. The bribery was chargeil lo have
been committed by Ihe defeudaot and bit aeeniB, .
amootc whom was one VV. Handley. At the
trial before Thoinsoo, baron, at the Noitiog-
■-— assizes, W. Handley wis called a* a wit*
who dejiOBed, thai priiviaus tu the <)iss»-
a uf parharaenl, he had received letters at
Newark from Ihe defendant in London, which
id notice tu produce. He bad lliem not,
but said he had restored some of Iheiu to ttie
dereodam, and given Ihe others to .^r«. Etiza-
belb Handley, with a direcliun to destroy them ;
he had since endeavoured to procure ihem again
from her Ibr that purpose, hut she had relused
to g'ire iheiu up. IV. B. Hundley, an aiior-
ney, was called, wlio said ihnt he had the tel-
lers III question, and ihat he hail received them
Mrs. E. U. He further sUted tliat he
not then concerned io carrying on any
n for VV. H. ; that he liad bran applied to
by W. H. lo be concerueil, hut had declined it
Bs lie WBS UDiIer-sbcrilT, and a material witiieM ;
Ibnt he hud not employed VV. H.'s altorney for
; but iliat VV. H, hadcunsulled hitn in liia.
pfOleBbiuii na a coiifiileniiBl person ; and bail
ipplivd lu him both hclnrc and atter be haJ
received the lellert. Tlin wilnets vhjedcd lo
iiruduoe ihe leitvrs f** J, and the judge thought
lie was iwl bound so lu do. — The Jitry luundB
verdict ti>r the JelendanL"

(') •' It was undenlood and argned upon
at the har, and so assumed by the Court, that
the olijecliun made by the witness In the pru<
duction uf llie letlurs, wu on llie fuuiidatioo
uC liiscliaracier i<f attorney, hy which he aior
ceivcd lunaelfbauod U withhold theiu."

575]

16 GEORGE HI.

Trial qfihe Duchess of Kingston^

[570

WM a marritge lietween themP — Mr. Haw-
Xmi«.«*Frt)m tbe conversatioQ with both parties
1 ftpjirelietided there, was a inarrinf;;e, but no -

vpop the case of Wilson against Rastal, 4 Term
Re|i. 763, at follovrs :

■ ** This doctrine of privile^ was fully discuss*
ed in a case before lord Hardwicke. Tlie pri-
vilege is confined to the cases oi' counsel, soli-
citor, and attorney ; but in order to raise tbe
privilege, it uioat be proved that tbe informa-
tion, which the adverse party wishes to learn,
was comnnuuicated to the witness in one of
lUoae characters ; for if he be ein|iioyed merely
at a steward, be may be eicamined. It is in-
deed bard in many catet to coui|>el a friend to
diaclose a confidential conversation ; and 1
should be glad if by law such evidence could
be excluded. It it a subject of just indignation
where persons are anxious to reveal what has
been comoranicated to them in a confidential
manner; and in the cateC6^ mentioned, where
Reynolds, who had formerly been the attorney
of Mr. Petrie, but who was dismissed before
the trial of the cause, wished to give evidence
pi what he knew relative to the subject while
he was conoemed as the attorney, 1 strongly
animadfertPfl on his conduct, and would not
suffer him to be examined : he had acquired
his information during the time that he acted
as attorney ; and I thought that the privilege
of not being examined to such points was the
prifilege of the party,(^c^ and not of the attor-
ney ; and that that |M:ivilege never ceased at
any period of time. In such a case it is not
sumcient to say that the cause '\% at an end ;
the mouth of such a person is shut for ever. 1
take the distinction to be now well settled ; that
Ibe privilege extends to those three enumerated
cases at all times, but that it is confined to these
cases only. There are ca^es, to which it is
much to be lamented, that the law of privilege
i» not extended ; thofw in which medical per-

(b) It was said in argument by the de-
fondant's counsel, ** In one of Petrie's causes
for briliery, tried a few years agu at Salisbury,
Iteynulds, who had been Pctrie's attorney,
though not so at the lime of the trial, tvtis called
to prove something that he had learned in a
contidential conversation with IVtrie, but 1^1 r.
Justice Boiler would not stiiler him to |rtve tlie
evidence, and strongly reproaclteil him for
bis anxiety to reveal the secrets of his former
client."

** In Madame Dii Banc's Case, where
trover was broui;ht to recover her jt:\vels from
persons who had stolen them in l-Vance, and
DDOught them over here, lord Kenyon would
not permit the person who acte<l at> interpreter
between the defendants and their attorney, to
be examined as to the conversation which was
held between them, considering the interpreter
anstanding in the same situation as the attorney
hiroasif, and said at the trial, * that he was the
orgao nf tbe attorney.' "

(c) Vid. Lindaey v. Talbot, BulUN. P. 2M.

thing in proof appeared before me: I mean
nothing as legal proof, but conversation.
But did they in conversation admit, that they

sons are obliged to disclose the information ,
which they acquire by attending in their pro-
fessional characters. This point was very much
considereil in the fluchess of Kingston's Case,
where sir C Hawkins, who had attended tlie
duchess as a medical person, made the objec-
tion himself, but was over-ruled, and compelled
to give evidence against the prisoner. Tha
question therefore here is whether B. Hand ley
were privileged with respect to any person.
As to W. Uandley, he certainly was not ; for
he said that the witness neither was, or could
be his attorney ; because he was at. that time
acting as under-sheriff. Neither was he pri*
vileged as to this defendant for the same rea-
son ; and though it was said that the defendant
(by W. Handley) consulted him in his profes*
sion, as a confidential person, the meaning of
that was, that as B. f fandley was more con-
versant with business of this kind than those
who were not of his profession, W. Handley
consulted him, but did not employ him as an
attorney. But it was contended on the part of
the plaintiff, that 8up|K>sing the witness were
privileged in any action, in which W. Handley
was a party, the privilege did not extern^ to this
action agsmst Kastall. Bnt to that. I caDBOt
accede ; for if he were privileged, so as not to
be examined to particular points in any action
against VV. Handley, he could not prove tbe
same facts in an action against any other per-
son. For the nature of this kind of privilef^e
is, that the attorney shall not be permitted to
disclose in any action, that which has beta
confidentially communicated to him as an st-
torney. However as H. Handley was neither
the attorney of \V. Uandley, or of the defen-
dant, I am of opiuion, that he was impro-
perly prevented from producing the letters in
question."

Lord Kcnyon said in giving his judgment
upon this rule for a new trial : *' But in order
to shew that the nrivile;;e extends beyond the

a cv V

case of an attorney and client, a hard catf
has been pressed upon our feelings, of coufi-
dence reposed in a friend. But if a friend ctiuld
not reveal what was imparted to him in confi-
dence, M hat is to become of many cases, even
affecting life ; e, p, UatclifPs case (l8St. Tr.
430). And if the privilege now claimed
extended to all cases and persons, W. InnI
Kussell died by the hands of an assasfin, aad
not by the lianils of the taw ; for bis friend
lord lloward (9 St. Tr. m'l) was permitted to
give evidence of confideniial conversations be-
tween them: all good men, indeed, thought
that he should ha^e gone almost all lengths
raiiier than have betrayed that confidence ; bat
still if the privilege had extended to such a cassi
it was the business of tbe Court to interfere
and prevent the evidence being gives. J tlMre*
fore think that this privilei^e is onlj allowed is
the case of attorney and clieftt."

fir Bigami/.
I tni wfrp? Anil it thai Ibe ^roiinJ
ufUD whrch you I'nrm Ihtil spprvheosron ? —
Y^ it \» ; ilKy did ailinit il in cnnferMtion.

Do you, ar ilo you not, kann that a child
(TM (h« Trait ol'lha'i inarriBye P—Ycs, I do.

C«n ^«u Irtl ihrlr hinblrip*. abaul what lime
dial cbtM IH8 hnrn r and where? — About ihe
lit** I BintKit l«ll. II' I ever put down an;
■fefa^ in imlin^ at (he lime. I mi;^hl hare de-
an*^ tt ifWwardi, nccording lo mj custom,
wbteb Is n destroy |iB|ier« thai are '>t' no uw,
•Ad which ml^t be irD|iroper lo be Ibuad alter

Inform iMr lordibips about nljal lime this
nighl b*, ai near as your memory will enable
joaMidu. — I ah ou Id suppose ilivan about thirty
]l«»t« »g«; but I <lu |irolpsl I du nnl know.

Where waa this child horn ? — At Chrlsea,
Mw to ChEftea-Collei^ ; but I forget the
.Mane of the street.

Wm Ihti tnarrta;;e, and ilie birth of thnt
eWtd, at thai time liepi a secret ?~l was Itild it
«u to be ft secret.

D<t yod know what is since become of ihal
(Mill?—! beliere it died in a tittle lime afier-

By voor answer, thai you uuderstood it was
U be kept a secret, did ynu mean the mar-
liare, or the binh oFlhe child, or both ?— Both.

Wliicti of the partiea can you recnllecl it
was, BUr; Hervey or Mias ChuJIeifrli, ihni de-
Arf UtHlTtightbekeiit aarcretr or both ? —
I ■booU lake fbr granted both rijuiDy.

I>B yoa know enoueh of ihe then Mr. Her.
Vcy't notioo* lo be able to inform their lord-
Mp*, whether lliis chilit wai bum after his
•m ar Mcend return I'ruhn sea, anbaequenl to
llw itarTiagv r — No, I do not kn'>w enough of
liil(Mltan«<olnBKer (his quesiion.

I>tt yon know whm a^^ Ihis ihild had at-
iMicd before ■(sdealtiN-l pMle«t I do natre-

drayoa recollrct about what time of ihe
ywr ft was you Hrst hesi'd this cliild was horn,
mt kbmt wliat time ol* the year you heard it
dMF— I do not know; I miglil hear uf the
tMb iniBedtately.

DM ynu erer attend the child in ihe course
or your prflfessioii?—! did once: I am lint
lare whether I did nut allend more, but I re-
(DcmbCT I attended it once.

!>• yow remember whether your recotlecfion
rfdiit traDsadion was, or was not, helped
Amtt Ihe lime of Ihe commencenieni of the
■M ta Ihe Spirilaal Court P— Really t do nni
Ikm any Iblog Ihal paned to bring it lu my
■indthea.

Were yon, nr were yoo not, applied to by
Mitr of the |iarties,or boih, at ihe lime of (he
WUienqing this suit in Ihe Sgiiriiual Court ?
— 1 WM ap^ieO to by llie earl i<f Bristol.

Wilt ymi be su good as to lell what was the
nraMtofkrd Bristol's then application loyoii?

nr. WatUct. On the pan of Hie noble laity
I ■n^-cubmit to your lordships, that noHiing
■il la Ihe absence of Ihe lady ii eTidence
wpimi the pritoner at the bar.

VOL. XX.

A. D. 1778. [578

Mr. Dunning- I will put Ihe <)ueslinn in K
way that it sliall be liable to no objection. Did
you, or did yon nol, in conaequvnce of lord
Bristol's npplicnlion, apply to the lady at the
bsr»— Mr. HnmkiM. Idid.

Mr. Sunning. Then lell ns, what was Ihe

purport of lord BriElol's application to voii, and

what message you carried fWim lord Bristol

to the lady ut Ihe bar?— Mr. Han,kim. To the

besi of my remembrnnce. the tart of BrisiM

met me in the street, and aiappe<l toe, telling

! lliai he should be glad < would call on hink

his house the firsi morning 1 had half aii

ur to spare ; and thst if I could then fix the

ie, be wODld lake care to be in ilie way, anA

other company shoulil interrupt tha

"'in, He iotimated Ibst il was not Ofl

his own health, hut on acconnl of an

old frienil of mine. I nsuied ihe lime, and

Hgbl hand, there lay two at three bundles of
papers, Ibliled itp as ihese papers are [taking
up some papers a[ Ihe bar :] to these panera ha
otlen pointed in course of what he said at\n-

rita. Alter making some polite apnli^ies to
Tor Ihe particular Ironble he was then girinff

, he told me il was on the present ducheat

Kingston's nccouut; Ihal be wished me to
carry her a messnge upon ■ subJEct that wu
rery disagreeable, but that he thought il would
be less shocking lo be carried by, aud received

■n, a person she knew, than from any
Btraiiger : thai he hail bren fir some lime past
very unhappy on account of'his mairimooial
connections with the duchess, Hisa Cbtidlejgh
that was then ; thai he " iahed to haie his free-
dom ; which tbe criminality of her conduct,
and Ihe proofs which he hud of it (which, in
pointing 10 the papers 1 betbre meolioned, he
said be bad for some tiii>e |in«l, with intent and
purpose to procure a divorce, been eoliecling
nod filing together :) ihot he believed Ibey
contained the most ample and abundant proo^,
crrcn instances, and every thing relatire to siicU
proof; that he intended to pursue his prosecu-
tion with the strictest firmness and resolution ;
bul Ihut he relained Such a regnrd and reaped
for her, and as a gentleman to bis own charao*
ter, that be wbliM not to mis mutice or il) tem-
per in the course of il ; bul Ihal in ercry re-
aped he would wish lo appear lUid act on the
line of a man of honour and of a gentleman :
that he wished (he said) she would understand
■hat his soliciting me lo carry ili? message,
should be receireil by her as a mark of that
disposition : that as most probably in Ihe num-
Irer of so many leslimonial deposiiions as vieti
there collected, there might be many offensive
circumilnnces named, superfluous lo the nece^
tary legsl proofs, Ihflt ir she plenaed I might
inform her, that her lavryet^, eitbei' with ot^
without henelf, tmgbl, in cnnjnncIioQ with bW
Iswyere, look orer all the depositions, sjid Ifaat
it' any parts were found lending to iodeceni oi"
soandalous refleclions, whith his gentlemen oif
the law should think might be oniiued without

679J

16 GEORGE III.

Trial of the Duchess of Kingston,

[580

weftkeniiig; his cauw, he bimielf thoald have
IK) objt^tinn to it : that as be intended onlj to
act upon the principles of a {j^entleman and a
man of honour, he should hope she would not
produce any unnecessary or vexatious delays to
the suit, or eidiauce the expeuces of it, as he
did not intend to prosecute to gain by any de-
mands of damages, I think, or to that purpose.
I deli%'ered tliis message to the duchess as well
as I could. I do not presume now, that either
the precise words, or the identity of the words
and expressions can be recollected by me, but it
was to tlie purport, as near as possibly I can
remember, of wnat I have said.

Will you recollect, whether u]M>Dthi8 con-
versation any distinct proposition was stated to
^e ducbess which required an answer? or,
what answer you carried back from the duchess
for that purjposeP You will of course be refer-
ring yourself to what passed between you and
the duchess. — 1 deliTered my message to the
duchess. After a little time taken mr consi-
deration, I do not recollect exactly what her
grace desired me to report to the earl of Bris-
tol; but it was to this effect: that she was
obliged to him for tbe polite parts of bis mes-
sage, but, as to tbe subject of the divorce, she
•bould cut that short by wishing him to under-
stand, that sbe did not acknowledge him for
her legal husband, and should pat him to the
defiance of such proof: that she had then al-
ready, or should immediately, institute a suit
in the Ecclesiastical Court, which she called,
I think, a jactitation of marriage ; but, as he
had promised before, that he would act upon
tbe line of a man of honour and a gentleman in
his own intended suit, she hoped that he would
pursue the same line now, and that he would
confine himself to the proofs of legal marriage
only, and not to other proofs of connections or
cohabitations : if be did, that he would make it
a process of no long delay, and that either he
would gain an equal freedom to himself by a
sentence of that court, declaring them to be
free, or he would the sooner be able to institute
his own intended suit. The earl of Bristol
received my message as one affected and struck
by it, making no reply or answer for two or
tnree minutes ; then, not speaking to me, but
rather seeming to express his own thoughts
aloud in short sentences, that he did Aot con-
ceive he should have bis equal freedom by that
method. I believe I should have mentioned,
that her ^ce desired, in part of her message,
that nothing might be brought forward, which
might be the subject of useless conversation
and scandal. He said, iu reply, that he was
DO more inclineil to bring forward any thing for
the lovers of scandalous conversation only, than
she could be ; and that, if he could not estab-
lish tbe proof of legal matrimony (1 do not re-
member the words, but to the sense of this)
that be was too much a gentleman to bring any
thing before the public relative to other con-
nedioni with the lad jf. I do not remember
that any thiDg material passed, or more thaa
this.

Do yon recollect that in any SQbseqnent
conversation with the lady, you were dedned to
apply to tbe gentleman for any other civility in
the course of this cause? — Before the first at-
tendance that 1 have lately alluded to in illnem,
Mrs. Chudleigh, her mother, did us tbe bdooor
of a private family friendship. After these
messai^es, her grace now and then called ob
my wife in an evening, frequently sayingy she
was passing to or from her law gratlemen.
When I happened to see her ^prace, I etery
now and then asked bow her suit went oo? to
which, I think, she always seemed to answer
cheerfully, < Very right,' and • Well.'

Did you ever carry any other messsges ?—
Two or three times, 1 cannot recollect which,
she asked me to deliver some message to the
earl of Bristol ; I am not sure whether one was
not a letter, or whether opon the occasion of
her asking me to deliver something, for mr
own memory 1 might not ask her to write it
down, but 1 really do not remember at present,
though I have endearoured to recollect what
the subject of these messages were : hot I
know they were of very trming import, no-
thing that could have struck me strongly, or I
should have remembered them ; and 1 oikler-
stood they were rather given to me, as if the
earl of Bristol was delicate in receiving any
messsge from her grace, and that I was only, to
expect a verbal answer on that account.

Do you recollect, whether any of these mes-
sages related to any witness or witnesses to
be produced or kept back ? — Certainly not ; I
never had a supposition, that the ducbess woaki
have given me such a message. Nothmg ap-
peared to me, but what contained matter of
little import, and of the most hodoarahle kind.

Did you ever observe, or do you now recol-
lect, any ground to form a belief, whether the
parties had forgotten or remembered, that there
was then living one of the witnesses to tbe fact
of the marriage ? — 1 profess I do not recollect
that : I have heard it in common conversation
in the town, but not that ever I remember from
either him or her at that time.

At what time did you receive that report
from him or her? — I think I have seen the
earl of Bristol but once since the commence-
ment of this prosecution, and then his lordship
seemed rather to speak peevishly.

Lord Matisfield. They will not examine to
what lord Bristol has said since tbe commence-
ment of tbe prosecution ?

Mr. Dunning, Was any thing, that my lord
Bristol said on that subject, communicated to
the lady ? — Hawkins, 1 certainly might, and
did, I believe, tell her grace what was said.

Lord Mansfield, Then you may go on.

Mr. Dunning, Then tell the house what
lord Bristol said, and you repeated to the lady*
^^Hawkins, His lordship seemed to be peevish,
that such a person was now brought rorward,
and as he had heard it suppled, 1 believo, for
want of her having such allowance or wadk
care taken of her b^ tbe duchess, as he sup-
posed she used to have. If 1 u&deBrtpo4 luA

igamy.

|] Jo

I, the ftrt of Brielol raiil, thi
^ wilb bim to FXuresB thlnei tn (hut pur-
lod Mill, llinl ir slie hi<1 been a<i easy In
t, or htd hnd as gonJ a memnry when
lae wai can-ieil on in ihe EcclesiaMical
, lb«l lie belieTed llie issue of il would
jBf>eondilf«rEnl.
■ill you be k> good as lo rEc<i1Iecl> nbether
■ cominiinieated this lo the Inly, and what
pBMd iifxtn llint nccBsion? — I did coramuni-
RateJIIothe ilueheis; bdiI I thought she vru
rather out nC temper nith the metsa^e, or irilli
roe, abe calliag at wj lioiue at a time I vmn
TcTV muMi in hute to go out upon businesii,
anil coold not give lier grace ihat tine to bear,
wlialnbe seemed lo wish to have lo Inik more
npOD it, She ulfereil In come again, bul I wni
then mH well in my health at all, end perhapc,
u ahe ni^ht liiink, nol i|uile so citil, would
Ml name snollier lime wtih her grace fur her
t»eill upon me, bul tnid, that J would lake an
niiporlaniiy. a< soon as I was able, of wailing
niwn hir trrare at her own house. I did do
ihii Mitiir lime alUr, and was lold at the door,
iliai l,i-r irrnce Was not at home. I left my
nuiif, uiid taid I should call aifain. Afler
NtM ttjt interval i did so, nn<l then waa told,
Ihrt her ^fnct was at home, but was laid down
MllMpt f'^f "hence I concluded, thai 1 was
WID caH again.

, An ] in understand from you, that tins lant
■MM(e from my Imd Britiul was never the
■UiiiBitiDn between you and Ihe iluche«s? —
IMrtlale it lo her during the time that ahe
Unaliny house,

- H»a yon at any time since beard any Ihing
fiaaihe duchrts uu IhalanhJeRl? — I did hear,
hn KM ftoui any good auihority, ihat her grace
*M tBlh«r aiii^y.

Baa tlic lady Derer convened with you nn
tkf Mdiject of this liiin'T witiirsi to the mar-
liige. from Ihal time lothis?_I hare never
I MR brrgrao bul once Hince, and that was
~ ~ ' t momiiig fiir a few mioulra ul the
Vewewtle's.
pmlly, at any time whalever. hare you
MV thing Imm the itucheK on llie siib-
' » living wilreM to llie marriage,

ma, iir any tbing connrninf;' berf

. tpalut, DMhiiig conduKirr ■ might hear
Lj!*** Ilm aiirh ■ person, but It was never re-
mmt. whctliershe was a belter or worse
~tM ; nothing relative tu ihai. wheihev she
bniaror HOrtieeiidfiire, onhalahe was
nrber,(irBoy ll)inglD ihal puriiose?
I W oadFnland you to have beard lier
•t tbare was sUL'b a witness?— In what
eonvtftatinn I caanot tell, but nothing
~~ made ine know, that there waa such
wba bad auch material knou ledge.

lord Urislol you

- Hy qneslinn il, Hbetber ynu

'■Mute thing from the Inily, or

lib iraa some accidental looser

H not W lnuttD(( mc with sutb a

A. D. I77S. [568

Was it (hen tneniioned in any looser or atS'
ciilental conversation, or any eiinveraatioB f — 1
protest, it la impossible lo remember thai with
any degree of preciHion or of line.

1 did not mean to ask yon to recnlt«cl any
particulars of Ihe cunvenialion. but simply lo
the point, whether Ihe duchesi ever slated lo
you, or acknowledged, Ibere wui a living wit-
ness lo the marriage ? — No, I do not reiiii-mbet
Ibat she ever staled to me, or said, that Ihcro
was a liring witness lo tl)e marriage.

Is il a &cl that ever you learned from iLe
lady P

Lord Dtrby moved the Clerk might read
ibia pari of the Evidence.

Hawkint. I ralber (if I may say any tiling)
understood from ber grace, thai Ibere was some
looser marriage, not ipiile in the common man-
ner. I Ihink I coulil remember on expression
ofher grace's once, u[>on her grace's spenking
on Ihe occasion. If I remember, I asked her
grace how her suit went on ? Tbii was towards
the laller pari of it. She looked grave, and
deaired to speak tn me in another room. She,
said, thai she had bad a greal deal of concern
and ai;ilatian of mind cince she last saw me,
which I remarked lo ber bad been fur a longer
interval otiime on ber not calling at the bnnte
upon my wifein the usual manner. Hergrace
said, that she had had so much concern upon
what she bad noi expected at the cnintnence'
menl of her suit, from finding ibnt a positive
ualh was ex|iected fruni her grace that sha
was not marrifd, and which she had for soma
lime Ingelbcr apprehended would be put in lier
in Ihal form, that she thought she should hava
dropped her suit entirely. tt>r that she wnuld
not for Ihe whole world have taken that direct
kind nf positive oath ; but that what bad been
oRereil tu her, badUeenaocump1ii;aied (1 think,
I understood) with other things that were cer-
tainly nol true, tbatabe could and bad taken
llie ostli, with a very safe conscience. To soma
ijueslions, I do nol remember the words In
her grace from me, bow Ihen she came lo in-
stitute a suil at nil? She nnawereil me, " O,
for that matter (I think it was) the ceremony
as duiii-, was such n scrambling shabby busi-
ness (1 do not say these were Ihe precise words,
bul to that purport) and so much incnmplete,
that bIi« should have been lull as unwilling to
have laken a pnsilive oalh Ibat she waa mar-
ried, as thai she was not married."

N, D, Thi* part nl llie Evidence was or-
dered lobe read by the Clerk, whoaccordinjjly

Mr. Dunning. I should be glad, if you
would tell their lordships, what it was that wn»
so particular in this busipesa.'' if the lady ever
explained it In you ? — Mr. JIuKkiHt. I never
bad an explanalion from thai moment, I bail
within myaelfa curioiily from ths lime ihal 1
carried the mesasge tn my lord llristol fiom
ber grace, and liii reception of il. 1 had ra-
ther imagbed ibnt ihtte was aotna marriage of

683}

16 GEORGE UL

Trial of the Duchess ofKingstotif

[584

wbich kgil proofs oonld not be prodoced, but
tbat was only my own notion : before that time
I bad no real authority at all ; I did no( know
myself honestly what to think of it.

JDid the lady ever explain to you, by what
reasou it happened, thai the question, when it
came to be put, came in so much more palatable
a form than she ex|iected it?— No, not in the
least: 1 should not have presumied to bare
asked such a question ; nor did she give me
any explanation at all.

IV 1^ any thing erer said by lord Bristol, and
communicated to the lady, respecting an inten-
tion of bis to appeal from this sentence?— 1
know nothiog of triat.

What said her grace on that subject f — Her
grace had told me, that the sentence was passed,
mnd that it was irrevocable and final to them
two, unless my lord Bristol, within a certain
limited time, did something to keep the catt»e
open. I do not know what that was. That
there was, she believed, some demur at that
time, as my lord Bristol was not satisfied with
the sentence, anil had made some demand by
bis proctor, if' 1 understood right, for the costs
of suit which were decreed, I believe, against
him.

I>o yon know whether the coats of suit were
ever paid by my lord Bristol ?— 1 do not, but 1
believe tliey were. I was going on to say wbai 1
recollected upon that. They bad some demurs
upon the costs of' suit ; but that if my lord
Bristol insisted upon it, she wouki give her
proctor directions not to let such a thing slop
the closing of the suit.

Do you then know whether my lord Bristol,
who by the terms of the sentence was to pay
the costs, did not, upon this, receive the costs
he had been put to in the suit ? — 1 know no-
thing mure than 1 have mentioned : not a tittle
more nor less.

Do you know of no other means that were
used to satnly my lord Bristol, and to prevent
this cause from continuing any longer open ? —
No*

Do j^ou know nothing uf an v bond that was
given from any body to any body, respecting
this cause and this question ?-»Not the least in
the world.

Am 1 to understand, that you say you know
nothing of any bond that has any direct, im-
mediate, or other relation to this subject ?-*Not
tbe least that ever I heard of.

You are not then a trustee in any such bond ?
—Oh no, certainly not.

Can you give us tbe date of the time when
the first messai^e was cunvt;yed from lord Bris-
tol to the lady through you? — I wasendea-
Touriog, before I came into the court, to re-
collect it, but I could not : I put nothing down
in writing relative to it.

Can you recollect the year ? — ^The message
must have been immediately before the com-
mencement of the suit, whenever that was.

1 presume, though you used tbe terms, ' hti
gtaoe/ and ' hia toriifaif,'yott perftottj wall ii»?
JMitoadt thtA wtUmi Am jjrtMi tSji^tniht

to these appellations at the time these
stances passed ? — Yes, certainly.

Does any circuaistanee impre«i you with
the recollection of the Lime of the year whea
this conversation passed, if you cannot tell ua
the exact year? — ( miuht Imvc enqoited bow
long the suit lasti>d ; but I protest 1 do not ro-
colkfct now any particular circumstances to
bring it to my mind.

Mr. Wallace. My lords, I have no quaa-
tion on the part of tbe prisoner to put to Mr.
Hawkins.

By the Duke of Anctnterm

Did you attend the child ? — I think oaoo.

Waa it a boy or a girl ?•— A lioy.

Do yon speak from your own knowladgv
that the child is dead ?— No ; but have no no-
sons to doubt it.

Do you know of your own knowledge, thai
that child was the child of the prisoner aA tho
bar ?— No. 1 could have no proot' of that ; lor
from the time thai her grace waa broughi-lo-
bed of it, I never saw the child till I waa saol
for to it in its illness \ perhaps I had hardly ever
heard of it : I had n^ver seen it.

Did you attend the ditchess at the time tbo
lay-in ? — 1 did not at her lyin^-io : 1 waa i^
sired, in case at any future time it^ bod baoi
necessary, that I should hate been a witaan
of the birth of that child.

Did you understand that child to be the !••
gitiroate child of the duchess of Kingaton and
Mr. Hervey ? — I did suppose so at that tigM.

Was you told so by any body ?— 1 could not
be necessarily tuld so at that time, becaoM 1
had been told of the marriage before.

Duke of Grafton, Were you, from the coo-
versation that passed with the party at that ikwtt^
convinced that it was a supposed, or that it
was a real marriage ; and were any expreaaiona
useii relative to the concealing the birth of the
child ? — Hawkins* 1 understood at ^hat time,
thai it was a real marriaife

Dnke of Grafton, Were there expressiona
made use of, that would not have been made
oseof in any other circuinHisnce?— l£c<«fciss.
I do not reuieiuber any particular expressioa
at all, only tliat I was desired to attend, with a
view and purpose that I might be a witoasa to
the l>irth of iliat child ; l»eing, as I suppose,
thought more proper, as a physical man, to he
in the room at the time of a delivery and tbo
birth of a child than any other person.

By Lord Lyttleton.

Who first informed you of the marriage?—
I should rather appreli.€iid it came from tho
duchess, before I saw my lord Bristol.

Do you recollect how long thai waa ago?'—
1 do not indeed ; it waa a great numy yeara
ago.

Do you remember to have heard aoy par^
tioular curcumstances related to you by eithtc
of the parties, concerning the celebnttioo if
that marriage ?^No, never move thao «ha& I
hare mantioned just now.

>r Bigamt/.
Vy lioril Camden.
yno ID il>e rocim at ilic lime or the it-
'!>> the bcsl ul' my remembrance, I

A. D. 1776.

id yon etfr tee the cliild itaelf?"-At the

of Uie ilcliiery I il»r(iBiiy I diil, All".

Ul H<iru I WM w^ot fur on

BW you then iny cerlnin knnwlcdi^e of iti

b Ue iviMPer's cliililf— ll I* im|>Dsiiili]«

leluny when I iswlbe child snine nionlhii

—'■"'- iijtii I coold hDon it tobeihe Mtne

By Lon! Raxcnsiriirlh.
got unileruniiil iliat the ilucheM ap-
■ji and iii«'< L-tinfin(«dlilst the semen ce
fi«ol(«Ulkliilul Cuurl wu 6n»if—Va-

U liberty to wtiry •K*i°<
H>iiieii(-i- was B|(|icaled from vi\tii'ui
rnn't — Mo*t cvrUioly.
(Icliveftfll llie priauoer? — I w»s en-
rmy lu re«olteol Iwliire 1 cauie, who woa
(waiiki inyiell', anil wlin delivi>rei] ber
but 1 jiroiut I liNve fort;allen it, h> a*
Mw rwotlecl- 1 cuuld not reculksl, il is so
iNg tfp. [Ordered lu witbdrow.]
1W Bod. Sapltia Charlotlt Felliplore ivorn.
Jtt. Gn. How Icmg beire you been ac-
IMbEMdwill) the prisdocr ut llie bar^—Mis.
JMir'v* Agriat nany years.

JiU- G*n. liiil you kunw tbe Uily belor« the
MttlI44f

In. SttUfkct. Oly lurda, I linve oo other
N>McfiO' ■'>> "^ the circu instances to be
I Mflired lAer, tbno nlmf ^iriws from my iMu-
_lMiiw teoMtJy witli the lady ; uid uoIpbs
ludiblp* rv<|Uir« it of me ■« » wittteu fur
I, I ibonld wi&h tu be excused.
. h- S- The luly must cerliiiaty dUclose
pihn tui»iM iiir ih« |iur[Mi>a« of justice.
By Mr. dltomry General
J j«a know tbe priwaw at the bar befure
t 1744?—! cannot recoiled.
Bid *M koBw the prisoner belure she ww
ploT boauur Lo tbe Iste iiriuccus of V/ ales P~

I ooBTcnst^no hsTc you ever bad nilh
kCrmUtive lo ber mar'iage wilti Mr.
_ "l belivre I b«*e lieud her say that
■In wm mMTWd lo biea.

CtA jau tecoliccl what circumBlaDces sl>«
hi ■rmiiiiwJ resfMKtiae that muriase, where,
u^ Mtwhaltinw, nod b«lbre what wilnesses!*
u B Butuiuer bouse, in a.

Cm yo« ranollect upon what accnsioM llteM

'-uiiviiujon* hale poaied belwpcn you and the

!«>*an*--UpDn luy wuid, I cauual pretend

^uj »kai'. i(i«liMt[ a|c«.

Ua yow racolUot any cMiieraatioD reapediu^

L IW dMkl Mtikb Uie phfoner bad by Mr. ller-

I <ni— I know tialbiiiK ahoul '

[iSSS

il ha* heea said Urtwcen the priaaoerand yon,
that she «a« niarried lu Mr, Uertrejrf— I be>
licvp but ouce.

Mr. Alt. Gen. MylordK, i i1»t1 noitrouttto
Mrs, Ftlti|>la.r nilb any u'ore ipiMiianit.

L. H. S. Would the cuunovl lor (Iw pri-
soner ask (be witness any qwaliniu ?
_ Mr. WMact. Hy lords, 1 idinll not ask Mra.

Barringlun.

Lord £nrrfnf ron tvFOrti.

Sul. Gen. Waif long bn*« you Ifpen ao-
[;uaii)te<) with the lady at the Iwr.'' — Lord
Barritigton. AbofeSUytara.

SuL CiiH. Did yixi ever bear fram the lady
at the I'lir, thai ahc wai tnatried tu Hr. Her*
<tey F — Lord Burringfon. Uy lonis, I am coim
here in ubedientw lo yuitrlordwluiia' auaimana,
ready to Kive leMimeay aa to any matter tl«t[
know ol* my owik knowleili,'*, or tl>at ha* com*
to me iu tbe usual way ; but il>* any thing liaa
Ireeii conlided to my honuur, or uonfidentially
told lue, I do bold, witii bumble RUbwiadoi) to
your lordship*, ihaLaa a man of boneur, aa a
tDDD regardful of tbe laws of aociety, ) cannot

L. U. S. Wbeu'tbe last wituees hut one
(Mr. Man kins) was nl the bar, he made souo-
tbing bke the Mine excuse fur hU not aukwer-
ing tbe questions put to liiin. He was tbeu
inJormed by a uuble and learned lord, and the
whole court agreed itith that lord, that suck
ijuvalioiu were to be aus»«red in a court of
justice,*

Lord Barringiott. I have no dnubl but ihat
ike qiieslioD il a proper qnealion to be aaked
by a court of Justice, otherwise your loidshipa
would not have permitted it to be asked. But,
my lords, I think crerv man must ael lYom hia
own feelings ; and 1 feel, that any prifate
oonrersutiou enlrutted to me, is not to be re-
ported again.

A Lord. Hii lordsbiu nill recollect llie oath
tliat be has taken, is, lliat he shall dedara tho
whole Irulb.

Lord Jiarrington. My lords, aa I underclaud
tbe oath, loan decliae anaweriog lliequeatioa
lliat haa been asked me witlioul acting con-
Irary lolhatoatli, without being guilty of per-
jury. But, ifilia tbeopioiou o/yourlardabijM
that I ara houud by Itial oath lo auswer, and

differently, for I will not he pGrjured.

Oucbew of Kingttim. I do release my lord
Barringlon from every ubligatiou of booour. I
wi»h, and oarnesllv dE«ire, ilmt erery witoea*
nho shall be nxamiued, may deliirer their opi-
nions in ctsry point jually, wbelker tor me oe
agninsi me. 1 came fioro Rome ai ibi' lia/artl
ut my life to aut render myxeir lo Ihia Court. I
bow wilhsubmisaivcobeifieaceloeverv deore*.
and do oui efen complain, that an «cclF*ii

S87]

16 GEORGE III. Trial of the Duchess of Kingston,

[588

•entence has been deemed of do force, altbougrh
such a sentence has never been controrerted
duringf the space of one thousand four hundred
and seventy- five years.

Lord Barrington, My lords, T do solemnly
declare to your lordships, on that oath that 1
have taken, and on my honour, tliat I have not
bad the least communication made to me of the
duchess of Kingston's cfenerositv. 1 have not
had the least communication with her pfrace by
letter, message, or in any other way, for more
than two months ; and 1 bad no idea of bein^
mimmoned as a witness here, until the Easter
holy- days, so that her grace's generosity is
entirely s|)ontaneous, and of her own accord.
But, my lorils, 1 have a doubt, which no roan
can resolve better than your lordships, because
jour liooour is as U\fr\\ as any men ; 1 have a
doubt, whether, thinking it improper that 1
should betray confidential communications be-
ibre the duchess consented that I should, and
^ve me my liberty ; whether her grace's ge-
nerosity ought not to tie me more firmly to iny
former resolutions ?

Duke oTRichmond* For one, I think that it
would be hnproper in the noble lonl to betray
any private conversations. I submit to your
lordships, that every matter of fact, not of con-
versation, which can be requested, the noble lord
is bound to disclose.

Lord Manxfield. I mean only to propose to
your lordships, to avoid adjourning to consider
this question or any thing further upon it at
present, that the counsel might be allowed to
rail other witnesses in the mean time, and that
lord Barrington may have an opportunity of
considering of the matter, if the counsel should
think proper to call his lordship again. — [This
proposal was over-ruled.]

The Counsel against the Duchess desired to
withdraw the Witness.

Lord Camden. My lords, I understand from
the bar, that rather than your lordships should
be perplexed with any question which may
arise upon the noble lord's difiicutty in giving
his evidence at the bar, the counsel would ra-
ther wave the lienefit of his evidence in the
cause. My lords, if that be their resolution,
and they think, that safely and without pre-
judice to this prosecution they may venture
to give up that evidence, your lordships, to be
sure, will acknowledge the politeness of the
iurrender. But, my lords, now I am upon my
legs, you will give me leave to make one short
remark upon this proceed incf, and to hope that
your lordiihips, sitting in judgment on criminal
cases, the hiii^hest and moat important, that
may affect the lives, liberties, and properties
of your lordships, that you shall not think it
befitting the dignity of this high court of jus-
tice to be debating the etiquette of honour, at
the same time when we are trying lives and li-
berties. My lords, the laws of the land, I apaak
il boMly in this gra?o aiMinUv, arc to receive
another answer from those who avs caMed te
depose at ymir krtiM ts !• Md tlwl iD peiBt

of honour and of conscience they do not thinkf
that they acquit themselves like persons of thai
description, when they declare what they
know. There is no power of torture in this
kingdom to wrest evidence from a man's breast,
who with-holds it ; every witness may un-
doubtedly venture on the punishment, that will
ensue on his refusing to give testimony^ As
to casuistical points, how far he should conceal
or suppress that which the justice of bis coun-
try calls upon him to reveal, that I must leave
to the witness's own conscience.

Lovd Lyiileion, The laws of the land have
spoken clearly on this occasion, and if your
lordships had applied them to the noble lord at
the bar, he has told your lordships that he is
willing to submit to your judgment. Bat, my
lords, it is yet a question, whether or not the
noble lord will be perjured p It is a question
uot decided by your lordshi|>s, that he will be
perjured, if he refuses to betray a confidence. I
am sure that I feet, and I apprehend your lord-
ships aa men of honour feel, the full weight of
the noble lord's objection. He will speak to
matters offset, but he does not desire to speak
merely to conversation. And, my lords, I am
not surprised that he should make that objec-
tion : for if yon consider how loose and inaocv*
rate all evidence of conversation must be, it
takes off in a court of justice much from its
availment. The noble lord has told jrou, that
confidential conversation may have passed be-
tween him and the noble lady at the bar: be
has stated to you his doubts, and 1 apprehend
he is not obliged to go on with his evidence^
until your lordships have unanimously pro-
nounced, that it is your opinion that he is
obliged so to do.

L. H. S. If the counsel for the prosecutioir
say, that they have no questions to ask the
noble lord, he may withdraw.

Lord Barrington, My lords, might T be al-
lowed to say a word or two, before I withdraw
'from this bar ! It is impossible that any person
can revere this high court, indeed any court
of justice in this country, more than I do. It
is not, my lords, from contumacy, of which I
am incapable ; it is not with any view or pur-
pose that any of your lordships would disap-
prove, as individuals, I am certain, that 1 have
taken the part which I have done. I do not
say, that there are no cases, in which a pmon
ought to reveal private conversation. There
are cases, in my opinion, in which he should :
there are cases, in my opinion, in which he
should not : and, my lords, no person can draw
the line but himself. But, my lorda, 1 have
recollected (I am obliged to the counsel for the
prosecution, who are willing to admit roe to
withdraw. I return them my thanks. 1 dare
say in that they have consulted my feelings as
much as they could, consistent with the datiea
of their station) but I haverecollectod, my lords,
since the generous manner in which the dnchsss
of Kingston has been pleased to absolve dm
from all ties. I have recollected, that she said,
-" wiilMd and desired lint I might say aay

iss]

^ Slgams.

A. D. 1776.

[590

thing. If her gnoe thinks that any thinff I
can say, consistent with truth, can tend to her
jostificatioo, I am then ready to be examined
to private conimonications.

Soi. Gen, 1 do not desire to examine the
noble lord. I stated to joor lordships, that 1
do DOC think the cause, m which my dnty en-
gages me, will at all suffer by having deference
to any difficulty that the noble lord may enter-
tain. I will not examine the noble lord on the
concession of the lady at the bar. The noble
lord stands at your lordships' bar a witness.
Having taken the oath, though I do not exa-
Bine him, the prisoner may.

Mr. Wallace. At the same time that I ex-
ffffss my astonishment at the offer, lord Bar-
riogton IS not called to the bar as a witness for
the prisoner. The noble lady at the bar has
ber witnesses, in her turn, to call, with which
the shall trouble your lordships.

Duke of Richmond. I do not look on a wit-
neM at the bar to be the witness of the counsel
«r of the prisoner, but the witness of the House.
I than, therefore, ask a question or two of the
BoUe lord. I will not distress the noble lord's
ftdiags by enquiring into confidential matters.
I will merely ask questions of fact. The 6r8t
qnettion I troulil ask the uoble lord is, whether
M knows any fact by which he is convinced
tint Mr. Hervey was married to Miss Chnd-
kkh?

Lord Barrington. I do not know of any fact,
vbicb will prove the marriage between the
^neben of Kingston and Mr. Hervey, of my
svn fcoowledflre.

Duke of Richmond. The noble lord must
kive it to the House to judge whether it will
tr not But does his lordship know any fact
i^ve to that matter ?

Li>rd Barrington. I do not know any thing
if my own knowledge that can tend to prove
tka marriage. I know nothing but what
I have heard in the world, and from conver-
sion.

IdHf^' Radnor. I am afraid your lordships,
by your acquiescence, have admitted a rule of
poceeding here, which would not be admitted
IS any inferior court in the kingdom. J de-
an, therefore, to ask the noble lord, whether
^ knows any matter of fact relative to that
■Mrriage.

l^rd Barrington. My lords, if I do, I can-
Mt reveal it ; nor can I answer tlie question
*iUioat betraying private conversation.

[Moved to adjourn. Adjourned to the Cham-
^ of Parliament.

After an adjournment of some time, the
I^^ returned to Westminster-liali.]

L. H. S. My lord viscount Barrington, I am
Mmaoded by tlie lords to acquaint your lord-
Aip,that it is the judgment of this House, that
J*a are bound by law to answer all such ques-
liNii^ as shall be put to you. — Haa the counsel

* Set what passed on the examinations of
Vr; BMrkins and Mr. Berkley.

for the prosecution any. question to put to tha
witness at the bar P

Sol. Gen, We shall not ask the noble lord
any questions.

Is. H. S. Has the counsel for the prisoner
any question to put to the witness at the bar?

Mr. Wallace. Not any.

Lord Radnor. . Does the witness know from
conversation with the lady at the bar, that sha
was married to the earl of Bristol ?

Lord Barrington, My lords, I have already
told your lordships the inotives which indues
me to think that I cannot, consistent with con-
science, with honour, or with probity, answer
such questions, as will tend to disclose confi-
dential communications made to roe. At the
same time I informed your lordships, that if
the oath went so far as that I should break that
oath, if 1 dkl not answer all questions whrh
could be put to me ; if that was the determi-
nation ot your lordships, I said I would not
break m^ oath. My lords, I continue in the
same opinion and principle. My own judg-
ment, as far as it guides me, which is very im-
perfectly, does ten me, that I am not obliged
to answer all questions that can be put to me.
But, my lords, though nobody can draw the
line of conscience, ot honour, and of probity ia
this case but toyself, yet in point of law, and
in interpretation of law, and the oath I have
taken, 1 am desirons of assistsnce from thosa
who can best give it me, and 1 had much rather
trust almost any man's judgment thsn my
own. I do not dare to ask again your kirdsbips*
opinion on that point. But, my lords, might I
be permitted to apply to the learned counsel
who are near me ; if it is the opinion of tha
learned counsel, that I am obliged by my oath
to answer the noble lord's question, 1 will rea-
dily answer it.

Lord Effingham. I apprehend, that no ques-
tion can be put in this court ou a matter of
law to the counsel at the bar.

Several Lords said, * You may ask the
counsel.'

Lord Barrington. My lords, f have put the
question to the Attorney General, and I give
,nim my thanks. He says, he thinks I am
obliged by my oath to answer all questions.
That being the case, I have nothing more to
say, than humbly to beg your lordships' pardon
for having given you so much trouble, and to
beg and intreat that you will believe, that no-
thing but the tenderest and the strongest feel-
iofi;s, and the most determined resolution to do
what was right in my situation, could have
induced me to give you so much trouble.

Lord Radnor. Whether his lordship knows
from conversation with the lady at the oar, that
she was married to the earl of Bristol ?

Lord Barrington. My memory I have found
by long experience to be a very erroneous one,
and especially with relation to things past long
ago. To the best of my memory and belief,
the duchess has never honoured me with any
converkativn on the subject for many, gaaqji

691] 16 1

yettts pHl; I bHli
IwcDty yeun put.

Ikt <'

. I I

And,

doablt'ull; ; but dfier tlie solution vtliicli Ihe
ttnrneJ counsel bas (jirpn in my dnnlrif, t mvaii
iii>l to coDcesI ■tiy tiling ffim j^our lorJslii|i».
Tbinking it rig-lil to be ekamincil, 1 Ihink it
riglil to give fronit soswtrs, anil any iloiibl io
kny thiu^ I uy will arise Trom my not reinpm •
bering well ibe drcoraslances. The diithrai
OlKin^nn, man? (i sboutd not say too niudi
if I WSB to ssy thirty) years agn, .lid entrust
Hie with a circumilHuce in her life, relative lo
■n engmcement of a malrimniijal kind with Ibe
earl of Bristol, then Mr. ller*ey.

Loril Radnor. Whether his lonlihip under-
stood, that lhiitniBlrimnnlBlenD^g«nienl,nhiGl]
bad already paiscpd, waa n marriage ?

Lord Barringlon. I understood, there had
been a iflalriroonisl engaifcinent entered into i
but irhether it nuiounled lo n legal marriisfp
Or not, I am not lawyer or ciciUao enough lo

£ord Radnor. Did hh lordship ever under-
■land, that there nus issue dI' thai marriage?

Lord Barringlan. Upon ray wiird 1 cannot
say; I do not know thai Ihe ducheia eter
made nny comniunicntion of thai sort lo me.
I bad heard of ii in ihe world, but I do nnl
know that tbe duchesa ever communicBted to
me tbe circumstance of her having hnrl any
iMue.

Lord Radnor. Does his lordibip know any
tiling or a band entered into on tbe pan of rbe
prisoner at Ihe bar, of lale yaars, reinlive to
the Huppreasion of erideiice, or Ihe payment of
ooHs of anil in the Keclesiaslical Court ?

Lord Barring fim. I never bad Ihu least coin-
inunicaiinn Iroin iIik itudiesi of Kingston, or
from any person relative lo any Iblng uf the
kind i I do nol recollect Ihat I ever heard of
. any such thing even in Ihe world; and tbe
ducliesB uf KluKSlon has never cammuDlcaled
to lue, iu ihe course of her life, to the belt of
.r belief.

Trial o/ikt Diichtit of Kingston
t ihote

r. Dunning. Mv lorili, wi
e Mm. Judith Philli|<«.

tbeti

IS pie:

inv thinif nl

n lUe least a deviation from the striclesi
rules of virtue and religion.— [Ordered lo with-
draw.!— My loi^s, is il too much lo beg, Ibal
what I have said al Ibe bar may be read over
to me f Part of it is of a nice nature ; 1 may
bate expressed myself improperly ; tlie writer
may have Taken It down erroneously : 1 shoiild
be glad lo have it read over lo me, Ibat I may
correct it in your lordBbina' prrsence,— [Here
the universal voice was ■ Read, read !' but lord
3arringlon spared the House the trouble, by
addressine himself to Ibeir lordships as fuf-
lonsO— My lonli, I find by ibe Clerk, that Ihe
pail which IB of ihe DicesI kind with reUliou lo
me, wherein 1 enpreased ihe difficulties and
teliogs I had on Ibe sulijecl of questions Ihai I
Iboughl I ought not to answer, and why and ou
wbal ground I have since Ibougbl il my duly,
underslandlug Ihat my oalh oliligea me to it,
to give my answera ; I find, niy lords, thai
part bas aul been taken dowo by^tbe Clerk, and

derire

family of the n

Uta. Judilli P/iillipi sworn.
Examined by Mr. Dunning.
You were th« widow of Mr. Amis, ww
nol ?— Yes.

Mr. Amis wja parmn of the psrish of

Did vou knoi
Merrill ?_I did.

Was, or was nol, Mr. Merrill'^ house in tbi
parish P—It was.

How long since did your hnsband dief-J
Seventeen years ago.

Do you know Ihe lady al ihebarf— Vo^
well. ^

How long hate you known ihe lady «t iM
bar?— .4 bout thirty years.

Were you privy lo her marriage in your hoM
band's lire-liiiier—l was not at the wmldinf
bui I beard my hnsbnnd say, he married tlien

.1 iM-d. Thai is not evidence. '

nr. Dunning. Had you not any Other IOMM
of knowing thai fact from ibe lady M Ihe Ml
herself?— Mrs, Phillipi. Yes.

Do you remember tbe lady at Ihe bar eotlf
ing lo WiuehMier f— Very well.

When ?— She cBme about tbe middle of Fe-
bruary, 1759.

Wna Ibal in your husband's lire-time, or
since his death? — In my husband's life- lime.

Waa it long before, and bow long betoMJ
Mr. Amia's desth t — Six weeks.

What was tbe occasion of ibe lady's visit
Winchester f— For a roister of her marrias

If you recollect any particulars of vri
passed upon thai occasion, state thera— "
came lo the Blue Boar in Kingsgate-ali
Winchester, and sent forme by six o'dt '
ibe morning. When I went lo her, she
me if J Ihoughl Mr. Amis would ijive
register of her ninrringe J I told her, 1 thon[
he would. Then I asked her to my houi
and when she came, she asked me lo m
wilh lier to Mr. Amis, and ask if he wotilil i
her and give ber a reicisler of her mai
I went nn lo Mr. Amis, and told Hi
what Ibe lady had desired. Mr. Amis
to see Ibe lally. Then I came down ai
ber, Ihat Mr. Amia at that lime was conBned
bis bed. The lady went lo Mr. Amis, and
Mr, Amis her request. Then Mr. Merrill
the lady consulted together whom to send fiuy
and ihey desired me to send for Mr. Spearing,
the Btlnrney. I did send for him ; aud during
the lime tlie messenger wus gone, Ihe lady con-,
ceafed heiaelf in a chisel : she said, sbe '*
cure Ihat Mr, Spearing should knnsr tl
was there. Wlien Mr. .Spearing cam
Merrill prodiiceil a sheet of stamped
ilmt be brought lo make the reglstei
Mr. Spearing raid, il would not do, it r
■ book, and Ibat ihe lady must be a'"* ~
of it. Then 1 went lo'lhe closet,

bilv. Then the lady mtne to Mr. S|>eariog,
■ad Mr. Spearing; tolil the lady n alipet ol
ttamfwil piper would anl do. it miiBl hea buok.
Tbm the tailf drtired Mr. Spearinof to |ra nml
buy oiip. Mr. Spearing went anil bouglitoiie,
■nd, wlien broughi, the regislvr was roHile,
Tlien Mr. Amis drlitd'ei] it Id llie lady. Tlit-
lady thaiik«il lilna, and said it might lie on liuii-
dred thousand pounda in her wny : nl the same
time *he addid, that (he had had a child liy
Mr. Heriey, and lliat it was a boy, hut that il
was dead ; ami that she liai] borrowed an hun-
dred |iounda of ber aunt HaDmer to buy bnbv
Ihioga. Before Mr. Merrill end the Uily M\
my bouse, the laily sealed up the rejjititer, anri
gaTc It to me, and de«ired I woiilil lake care of
■I uatd Mr. Amiii's death, and then drlicer It to

Hr.Mer

Did it accordingly remain in yonr bands
«ntd your huaband's dealb, and did yoii ihtn
deHrcT it 10 Mr. Merrill f— 1 did.

!>• you recalled, nbelher Mr. Merrill nc-
(■HMbled the lidy from the lime you Hrat saw
htv to Wiocheiiler lo your husband's house,
wM Mr. Merrill join ibem aUerwards when
ihn were there f — Hejoioed tlicm aflerwarda.

0a yOH remember, whether any other entry
WU'IMD made Id ibis reifigler.book, besides
thecDlryof tills mavria|;e.'' — l don't remeoi-
berany.

Do you recollect to hare ceen any thing of
the lady at the bar since your husband's death f

Do you recollect eny cnnTenition that hni
yMa«d between you at any of those limes?—
tim I had delivered the reiiiater to Mr. Mer-
iflL I waited upon llic lady al her huuie at
Emctitsbridt^, and found her in the ^rden. I
mU her, 1 hail delivered the register to Mr,
Uerrill. She ihaohed me for il ; and desired I
vould lake au Doliee of it ; ut the saine time
Ac Mid Mr. Swinn was in the gfarden, and
I would take no aulice to him of tin

se'

Oe you recollect any further conversation
abaol Uiis book, atler Mr. Merrill's death, with
dwUdy ? — I was once a-ftshing with the lady,
and abe tobi me some Ihingi that bad passed m
diefiniily. She lold me, that Mrs. Balhlirsi
bad naad her very ill, for she hod gut all the
naptn Mr. Merrill had of ber's al the time of
ail death. Upon which I asked her, what
wti become of the refrisier ? She lold nie Ihi
■blister of Ibe parish hud it.

Waa, or wa« nol, Ihe Afrs. Batburst yot
ki*« spoken of, Ibe daughter of that Mr. Mer-
oH?— She was.

Do jou recollect any other conversalini
■itb l£e lady at the bur, after ber marriagi
(Fkh ihe duke of Kingston T— Yes ; I waited
•pan ber in Arlington -street, after her marriif
•Hh the dgke of Kingston. She said to m
Wm il not very good-natured of Ibe duke
^nj an old maid ? 1 looked her in the luce
■i HoiM, but said nothing then. Hhe asked
n IT Hr. Herrey bad sent lo ine at ihe time
.^kMtiUlf I Mkl ha had not Mtit (0 na.

A. D. me. [59i

[The hook shewn lo ihe wilne«3 ] Can you
' sure, whether that Is the book you hate
been speaking of? — I am very sure.

1 believe lliere are Ihe vesligea of Ihe seals
about it still ?— There are.

Where it was *pnted up f — Yes.
Look ai the entries in the bunk ; arc they not
lur husband's writing? and were lliey not
ade in your presence? — TTiey arc my hus-
band's hand- writing, and ibey were made in
my presence.

They were made likewise in Ihe prtsence of
the lady at the bar, were tlipy nol ? — They

Clerk reails ;
■ Marriages, births, and burials in ibe paiich
• of LainatoD. Sd of August, Mrs. Susannah
' Merrill, relict of John Merrill, et.i\. buried,
' 4lh of August 1714, married ihe bunnuralila
' Auguttui Herrey, esq. in ibe parish ihurch

■ of Lainston, to Miss Eliatabrlh ChudleigK,
' daughter of colonrl Thomas Chudleigh, late

■ of Chelsea College, deceased. By tne
' Thomas Amis.'

Mr. Dunninj;. Kly lords, I have done with

Mr. Mantficld. I should be glad first lu see
the book. — I would wish to know by what
mpans you now sulwiat? what support you
hare ?— Mrs. Phillips. Upon my own pririla

Where do you live?— At Bristol.

Is your husband liring or dead ? — AIi»e.

What employment was he in, before he liveil
al Driitol upon his fonune? — [)e was steward
to the duke of Kingston, and a graaier.

Was he not turued out oftheservire of the
duke «F Kingston? — I believe be was not
turned out.

Do not you know, whether he was or not ?
— He wrote akiter to Ihe duke, and desired lo

Do you kuow then, that be ww not tamed
nut ?--Yes.

Hud he been threatened to he turned out, be-
fore he Bcoi that lelter?— Not thai ever I
heard of.

Had your husband bad any diflerences or
disputes with the duke of Kiug^tuu ? — No, not
that 1 know.

Was bis reason then fur quitting the sertice
of ihe duke of Kingslou merely bis own In-
clination, without any particular reaioo nr
cause? — He ihoughl the duke looked cool upon
him : for what reason he could nol tell.

Had the duke eier expressed any cause of
dislike to him ? — Not that I know uf.

How long have you left Bristol ?— About four
months.

Where have you lived? — Sometimes in one
place, Bometinies in another.

In whni places? — Somelimei at Ihe Turf
cotfee-hou»e, aoiuetimeiia St. Mary-Is*.

p% - -. -.- ^ - ■

»95]

1» GEORGE III.

Trial n/llif Duchtis of Kingston,

P9«

How much or Ibe Irme at llie Turf COffe«-
' kouse ?-'I reslly cinnot say exactly.

Von are ool uked as lu ■ week. Have you
liveJ iliere tbe greater parlf — Tlie greater

Who lias «iipaorled yoj at lite Turf coffee-
house F—OursJves.

Hare you paid the expellees of your support
ihere P — Thai 1 do not know any thing of.

Do you not know, that the whole nf your tx-
al the Turf coHee-hnuseii to be (jefrayed

~I hare ont.

do Dot koow it ia.

Itaieyou not iinilerstooi] si

Nnr (To you lielieveit?— I cannot tell wliat
It) lielieTe, or what is to be done.

Cannot you tell, whether you belicTe that

Eur expences at the Turf cofTee-honse are to
defrayed by Mr. Mcatlowa? — No, I do not.
I do not know aay thing of thai.

Do yuu not knoir, hy nhoni you evuect the
upence of your aupjiotl at the Turl colfee-
house is to be paid? — 1 do uut know hy whom
it is to be paid.

Hare you seen Mr. Evelyn Meadows at tbe
Tiirfc.,ffee.house?— 1 hare.

How often may you have seen that gentle-
toan there t—\ cannot tell.

Many limes, oronly once or twice? — I may
hare acco hicD twice or three limea.

Hare you not seen him oltener than thai,
there?— I have aeen him frequently iu the

Have yon not had frequent conTersations
with hrm ! — Not frequent.

Hare you notconrersed with hiiD sometimes
■I the Turf coffee-house, sonielimes at other
■lacesr— No where, but at the Turf coffee-

>Vho has been preseDlatsuchuonFerfaiiaDi?
•—My buabuod.

UltoelseP— Nooneelse.

Has not Mr. Fozard been present at some
«f these CO 11 versa lions F — Never.

Hare you not been at Mr, FojirJ'g house
with Mr. Meadows ? — N'erer; by accidentoo
^briiiinu-day 1 called at his door, and he
Baa there.

Were you in company with Mr, Meadows at
JUr. Fozard's?--! was.

Does Mr. Fozsrd assist Mr. Meadows In the
ooun^e of this piosecuiiuo? — 1 know notbioe
ttf that.

Do not you know, that Mr. Fozard has as-
«)iled Mr. Meadows in looking out for wit-
neiaesr— I don't know any thing about iL

Hare you u«t yourself been present at con-
•erhBliooa wiih Mr. Fozard about this prose-
(aiii»n ?— Notliiog, but what was merely ac-
Wdeiilal.

How often has that accident happened, that

Km hare been present at conrersalions with
r. Fozard about this prosecution P — 1 nerer
was at JHr, Fozard's hut twice.

His Mr. Fozard been at the Turf coffee-
bouse with you?— He came to aeo Mr. I'hil-
Ufs, wbtii be bad tbe gout.

How often might Mr. Fozard viait you ■
the Turf <:uffee-hause?-~He came tu see Ml
PhillipR, but nut me.

How olien might he visit Mr. Phillips there r>
~\\>0M three limes. -"

Hare you ever met Air. Fuzard at any oi
places besides the Turf coffee-house and
own house ? — Never.

Do you know of any promise made to _
or your bnsband of any benetii or adraniafM
cie)ieDdin|r upon the event of this proseculioaf.
— ^one in the world.

Did you iierer hear of any such promise be
ing made to you or your husband ?-~Nerer>

Hare yuu nerer said, that any such prooiis
or offer was made ? — Meter, nor it uever wu

Hare ^ ou never said any thing Iu that pur-^
pose ? — No, never lo any body.

Havit you never made any mention of uj
kind of benefit or adrkntage you were lo receive
from the evidence you should give on this pra-
secutioo ? — Not iu ihe least ; 1 don't wast it.

thai at tbe lime o _

in this roister no other en'iry was made?— 1

don't remember thai; 1 remember rer^ well

standing at the bed's feet when the reginter waa

made.

Do not you know whether an_y other entrji ■
was made ul that lime?— 1 doit'l, for I naf J
backwards and forwards in

How come jou then lo know, that the r.
gister of this marriage was made in ihe book a^|

thatti

.' -I Si

Did yon read it at that time ? — I beard ftll]
Amis read it.

Did yuu hear him read any thing else be-r|
sides the entry of the marriage P — Nothing but
that, for 1 was going backwards and forward*
iu Ihe room.

Do you know oolhlug al all, whether aDj<
lliini; else was entered hekidcs that at the timfl
of ihe marriage ? — I did not sec any thing but
that ; though it might, as 1 ffas going back^l
wards and fortviirds.

Did you see ihe entry of Ibe marriage in
book ?' -1 did.

Ityou saw that, must not vou have i
whether there were any other
the same leaf? — 1 beard it re
it afterwards hut when Ihe lady sealeil it up.

Did not you take notice thai ihere were othet
entries?— I did not.

You look notice of nothing ujion Ihe paper^
but the entry of this marriage ? — Of DOlhinf .

Did you keep the paper long enough befbr*
you, or did the Udy at liie hut keep the book-
long enough bel'ure her, lor her to see whi
iher what she heard read w
paper ?--J:4he held it in this i
the manner) 0|>en, and 1 saw it as 1 stood h
her : I did not read ii. hui heard il read.

Did all Ihe peisons, who Here present, hea
what was said aliontthe hundred pouoda Im|
by Mrs. Uaiimer ?— No, they did B

olh*'"
leea
saw

for Bigamy.

.ut—To Mr

Itily mIJ she hntl borrnwpil lool. of her aiinl
lira. Haompr toliiiy baby lliii»;s.

WI.K m Ibe UJy lell tUiit ti>
Amiii iiid In rae.

Uid she s[ieib it louilly or softly, nr how ? — .
Sb« fpoke it u ibe iru Billing by the beil-fliile
Utkinzlu Mr. Amis.

WbeB did you tell any bwly of such re-
gttutf — t really cannot say exaclly »hfD, but
I btre taid, I bail il in my poBseuiun.

Wben tliU you Grst meotiou i( ? — I caanol
tell.

Was Mr. Merrill present at tb? time when
this vntry was niaiie id tbe reglKlerf — He

Was be in tbe roam the wbolc lime ibat itiis
CMvecMtiun pas-seil, tbat you bate inentlonetl,
•rtcsdibi! IDO/. by Airs. Hanoierf—No, be
*M I)' It.

Dill Mr. Merrill come with tbe UUy, or tbe
UAj bel'ure biiu, or wilbnut biiu ?— Tbe lady
bi&re him, for Mr. Itleirill nas gone lu Laiu-

When Mr. Merdll came. Hid not tbe lady
npeu ibe cnaversatioD that hail liven about tbe
ifeM •ad the hundred pounds ?—Tbere was
■Mhin^of ibatiaid bel'oreMr. Merrill.
' Wm any tbinfruid about making any other
(Olry in Ihe register, besidei that uf Ibe iiiar-
riun?— NaijwiK Ibat I heard.

Wbeu did Itr. aierrill come inln tbe room ;
brfocc l]ie entry was made in the book, or
aft«- >— Before.

Wu Mr. Merrill in ihe room at ibe lime
4htt it WM made ? — He was.

Who was it broogbt tbe slBioped paper? —
Mr. Merrill.

Wu Mr. Merrill in the room when Ihe lady
MBcealed herself, as you baie said.'— Hewaa.

WTmi else was >n the room ? — No one except
myiolf.

Now look al tlie book. — I know ihe hand
rvfeclly well.

b ibe whale of tbat, which is written on that
Inf. Ihe writing of your husband 7— It is.

You bate said tliai you went to Arlinglon-
•reet; canyuu pa lue any person tbat you saw
there T — No one was in the room, when I went,
mepl Ibe lady.

Cko yon na
Ibcre?— Only
Ibni ■ miUiner

Cmi yon name those persouB? — I can't; 1
lotflhliitw them.

Cui y«u uame neilber of tbetn ? — The ler -
mtww Fozard.

Can you name no other sertanis Ihal you
■Wfberer— No; I bad an inaainmstioo iu
■J eyt, and the lady was encfedingly kiod to
Me: fhe ordered an e|^ to be boiled for me,
Ud Poaanl bmu!;hi it, in order that it might
WcpCDcd *nd laid on my eyi

Can yoo nime any other si
■wlbere? — 1 don't rememh

Lord Camden. My birds, I obspTTe in tbi^
niry vf the register tbe words ' was married'
cn ilnick through wilh n black tine ; 1 wui

iny jiers

I tbat 1

IS whom yoi

A. D. 1775. [598

10 know of the witness whether she can nc-
coonifnrtbat atruke?— Mrs, Phillipt. Uaniiqt.

^\v. Duniting. Il is a repelilimi. There is
mariiage written in the raarfjin. * August ibe
S'lib, married.' The t-DIry then pro'.'eeda,
' The boDOurable Augustus Hervey, e^q. wu
married ;' which being a repetition, I suppose
they Biriick thai through Ailh a hiack line.

Lord Camden, I believe it is so.

Mr. DuaniHg. If your lordships plea<^e, the
next witneBs to be calkd is, tbe rev. i>1r. Ste-
phen Kencheu.

The Re?. Mr. Stfphtn Ktnchen sworn.
Kxamioed by Mr. Duaxing.

Mr. Cunning. You succeeded Mr. Amis ig
this church at Lainslun, I believe F — Kenchcn.
I did.

When did you liriit see that bonk that bebal
in bii band, sad how did it come there P— The
firH lime that I saw tbe book was aAer the
death of Mr?. Hanmer, aunt to Mr. Merrill,
who maa buried in the vault of tbat liill*
church.

By whom was that book )>roduced lr> yoa,
and for what purpo^ef — tn order to reeiilw
Mrs. Hanmer's biirial.

By whom?— By Mr. Merrill.

Did you accordingly make an entry of the
burial of Mrs. Haomer ? — I made an entry of
theburialofMrs. Hanmer.

What then became of the book? — Mr. Mer-
rill carried it hack seain 10 bis own house.

When did yon nest see Ihe book?— At the
death ofMr.Marrill.

By whom was tbe book then produced to
you P— I cannot tay ; either Mr. or Mrs. Ba-
thursl, or lu the preaence of them both.

Did you then make an entry of the burial of
Mr. Merrill ?— I did.

What then became of tbe book?— I have
had il in my possession ever since.

Mr. Duuni'ig. My lords, 1 sbsll ask uft
mori? queitiuns uf this witness.

L. H. S. Mr. Wallace, would you ask this

witness any qucilions ?
Mr. Wallace. 1 have (

have no questions to put to
this witness.

Mr. Dnnning. If your lordships please, we
will now call the reverend Mr. Jolm Dennis.
Tbe Rev. John Dentin sworn.
Examined by Mr. Dunning.
Mr, Dunning. Look at that book. Were
you aoquaiuied with tbe band-writing of the
late Mr. Amis? You knew Mr. Amis, I pre-
sume?— Denait. I knew him perfectly well.

Do you know his band-writing when ]
•ee it? — 1 have seen his haod-w
-diuK him in Ihe liviai^.

ing oftea,

Did V

-1 ba<

him wnte, but nut id'tt-

Look ai that hand- writing ; tell me whether
you believe the two entries in the Rrsl paj^ of
thai book are bis haod-writintc ? — Ves, parti-
cularly bis name, Tbomas Amis, seem* ^mj

16GE0HGE III.

Willi liieilukeul

JJi) vou bdieve it li> le his lisail
) Wlieve llie Hfaole 10 Ue bis li
^Oraereil lo wUlidnn-l

Str. Dunning. I do nal know
Abe part ol'tliP (tiiaoiier, iliey mean
11)6 iirOfinifi wbicli it is tieccamr^ for
'STtbey require it, Ihe nuirmgr ■ ''■'

Mr. W'allwe. We are re»ily to ailmil thai
Tact, There is no douUi ol' lifr briii){ mar-
Tied by ibe licence of Ihe arcbbisliop of Cun-
terliury.

Mr. /tunning. Yna will give ns the date.

Mr. Wullace. Mt-nlioii wlmt ibe day is.

Mr. Dunning. The 8ih ol" Msrcb 1769, 1
Snderatand.

Mr. Dunning. My lords, we are now going
p prove a uareat eiitered by ibe laily, upon
tbe ajiprelieusioD of a suii iniKiiUed lo be insli-
(uied |iy Mr. Hervey id the Spiriiiul Court.

„ Mr. JamtiBWoro.

Mr. Dunning. Do you Lnow any thing of
the ca*eBi entered at Doclnra' Commons on lb
))Brloflhe Udy al the.bar?— Jumei. Yes, lb
caieal ig tniered in iliis book (producing it).

Is that the proper liook, ia which sucb en
tries ought to he mHde.''--lt is.

The Careat was reitl by the Clerk, and it ■
folloHS! ' The 18ih of August 1T68. I^t nn
< cllalion, inlimalioii, or other process, or any
' leilers nf request for the sume, to any oilier

• judge or juriadiclion whaltoefcr, issue uuder
« the Mai of this Court at Ihe luil or inslaDre

• of the hoiiDurahle Augustus John Heney, ur

* bis brullier, against ibe honuurable Elizabeth
7 Cbudleighi spinster, of any cause or suit mo-

• triinnnial, without due notice being giveu m

* Mr. NBthaoiel Bishop, proctor I'or the said

• honourable Elizabeth Cbudleigb, who, on his
■ being warned thereto before the judge of this

* Court, or his lawful surrogate, will he ready

* by himself or counsel lo shew just cause »f

* this sntne Caveat, and why no sucb process

• or letters of request should issue thereupon.'

Mr. Wallace. The witness merely produces

Ihe book ; he knows DOthiog of the lacl of ibe

entry being made.
Juma. I know Mr. Bishop's clerk's band ;

this ia his ha lid- nri ling-
Mr. Punning. Perhaps the witness may

Itnon, that Mr. Bishop ivax the proctor em-

floyed by the lady in the course ol that suit i*
Jama. I have heard ao.

. All. Gen. That appears on the record they

have put in.

' Mr. Dunning. I understand, that it is the

pleasure nf some of jour loidsliijia, Ibal we

■bould go into Ibe pruol' of the marriage of Ibe

^luke of Kini{3loD ?

Mr. Wallace, ll is admitted on the pari of

the prisoner.

nir. Uunning. But as some of Ihe lords

tviiiti for Ihe proof, we will examiDe it,

T? ial o/the Dmkesi nf Kingston, [600

The Ittverend Mr. Juma Treteck sworn.

Mr. Dunning. Be so good as find the re-*
gister of ihe mBrriage of the duke uf Kiugi

Mr. Trcbtrk points ilout.

CUrk reads. ' N' 93. Marriaijes in MarcE
17Q0. N°g2. The most uahlf Evplvti Pier*
reponi, duke of Kingston, a bachelar, >n4
the hunonrable Elizabeth ChudleiKb V
KfliglUsbridge, iu St. Margar^i'ii WeUmia.
sler, a spinbler, were married hy specify
licence of the archbishop uf Canterburi-
this 8lh of March 17<J9. by me Sawui
Harpur, of Ibe British Museum. TbUDiftC^
' riage was dlemnized between us,

' KlSQSTON,

' EuZ.tBETH Chuduigb,'
' In Ihe presence of

* MtSHAU,

' WlLUAU YeOi

' A- K. F. GiLBEBT,

' JlHES LaHOCHK, JUD.

' Alice Yeo.

'J. RoshMacktb,

' E. It. A. Laruciib,

■ Arthur Colueb,

■ C. MASUaM.'

"SS

Mr. Dunning. I am desired to apprize J«a
lordships of a tiicl, which may ft may itpl If
jirornl, if thought npcssaary. Tour tordal '

heard in the evidrnce nf the last wot

M:oLim of a cenaio Mr. Spearing, who wll
present. Tbst Mr. Spearing could not
tound. Ue, though mayor uf Wincheater,

found lo be amusing himself someitiii
or oilier beyond sea, God knows where,
bare witnesses lo give your lordships ibal
count, if your lordships think it necessary.—*
U'ill ynuf lordships now please to bear tbf
reverend Mr. Haipur ?

The Reverend Mr. Harpar sworn.

Mr. Dunning. Did you perfunn the
riage ceremony between these parlies?-
lUrjiur. Yes.

Mr. Danning. At ihe lime mentioned J
register 7— Mr. Harpur. Yes.

L. H. S. Have yuu any more witness

Mr. Cunning. We don't judge it nt
lo oAer lo your lordships aov more evii
ihissiageof ihehiisinrbs. If il should
so, we reserve lo ourselves the right of cvun
itig them herenfier.

Mr. Malluce. 1 beg Mrs. Phillips mav
called to the bar, that a kiier may be prodfui
lo her, and thai she may say whether il ia I
band- writing.

Mr*. PAi%f called.
Mr. Waiiace. Is that your haod-writiogi

Mrs. Phill^i. The name is my band-
Mr. Wallace. Is thai your '

riuilipi. it ia tu^ teller.

writing?^
nd-wriimK

•H

w

^F lliv duchi
WH; My Ou

ui fram JuVmi Piin^ips tn her grace
iliv duchen of KiogMoo reaJ.

W My My Oucheu ; I wriw your grace

Uni Iflirr. — My lie»t huever Iweu tiimly ul-
Urli«il III yuur grt^a'a inieresi auil |ilcaiiiire,
•nd niy uluioet wiih lo ileietTc your favour und
cauBicuaiice. Suffer me out ihro in my ile-
c)<niai( ycurs tu ihink 1 hafe tiirleiled thai fa-
•nur and prnteciioii, wiibnut inteationally giv-
IDK the moit tliatnnt hum.

' ' RJay I aolreat vour grace to ncce|it thti «i
) lincertf and bumlil? Bulimiaainn fat any tailnre
•f rMpvcl nud duly luyour ijrace; and peniiil
me uMi hninhly to entreat vuur grace'* kind
iDltroestiun witb my lnrd dute to continue Ur.
PhillJ|N his steward, uliuie liap|iinMa conaian
Mly in acling and dmcliarginif IiIb duly lo his
(tMc'a pleuure. I'hia addiiioaal mark uf
jBir grace'i gondneaa vre hope tii lie bappy in ;
ui in reiuro, the reaiainder of our lives ahall
k> paMed in gratitude uad iluly. The persaii
TtMcarrica ihit niil wait Ul receive vaurgrace's
plftuirR aud coinniinila lo her, who reuiaina,
*ilh ibe greaieat m|wcl, my lady ducbean,
)wr i;race'8 mogi dulitui aercanl,

■' J. Pimxips."
" NnTvmher 7, ITTl."

All. Gen. The eiidence, your lurd!ihi|is will
rtcollrci, gitni by llie wilueis wai in unNwrr
tgi qitMlion, nhelher ber huiband bad or had
uu Iwrn turned oul of hii place f pointing ihe
[|imllon ao ai tu give your lordships, aud la
tiiirthe wiinesK lo understand, that ibey meant
I :<: cirmmttuiice of being; turned oul of hia
; 'let ihoul'l go |>erBonally lo tlie ditcredit of
'■■' liuitiand, aad

I also imply some memory i
of ilie wife. The niinefs, i

■ilnd

' iliQt, told your lordahips, wilb

' ii pari of It a* might he deemed tn

r liusbaud'a credit in the business,

evigned hii place under llie duke,

; .cliiTirswhicTi I haieinmj'hand.aaduin
1 III ilaie lo ynur lordehipi, if it be ihoughl
iroaary before Ihe calling of the wilneaa, it
laii T«y cur reiponde lice, by which it appears
liitt ht did an leiigu bla employment under his
RTice into hii grace'* huids. He wrote

" t have ever dnue my duty ivilh llie »lr
nlrfgard to your grace'* iaiarest, and v
lli( mon perf^t reipccl. I b«ve declined
npliiit; D i;i>ihI aeltleluent, lo act cnutiiTmable
'■' j"ur grace's pleaaure, which her grace wa»
|>lcaMiil >o proniMi nhuuM be made up to me,
aliicii iiiiitt hafe eacojied hergrace'x iUFinury,
1 1 JjaTi- mnce had my rent cunstderably raiae'l,
ini! )iu much concerned to observe Idlely yuur
tTicr't ,t>tp|i!uure' and hrbg cmiiteiuus of t

■ of uiy duty, I uinal Ih.' un-
to your grsce. I bupe your
;

initeil to yi ..
kiteaed to penmt my dehi
%«f your grace'a aA'jiiri, whirb,
., i sau only properly keep,

A.D. 1776. [CnS

while satisfied myself, and faooourcd with your
grace's approbation, ^c."

In answer la wbicb he received ihi* teller:
" Mr. Phillips ; Your teller came lo me at
Newmsikel. Alter what has pasted, there i*
a<i occa>.iou fur many words. I^berin will be
at Hotin Pierrepoiit some time Dcxi H eek. with
my orders abuul iiellling your buniness, whieli
I flaller wyselCyou will readily comply with.

'la

a, &c.''

Alt. Gen. I believe I may refer to your
lordships' memory, thai Mrs. Phillips nieo-
lioned ilia grace's having looked coolly on ber
husband, which occasioned his reiignation.

A Peer. What is that, Mr. Aiiurney Ge-
neral, ibatynu have been reaiUng?

Alt. Gen. The Grst is a copy of a letlm la
ihe duke; the other, ibe duke's original an-
swer. If ii is iliought maierial enough to (rou-
ble your lordships w ilh it, we can easily prove
thai this is his grace's baDd-wciting. ana ifaia
the copy of bis grace's letter, which was all
that waa neceiury. lAdjourntd lo Mundii).

The Ptrni and Last Dar.
iAo'iday, April 33.

TheLordsanduiherscamefiumlbeChamhu
of Parliament in ihe cuslnaiary order, Pra-
clamaliOQ for silence being made as luual.

The Duchess of Kiagtlon was cundupled to
■lie bar, vhtu ber t;rnce addressed Ibe Lvids
iu the following Icnus :

Mv lords ; This my respectful a-ldrnn will,
I flaiicr myself, be favouruhly accepted by
your lordahtpa : my words will Uow freely fi-wa
my bearl, adnrtied simply with innocence aad
Irulb, My lords, I have sui&red iinlienrd-of
. my honour and tame have beett
:beili I have been loaded with re-
uUui'b iodignuiea uiid banish ipii
Tidered me Ihe less able to make my
dcleuce before Ibis augusl aasemlily against a
prosecution of so exiraurdiuary a nature, and
so nndcservetl.

My lords, with tenderness consider bow diffi- „
cull IS the task of myself to speak, nor say too
little nor loo much. Degmded as I am by ad-
versaries j my family despised; the honour-
able lilies nu which I ael an iiie>timable value,
as received finm my most nuhle and late dear
husband, atieinpteo lo be lorn lirom me; yone
lordships will judge how greatly I slaud in
uced ol your protection and iudiiiigenoe.

Mv lords, were I here to plead for lili>, for
rnrlu'ne, nn wordu frnu) me should lieat the air:
the hiu I iiislain iu my most kind coinuanion
and aH'pclionute husband, makes Ihe liiriiiec
uinrw Ihan indilli;ieDt lo me ; anil, when it stiall

Eleaoe Atiiiighly God lo ciil me, I sliall wil-
ngly lav that burlhcn doifa. I plead befoM
your loriUhips I'lr my fame and honour.
My lurdv, logic ia property defined, and wall

severely ai

603]

16 GEORGE III.

Trial of the Duchess ofKingstoHf

[604

represeDted in this high court. It is a lalent
of the human roiail, and uot of the body, and
holds a key which signifies^ that logic is not a
science itself, but the key to science. That
key is your lordships' judicial capacity and wis-
dom. On the left hand is represeoted a hcm-
roer, and before it a piece of false, and another
of pure gold. The hammer is your jnenetratinff
judflrment, which, by the mercy or God, will
strike hard at false witnesses woo ha?e given
evidence against me, and prove my intention
in this pending cause as pure as the finest gold,
and as justly distinguished from the sophistry
of falshood.

My lords, your unhappy prisoner is bom of
an ancient, not ignoble family ; the women
distinguished for their virtue, the men for their
▼aluur; descended in an honourable and unin-
terrupteid line for three centuries and a half.
Sir John Chudleigh, the last of my family, lost
bis life at the siege of Ostend, at 18 years of
age, gloriously preferring to die with bis co-
lours in his bosom, rather than accept of quarter
from a gallant French officer, who, in coro-
passtnn to his youth, three times ofiered him
bis life for that ensign, which was shot through
his heart. A happy death ! that saves tbe
blush he would now feel for the unheard-of in-
juries and dishonour thrown on his unfortunate
Kinswoman, who is now at the bar of this right
honourable bouse.

His^race'the late duke of Kingston's for-
tune, of which 1 now stand possessed, is valu-
able to me, as it is a testimony to all the world
how high 1 was in his esteem. As it is my
pride to baye been the object of affection of that
Tirtuous man, so shall it be my honour to be-
, itow that fortune to the honour of him who
gave it to me; well knowing, that the wise
disposer of all things would uot have put it in
bis heart to prefer me to all others, but that I
should be as faithful a steward, as 1 was a
faithful wife ; and that 1 should suffer others,
more worthy than myself, to share these his
great benefits of fortune.

BIy lords, 1 now appeal to tbe feelings of
your own hearts, whether it is not cruel, that I
should be brought as a criminal to a public trial
for an act committed under the sanction of the
laws ;— an act that was honoured with his ma-
jesty's most gracious approbation; and pre-
viously known and approved of by my royal
mistress, the late princess dowager of Wales ;
and likewise aulnorized by the ecclesiastical
jurisdiction. Your lordships will not discredit
so respectable a court, and disgrace those judges
who there so legally and honourably preside.
The judges of the Ecclesiastical Court do not
receive their patents from the crown, but from
tbe archbishops or bishops. Their jurisdiction
is competent in ecclesiastical cases, and their
proceedings are conformable to the laws and
eustoms of the land, according to tbe testimony
of the learned judge Blackstone* (whose works
are as entertaining as they are instructive,)

• Vd. 9, chap. 7» 98.

who says, "It must be acknowledged, to ibc
honour of the spiritual courts, that tboogli iliey
continue to this day to decide oiany qoestMNis
which are properly of temporal eognisance,
yet justice is in general so ably and impartially
administered in those tribunals (especially of
the superior kind,) and the boundaries of tbeir
power are now so well known and eatablisbedi
that no material inconvenience at present arises
from their jurisdiction. And shouM ao altera-
tion be attempted, great confusion wouki proba-
bly arise, in overturning long established tbrms,
new modelling a course m proceedings tlMl
has now prevailed for seven centuries."— And
I must here presume to add, as founded on
truth, that that court (of which bis majesty is
tbe head) cannot be stopped by any authority
whatsoever, while they act in their own iuiis-
diction. — Lord chief justice Hale says, ** When
there has been a sentence of divorce (which is
a criminal case,) if that sentence is suspended
by an appeal to the court of Arches (as a sups- •
nor court), and while that appeal is depcadisg
one of the parties marries again, tbe senteocs
will be a justification within the exceptioo of lbs
act of parliament, notwithstanding that the sen-
tence has been appealed from, and consequeotlf
may be reversed by a superior court." AaO|
my lords, how much more reason is there ftr
its coming within the exception of the act ia
my case, since no appeal had been made f

My lords, I earnestly look up to your Uu^
ships for protection, as being now a sufferer
for having given credit to the Ecclesiastic^
Court. 1 respectfully call upon you, my lords,
to protect the spiritual jurisdiction, and all tbe
benefit of religious laws, and me, an unhappy
prisoner, who instituted a suit of jactitatioa
upon the advice of a learned civilian, who car-
ried on the prosecution, from which I obtained
the sentence that authorized your prisoner's
marriage with the most noble Evelyn duke of
Kingston ; that sentence solemnly pronounced
by John Bettesworth, doctor of laws, vicar-ge-
neral of the ri^ht reverend father in God
Richard by divine permission lord bishop of
London, and official principal of theconsistorial
court of London : the judge thereof, calling oo
God, and setting him alone before bis eyes, and
hearing counsel in that cause, did prononnca,
that your prisoner, then the honourable ElizS'
beth Chudleigh, now Elizabeth dowagtf
duchess of Kingston, was free from all matri*
monial contracts or espousals, ss far as to bisi
at that time appeared, more especially with
the said right honourable Augustus Jobs
Hervey.

My lords, had this prosecution been set oa
foot merely for the love of justice, or good
example to the community, why did tbey not
institute their prosecution during the five yeai«
your prisoner was received and acknowledged
the undoubted and unmolested wife of the lal*
duke of Kingston?

My lords, tbe preamble * of the veiy acts0

/ iaeT0l.l4ip. lOlU

iriMb Wiittaiikiteii, pUtnly and in It rely pre-
cliiilw jour jiiiioiier ; it runs Ihii*: " Forai-
Diueh H ilivrri eril-ilispcut.ll iiersuns, being
natHciI, ruu uiil of one Guuiily inio aiiatlier, nr
' hi |il*ce( wliPre they am not knnwii, •uil
I'- bocome lu be inarrierl. IibtIii); another
' (ir huhbaiul li>in)r< to tbe gteal diabonour
' (■<■■!, anil ■iltprundoiii^t nfiiiTtrslionest men'!
sbilJr«u, anJ oibcn, Jfac," AdiI aa tbe preani'
bla hai nol bran c«DaiiIerE!il in be sufficient in
ny tiTOUr tu impeilc tbe trial, 1 bei;lear« toub-
HTfe baw much ynur pritouer tuHers liy beinijr
pRxlucf d belure liiia nnlile bdiiie, na llie penalty
of an act of [latliBiiienl, wiihoul bpnefilinij by
ll» preamble, wbich ii auppuicd lo contain ibe
wli^ aubatuiice, extent, auil meiniug ol' lite

Kt.

Uy tonla, upnn your trise remit on my un-
liapp* ca»e, you will brur in your wilbng re-
iiicinbran<x. lliul ibe nrpbananJ niilow i* your
^culiar circ ; and ibat you will be lendiu' ol'
Ibt boODUr ol' yuur late Umlber peer, and see
n ne hi> widow and rcpreiealnlire, recollect-
iii[how easy il may be lor a next ut'kin lo pn>-
■KUlt ibe widows or llie daughlera, not only uf
Hay neer. bnt ol' erery subjecl of Great Bri-
Ilia, il il cnn bn eirecleil by thenalb ol'one bu-
^r»ijuiMii'd nn<1iiiiere(ledold woman, nhode-
cUidl Kcveii ynais ago Ibnt she was incapable
of glTing evidence Uierean, m will appear in
^f bciure your lurdsbi|>s. And I may fur-
itr ohaerre to your lurdships, tbut my uiae is
rlorly wilhin the protim nf the alalule on
■bieb I am indicled. In llie third clause, il is
" iTorided iJiat thia act shall not extend lo any
fmno, wher« tbe former inai ria^e baib betn,
orbtrnfirr ahall be, declared by sentence of
Ut Ecdcsiasiical Court to be «uiil, and of no
•ftcL-

Iflbere is supposed to linre lieen a former
amiap, the Mine must have been s true mnr-
OV*. or a false one. II a true one, it caimol be
Jaclarcd roid ; and if a false oae, or Ibesem-
Uioce uf one noly, tben only, and no other-
inw,i*ilibat it can be declared tnid. — Tbere-
brrmuil this proviso hare respect to preteudt^l
■luiiTUKFa 'loly, and tononeoibcr: and such

■: II w, thai can be (he objecli nf causes of
iDiion, ilif- sentence in which is a more ef-

nil dirorro and separatiuu of'Ihe parlies,
I iiiany ditorees which have been ijtter-

I I" ^ill within this prntiMi.— The crime

<:''! "I II: 1 1 II- ludiclment was not a felony, or
■><-ii i< I' hi; oral olTrnoF, until ibs icI Of James
I'll, iiiu I: i ilicn, it was otily coKniiable in
I'll ) < I il .i,i>ii<:.'it Courl i and thoui^b an in-
'" iiiiiii ii.iiM lie far a ahKhl blow, yet Ibe

' II I '■■- iliil Liuislluw of ■ criniiiiarpiuac-

"iiio'i I'lr [i^Ntkiaray until ilial periiHl; su tliat
it II ' rii'.i' ..'iiiiFi wiibin the exceplioo of Ibe
<tii> ,' ,[:.i-- >t|iiiQ ibii (ulijMi, it la no offence
•' I ' ; .Ml III. SlitiWIi, bisbop uf L'liidon, has
<' N •-III, laws tb« law «f the land is llie
taWUml.

MWiihacfrnl, ilisl I bad orcslly
i ri>)1uu« by lilt ri-puMa of
1 bag l«ar« to

•bat n

A. D. 1776r
prisoner n

[60S

Yoi

possessed of a small estate in the Cullnly uf
Deron, where sir Georjie ChndlriKli, her
father's eldest brothrr, bad lsri;e (lossessiona.
The i>urcliase of that estate nas niiicb solicilnl
in Ibat county ; and hatinKfre<iuento|)|)orlUDi-
lies to dispose of it, il was ever made an innu.
perablK objection by Ihe intended purchaser,
Ibat I cnuld not mnke a clear title lo ibe entsta
nl of Hr. Uerrey's claim lo your pri-

■jfe.

Anil yoor priEoner being 'also possessed of
building lands for B greal number of years, fur
the same reasons she never had Ihe ground
covered (valued at l,iQOl. per aonnm.) And
as your prisoner's beallh declined, and mode il
necessary for her lo seek relivf iti fureigo
etimes (wbich increased her expences beyuoil
wbat ber circiiin stances could support,) and her
liille fortune daily decreased b^ money lake*
upon mortgage and bond, as mil appear by ib«
evidence of Mr, Drummond ; her royal mis>
tress likewise in tbe declineof life, whose dealb
would probably bare deprived her of iOOt. »
year ; the persecutions threatened on Mr. Her<
tey's side presented but a gloomy proa|iect for
ber declining life ; yuur prisoner was induced,
as she before observed to ynur lordships, in fnl-
lovr the advice of Dr. Collier, and instituted Iha
luitofJactilBlioi), your prisoner subscribing en-
tirely to bis npiaion, and followinir bis adrica
and instructions, which she presumes nliino is a
full detence against the charge uf felony ; for
your lordships in your great caiidoar caonol
think, that a lady can know roore of the ctiit
law, than bet learned citiiians could point out

And as a criminal and felonious inleiil is ne-
cessary 10 constitule the olfencfi with whiub I
sland charged, certainly I cannot be giiilly in
following Ibe advice I receival, and in doing
wbat in my conscience I thought an auiltorised

My lords, though 1 am aware, tbal any per-
son can prosecute for the crown lor an offence
against an act of parliament, yet i will veolura
to say, that few inpiances, if any, have beeu
carried iulo evecuUon without ibe consent of
■he parly injured : and with great defereoca
tn yuur lordships' judgment I venture lo de*
dare, Ibat in the preseul case no person what-
ever has been injured, unless your lordsbins'
candour will permit me lo say that 1 am in-
jured, being now Ibe objeiM «!' tbe undeserved
resenlmentof Diy enemies. Il is plain lu ull
Ihe world, (bat bis grace the duke uf Kingiion
did not think himself injured, when in the short
Kpaceuf five years bis grace wade Ihree wills,
each succeeding ooe more fsvuuruble lo your
p«isoncr than liie other, giving ihe most ge-
nerous and incontestable proof of bisaffeuLoa
and solicitude for my comfort and dignilj.
And il is more than probable, my lords, froru
tbe wall kuowD mutual friendship subaisllng
helweea us, thai bad 1 been inttrcsli'd, I might
have oblained the bulk of hia forliine fur my
taiudj. But i tesiiecied bis honour, I

HOT]

16 GEORGE III. Tnal of the Duchess qffCingstan, (008

loved lilt virtues, and bad rather have forleited
ny life than bavenaed any nndne inflaence
to injure the family. And though it baa been
induatriously and cmelly circulated, with a
tiew to prejudice me, that the iinit-bom of the
late duke's aister was deprived of the aucceaaion
to bis grace'a fortune by my. influence, the
wills, mv lords, made in three distant |»Griud8,
each excluding him, demonstrate the calumny
of these leporta.

] mu«t furtlier obaerve to your lordnhips, in
oppoaition to the charge against me of interest-
eduess, that bad I possessed or exercised that
undue influence with which 1 am charged by
the prosecutor, 1 might have obtained more
than a life -interest in the duke's fortune. And
though from the affection I bear to the me-
mory of my late much- honoured husband, 1
have forborne to mention the reaaon of hia dis-
inheriting his eldest nephew, yet Charles, the
•econd son, with his heirs, appear immediately
afler me in auccession ; William and his heirs
follow next ; after him Edward and his heirs ;
and the uofurtunate Thomas, lady Franceses
youngest son, is not excluded, though labour-
rag under the infirmities of childhood at the
age of manhoofl, and not able to support him-
adf. For the late noble duke of Kingston re-
peated! v mentioned to your prisoner, '* I have
not excluded him, for he has never offended ;
and who can aay God cannot restore him ?
Who can aay that God will not restore him to
health?" My lords, that good man did honour
to the peerage, honour to his country, honour
to human nature.

Bis grace the most noble duke of Newcastle
appeared with the will, which had been in-
truated to his grace for four years by his late
dear friend. In honour to the lady Frances
BleadoH-s, the prosecutor was requested to at-
tend at the 0|>enin^ of the wilt. He retired
with displeasure, disappointed that his oldest
son was disinherited, and unthankful, though
the duke's fortune still centered in his tour
youngest sons and their posterity.

My lords, worn down by sorrow, and in a
wretrhed state of health, I quitted England
without a wiifh for that life which 1 was obliged
by the laws of God and nature to endeavour
to preserve ; for your prisoner can with great
truth say, that sorrow had bent her mind to a
perfect resignation to the will of providence.
And, mv lords, while your unhappy prisoner
was endeavouring to re-establish her greatly-
impaire<l health abroad, my prosecutor filed a
bill in Chancery upon the most unjust and dis-
honourable raoti%i'S. Your prisoner does not
complain of his endeavouring to establish a
right to himself; hut she does complain of his
forming a plea on di^shonourable and unju!<
opinions of his late noble relation and generous
benefactor, to the prejudice and discredit of
his much-afliicted widow : and not satisfied
with this prosecution, as a bulwark for his suit
in Chancery, he cruelly institnted a criminal
prosecution, in ho|ies, by a conviction in a cri-
minal caaie, to eitablisb a civil claim ; a pro-

ceeding ditooonteiiaiiced by tba opinkHi of tbi
late lord Northingtoo.

My lords, I have heretofore fbrbomo, fron
the great love and afiectioo to my late noUa
lord, to mention what were the real notirw
that induced his grace to disinherit his eMsrt
nephew ; and when my plea and answer is
Chancery were to be argued, I partienlarly re-
ouested of the counsel to abstain from any le-
flectiona npon my adversaries, which tbe na-
ture of their prosecutions too much dcssrrsJ;
and grieved 1 am now, that I most no loofw
conceal tliem. For as self-preservation is lbs
first law of nature, and as I am loore and sbsis
persecuted in my fortune and my fame, asi
my enemies hand about pocket- evidence to is*
jure me in every company, and with douMs
tongocs they sting me to the heart, 1 am re-
duced in the sad necessity of saying, that lbs
late duke of Kingston was made acqosisiri
with the fatal cruelty with which Mr. Evdji
Meadows treated an unfortunate lad v, who wai
as amiable as she was virtuous and beaotiftl;
to cover which offence, he most ungratefbOy
and fslsely declared, that lie broke his curate
ments with her for fear of disobliging the dsia^
which he has often been beard to say. Thb^
with his cruelty to his sister and mother, uA
an sttempt to quit actual service in the late war,
highly offended tbe duke; and it would be £^
ficult for him, or his faUier, to boast of thl
least friendly intercourse with his grace Ibro^
wards of eighteen years.

My lords, in a dangerons state of bcshbi
when my life was despaired of, I reoeivsi a
letter from my solicitor, acquainting roe, that if
I did not return to England to put in su aa-
swer to the bill in Chancery within twenty-
one doys, I should have receivers put into »f
estates ; and also, that if in contempt of tbe
indictment I did not return, 1 should be oot-
lawFd. It clearly appeared to me, my kMnd%
as 1 make no doubt it does to your kMndshipii
that if in the inclemency of the weather 1 ridtcd
to pass the Alps, my lire would probably be en-
dangered, and the family would immediatdy
enter into possession of the real estates, snd if
female fears should prevail, that 1 shonkl be
outlawed. Thus was 1 to be deprived of Ufr
and fortune under colour of law. And tbst I
might not return to these persecuting sum-
monses, by some undue and cruel proMediniS
my credit was stopped by my banker W
4,000/. when there remained an open accoool
of 75,000/. and at that instant upwards sf
6,000/. was in bis hands, my revenues beisf
constantly paid into his shop to my credit
I'hus was I commanded to return home at tbe
manifest risk of my life, and at the same tins
every ai t used to deprive me of tbe means sf
returuing for my justification. Conscious af
the perlect innocence of my intention, and con-
vinced that the laws of this country could nsl
be so inconsistent as to authorize an act, end
then defame and degrade me for having obeyed
it, I left luly at the hazani of my life. It was

my
not for property 1 retnined, but to proft »/•

Jw Bigamy.

mIT hi hatmniUa woman. Grant me, n\
(ard«. but your guoil o|>iniHi, and tlien I Mil.
ju*li6ed ia tlie ionoeence of my iolenlion. m
]raa can tleprive me of nolhing tliat I vulit'
•ten if ynu should take I'rom me all m
worldly poueaiiODs ; tor 1 bare rested on tin
■Ml wli«re iba pogr blind Belisnrim is mid I
bfe atked oUariiy of every paiseo^r, alier
bavin ^ <!onr|ucrei] Ihe Ootba and Vandals,
Afneana and Peraians ; aod woulit do ihe same
■tlliaut murmuring, if you would pronniiuce
■1^ wtiat 1 hope your lordtliips will ulieerl'iilly
~^ rib* to — Ihal I am an honourable woraan.
J Ionia, your lale brother, Ibe truly bo-
ikbe duke or Kingston, wbuae lile wag
~ i by etary vjKue and every grace, doea
1 re3|)ectable charaGler pleail niy
d prare my ionoeence t
'§ lonli, tbe crideoce of ihr Taot of a f up-
1 ctaudeatine marriaee with Mr, Herfey
itjr«ly upon tbe lesticaooy of Ann

t perauad«d your lordships, from tbe

' in wbicli abe gave her evidence, al-

nady enieriaiu great auspiciooa nf the veracity

«f herlniiiiiony. 8be pretends lo apeak to

a Barriaife ceremony being performed, at

■kkh llir waa nut asked lo be present, nor cui

At aasij^i any rmoD tor Iter beini; there. —

Ik) ratal es a conduct in Mra. Ilaomer, who

ikp prrtenda tvaa present at the ceremony, in-

aMnatcal with a real mnrriu|^, Slie acknow.

Irffra that sho waa in or itbout Londim during

Ihe jaclilatinn Eiiit, and that Mr. Hervey ap-

. iied to her on that oceosion ; and swears that

I tbru and ever had a perfect retuembrance

: <!ii- marria^te, and wn> ready to have prored

li 111 )be been called upon, and never dedar-

ii> any person thitshe bad nut a perfect

rniry nl Ibe niarriHge, and that she never

" iltiired either tu giie or nith-hold her evi-

, ijir ; and from Mr. Hervey's not calliog on

:iii< wumNn, it is iasiuuaied he abuaiaed IVnm

IlK pcwtf by colluaioii with itie. She ulso

■irnuv, (bat I offered to make her an allow.

, mvr nl'vOKiniieaa a-year, provided she would

I|Id fitlter of tite three counties she baa

I, but acknow led^B she baa received

e. Vuu your Inrdithips l>e-

il If I cnuld Itnve be«u weak ennugh

• hMlitated the suit, with a eonvictiou in

Jta mind of a real lawful marriage be.

|[Mt. ilarvey and myself, that I would

■■y cSprnce, bare taken care to have

,_t woman onl nf tbe way f Out, tny

I tniat that your lordships will be per-

nllafleil, that great pari of Ibe evidnice

ia made for the purpose of ihe

riioui^h ahe baa denied she has

1 from Ihe evenl, or ever de-

kaa, y<rt it will be proved lo your lord-

llMt b«r future provision (as the baa de-

I K : and ootwlihatanding

• MW Iwvugbl herself up to swear Ihal

4 tllft wretnony «f marria4{e perform-

'II be proved that the hni ileclored

h«tr it. And it will be further

A. D. 1778. [010

proved lo yonr lordships, that Mr. Rsrvey waa
extremely snliaitous to have established a le^al
marriage wiib me for the purpose mentioned
by Mr. Hawkins, and that this woman waa ac-
tually applied to, and declared to Mr. Hervey'a
solicitor, tliat her memory was impnireit, anit
that she had not any recollection of il, which
waa thB reafon why «be waa nut culled as ft
witness.

My I'irds, if she is thus contradicted in these
particulars, and appears under the influence of
expectalions from this event of tbe prosecution,
your Inrdsbipa wilt not credit bsr evidence,
that ttie complete ceremony of marriage waa
pertbrmed.or any other particulars nhicb rest
upon her evidence.

Aly lords, wilh niepect to what your lord-
ships bare beard froni the will leeaes, of ray
dearre at times to be considered as the wife
of Mr. Hervey, your lordships in your candour
will naturally account for that circumstancei,
alter tbe unfurtuoate conuectiun that had sub-
aisied betweeu us.

My lorda, I call God Almlgtily, the searcher
of hearts, to witness that at tbe time of my
marriage wilh Ihe duke of Kiogalon, I had,
myadf, the most perfect conviction ihal il was
lawful. Thai noble duke, to whom every paa-
saife of my life had been disclosed, and wbOiB
affection for me, as well as regard far his owft
honour, would never have suffered bim to have
married me, had he nut as well as myself re-
ceired the most aolemn asauraoces Irom Dr.
Collier, Ihal thesenteooe, which bad beeujiro-
Douiiced in the Eccleslasticnl Court, was ab-
solutely final and conclusive, and that I was
perfectly at liberty lo marry any otbur person.
If llierefure I bavc offended agaiust the letter
of the ael, I have to offeodid without criminal
intention. Where such iuteulion does not exist.

your lordships' justice and humanily will lell
vou there can be no crime ; and yourlordshint,
lookins on my distressed situitioo witli an in*

iinlbrtuuata

looking on my distressed si

dolsent eye, will pity me

woman, deceived aud misled by m

tioDi of law, of Ihe propriety of which it was

iukpossible tor me to judge.

My lords, before I take my leave, permit me
to cxpresa ray warm and grateful sense of ihs
candauraodiadulKeaceofyourlontsbipR, wbieb
have given lae ibe firmest confidence that i
sbail not be deemed crimioal by your lordsliipa
for an act, in which I hadnnt theleaslsuspicioa
that there was any thing ill^al or immoral.

My lord*, 1 bavc lost, ur mislaid, a paper,
where I had put together my ideas to pre-
sent lo your lordships. The purpart was (o
lell your lordhliips, that ray advocate Dr. Col-
lier, who ioaliliited this suit uf jactitation. Is
now in a dangeicua slate of health. He
has liad two uhyaicians to attend him, by my
order, yeBterday, to insist and order his at-
tendance to acquaint your lonlibip*, that I
acted entirely under his directions ; that it wni
by his advice I married bis grace tlie duke of
K.ingston,assuringme thatil waslnwful ; that
he had the bunuor of going to his grace ih*

9R

«n]

t6 GEORGE in.

Trial nftke Duchas of Kingston,

[6 IS

«rcliliisli(ip of Canterbury lo obtain a licence,
' and M exjjlain every |>Drl Ilist regariJeil the
■intise; tliuthis e">ceivai 5DJu&l,sn pious, anil
ao good BH 10 lake lime lo consider wbetber he
would grant us a sjiecial licence for ihe nar-
rtage. AfierniilurecaosiilerBtionKiiil con^ulta-
' tton witii great and hoooiiralile persopB in tbe
lax-, he returned llie license to Dr. Collier,
Willi full permission for our mairiiiire. Or.
Collier wai preseni al the marriage ; Ur. Col-
lier siKned the register of tit. George's church.
Kt. La Rocbe lias frei|uenl1y ailended ihe
duke of Kingston to Ui.' Collier, where lie
lieard him cunsull the doctor if the marriage
would be lawful, he said it would, and ncTcr
could he con Irov cited.

Under these circitmstancea, I wished lo
brina: my advocate forth to protect me, He,
my Turds, is villing to make an aflidavil, to be
examined by the eoemy'H counsel, to submil to
antr thin^ that your lordibips can command,
VfiTlins lo justify hia conduct; but he has had
Ibe misfortune, my lorda, ever since Ihe latter
cud of Auguit, or the Brst week in September,
I do not well remember which, never to have
been in bed. I appreliended, from seeing him

Jesterday, nllh your lordships' indulgence, that
e lud tbe saint Anthony's- fire: but my phy-
sicians, who hare been with him, can gift a
better account, if you will permit ihera, of the
■late of his health, that your lordE.hipg may not
imagine that he keepu back, or that I am afraid
lo protliice him. If It is not to avail me in law,
J uk no favour; but I petition your lordship.',
and would upon my knees, that you will hear
the evidence that he wilt give to ihe justllica-
ti on of ray honour, though it doe« not avail me
io law.

' My lonU, I do request Ibal Dr. Collier may
>e examined in the Hlricleat manner, and by
every enemy that I have in tbe world. My
phyaicians saiv him last iijghl; and they can,
previous lo his examination, inform your lord-
tbips iu what slate Ibey apprehend bim lo be.

IjOrd Ravenstvnrlh. Afler what 1 have juat
heard from the prisoner at the bar, it is impos-
■Jble not to feet equally with the rest of your
lordships : and, my lords, what came last liom
the prisoner al Ihe bar I otrn strikes me with
the necessity of permiision being given, if it
coutd be done, to have Ur. Collier examiued.
' Lord Camden. I am really, roy lords, al
•oine loss to know, upon what ground it ixyour
loi'dshijis Bland at Ihie momenl with respect to
Ihe evidence of Dr. Collier. 1 do not uoder-
•land yet, that Dr. Collier Is called by the
prisoner or by her counsel. I do not yet un-
derstand, that io considrratloD of the iuGrm
■tale of Ills beallh. the prisoner or her couasel
do require from your lonlshlps any specilic
particular mode of examination, by which
your lordships might be apprised of the suh-
Btance of hia evidence. I uoderaland neillier
of these things to be moved to your lordships:
if tliey weie. milter nf debate on either one or
thcDiher might probably uiiiei ud tlieu this

is not Ike place for your lordships to enter into
a consideration of it. With regard to the cbs«
itself, which the noble prisoner has made for
one of her most material witnesses, it is un-'
doubledly such as would touch yonr lordships
wilb a ]iroper di^ree of coropassion, as far m
the justice of Ihe Court can gn, and yonr
feehngs ire able to indulge; beyond that it in
impossible, let your lordships' desire be what it
may: for you lo transgress the law of the land,
or to go beyond Ihe rules prescribed by thoaa
taws, ia impossible. A witness ao infirm that
be Is totally Incapable of atlendanoc! ysiM
lordships, ir you are lo lose his evtdctiGe, will
lament the want nf it: justice cannot ha M.
perfect and complete without Ihe eiarn'
of a necessary and material witness, aa
had it, Bui if a greater evil than that
happen {and it has frequently happened in (hs
course of canses), wbicli is death ilself, whid
shuts up Ihe mouth in everiasting silence,
this should arrest the witness before he couli
be produced, bis evidence is lost for evi
this witness should by his iniirmilv be
unable to attend whilst this cause'ltsta, 1 1
snrry lo say your lordships must go on wil
out him ; it is impossible to wait until tl
witness can be proJoced. While the cat
lasts (and your lordships will precipitate n,
thing io the course of Justice) if he can la)
brought, you will make every accommodation
tn receive him, you will take every meaos 'm
yonr power to make the atiendance '
convenient for bim, you will receiv
any part of the cause, even at the last raotnent.
before it Is concluded. So far your lordsbipt
■"ay go ; beyond that, I doubt, you cannot.
But, my lords, I have now been speaking wiiW
out a ijuestioD, wi'tboul a motion, without t~
thing demanded of your lordships by the |i
BDoer or by her counsel.

Lord Riitenncorth. I would beg leave to |
il lo those noble lords who sit upon the ben
whether tb^re ever was an instance In a crii
nal cause of a witness being examined olfaerw

Laid Camden. Tbe noble lord ii pleased ^
put a question particularly pointed to tuck ^
your lordships as hste been educated m ^
profession of the laiv, to know, ' whelh
any instance can be produced whei
ness, not stiendlog at your bar to
mined vivA zoce, has been permitted by col
mission, by delegation, or any other r
whatever, to give hb evidence out of
so that that evidence so given aut of
mijght be reporleit into the court, and slaiid ■
evidence on the trial ?' I nresume thai ia tl
point, in which the nobtelord desires to kooK
if any precedent can be produced. '»'*— •»-
quesiioD is asked, and ilie answ<
negative, your lordships easily c
much Ihe modesty of tbe answerer is to
lecled, if he gives a full,a posiiive.and a
negative to that question. 1 therefore beg )
be uoderstoud ascunlining the answer I
own luioffledge. Within ihe courte o

Wlienl

Jot Bigamy.

leticeaiid eYperieoce, I nerer did know
an instance ; I never baye to the best
memory read of sucb an instance ; I
icard or sucb an instance : 1 speak in
sence of those who are better versed in
d of knowledge tban myself; I speak
be law of the land, which is now upon
rdsbips wool- sacks. M^r lords, if any
se occurs to them, it will be easy for
rdsbips to apply to them ; I know of no
ind 1 miffbt add briefly one word on the
I hope 1 shall never see such an in-
10 long as I live in this world. What,
Is ! to give up, and to part with, that no-
ilege in the mode of open trial, of exa*
ns of witnesses vivd voce at your bar,
cross examination to confront them in
of the world, and to transfer that to a
chamber on a few written interrogato-
go too far in argniog the point: I
new an iostaDce. I am in the judg-
the House, and of the learned judges
ar roe ; if there ever was an instance,
produced, and in God's name let jus-
lone.

Lords then proceeded to hear the wit-

. S, Mr. Wallace, yon may proceed to

ir witnesses.

Wallace. The first witness I would call

^rkley.

Mr. Berkley sworn.

Berkley. My lords, what knowledge 1
this business arose from my being at-

0 lord Bristol ; and I must leave it to
rdsbips, whether I ought to be exa-
ts being attorney for lord Bristol, con-
vith honour to myself and the duty I
bim.

Wallace. I know the delicacy of the.si-
of an attorney : I merely call Mr.
' to what passed between him and Mrs.
c,' being seut td get her to attend and
le marria^^e.

Mansfield, With regard to the de-
put in by Mr. Berkley to the question
sked him, when they make him a wit-
ey subject him to cross- examinations ;
point is, whether he, as being concerned
tor for my lord Bristol, can demur to
stion put to him to know, what this
said when he went to desire her to

1 give evidence ? And as to that, there
» be no colour to the demurrer ; for the
m of attorneys is as to what is revealed
by their client, in order to take their
»r instruction with regard to their de-
This is no secret of the client, but is to
iral fact, what a party said to him upon

application ; and it has been oflten de-
), that as to fact an attorney or counsel
privilege to with-hold his evidence, if
a doulS: even if he swears to an answer
eery he cannot protect himself Irom
I, whether that is hi» cUenVs hai4 or

A. D. me.

[614

not, or to hui having sworn it, or the execvtioa
of a deed : it does not come within the objec-
tion to an attorney revealing the secrets of his
client. I suppose it is only mentioned to your
lordships lor a justification. If none of your
lordships are of a different opinion, it wUl save
time, and the witness will undentand it to be
the opinion of all your lordships.

Examined by Mr. Wallace*

I beg to know, whether you ever made any
application to Mrs. Cradock relative to her
bemg a w itness to the marriage f — 1 did.

At what time ? — It was liter my lord Bris*
tol was served with a citation to Doctoni
Commons.

For what purpose did yon apply to her P—
To know, what she knew relative to the mar-
riage between lord Bristol and Miss Chudleigh.

What answer did Mrs. Cradock give to
that ?— My lord Bristol was present. She said
she was very old, very infirm, and the transac-
tion happened many years ago, and she could
not at that distance of time remember any
thing of the matter : upon which mv lord Bris-
tol seemed vastly surpnzed, and said, How caii
you say so ? or to that effect.

Did she persist in not remembering any
thbg of the transaction ?— She did, and said
she remembered nothing of the matter ; and
that was the only time 1 ever saw her.

Mr. Wallace. My lords, I shall uk Mr»
Berkley no more questions.

By Mr. Attorney General,

Were yon sent to her as a person that wat
present at the marriage ? — 1 was employed i^
order to collect evidence from different people,
whom my lord* Bristol directed me to go to, and
other people, with respect to the marriage, as
his lordship wanted to have a divorce ; and ia
that way I saw Mrs. Cradock.

Did lord Bristol explain his want of a divorce
at the time he sent you to the witness ? — ^Tho
direction I had from my lord was in May 1768.

Was it at that time that m v lord Bristol told
you he wanted a divorce ? — It was.

What you have said was after the dtationP
— When 1 saw the witness, as well as I re-
member, it was after the citation.

Did lord Bristol describe the witness to you
as present at the marriage ? — He did. My
lord said, that she could prove the marriage. ,

When lord Bristol expressed himself sur-
prized at that disappointment, did he then ex-
press to you, that she was one of those present
at the marriage ^ — 1 do not know that my lord
did.

Was she never represented to you as a per-
son present at the marriage?—! understood,
as she was represented to me, that she was pre|-
sent at the marriage.*

Was her husband, Mr. Cradock, ever repre-
sented as being present at that maniage?—-

* See Peake'a Xaw of Evidence, chap. 9>
•• 4i p« 199.

I

I

I

B15]

16 GEORGE III.

Trial nflhe Ducheit nf Kingston,

Mr. Cratlock hna oAep tolil me, tbat be nas

Th« qaeation ibat 1 mean lo piil upon llial is,
Trby WIS the busbauil calleil wbo woa not |)rc-
■ent at ibe marriage, and Ihr >virc not tailed
who iVu reprMenl^d tu be present at the mar-
riage?— I bnoo' nothing ol'lhal; it went out
of my bands afterwards tn Doctors Commnnii'.

Did you dectine that pari of the bminess in
respect lo Dncton Gammons ? — I apiirebend,
I could not act there.

Mr. Wallace. Are you an attorney or a
pructor ? — Berkley. An attorney, not a proctor.
[Orderctl lo wilbdraw.]

Mr. Manificld. My lords, ne are now goini;
lo call Mrs. Add Pnicbard lo coutroilict pari of
tlic eridence of Ann Cradock. We beg the
Clerk may read Iheparl alluded lo.

The Clerk of the parliament was ordered lo
read ibat part of Ibe evidence i but not havia|j^
takeu il down, Mr. Guroey was ordered lo pro-
duce Ilia notes. When ihey were produced,
the psrt alluded to could not be found ; and

Mr..Afiini^r/d3ddre5se<l himself to the Lords
thus : This witness, dnii Pritchird, is called to
cDulradict Mrs. Cradock. In Ibe Orst place,
to prove that sbe baa told Ibis Mrs. Pritchard,
that she had some eipeciatious of advantage
froTU this prosecutioD ; and likewise, thai ate
did letl this witness, ibal she did uot hear any
part of ibe ceremony read al Ibe time when she
aaid Ibe lady at Ibe Inr aud lord QrUtnl were
married, though she has repeatedly told your
lordships tbat she had no *iew of advau[s<rc
from this cause, and Ihal she bad heard the
whole of the ceremony read.

Ann Prilchard svaia.
Examined by Mr. Mantfitld.

Do yoa know Sirs. Cradock ?— Yes.

Have you ever had any conTerEaljon with
Mrs. Cradock concerning the readinnf ibe mar-
Hage ceremony belween the lady at the bar and
lord BriatoH — No, I never bad.

Did you erer hear flira. Cradock say any
thing concerning thai ceremooy, ur ber having
heanj it, or Dot heard ilT — Never, before abe
was examined.

What do you mean, before she was exa-
mined? — Betbre a master in Chancery.

When was that P — 1 cannot pnrticolarly say
the time ; it was about a month after 1 n-aa
examined, to ihe best of my kooivledge.

Wbea were you examined ? — I cannot parti-
cularly say the time when she was examined.

Can you recollect how many months ago P
— 1 cannot iudeed ; it mighiw a year and a

What did Mrs. Craduck aay to you in that
GDnversatioD, which she bad vtilh you, about lier
liaving heard or uot baring heard the marriage
ceremony T— Sbe related her examinaiion be-
fore the master in Chancery concerniuj; her
grace's marriage.

In ihat conversation, diil Mrs. Cradock sajr
wbelhei she liad oi had out heard the nuirr iag;e

Tj

coir

ceremony read ? — i ne?er he«rd her relate aBy
Ibing concerninj^ Ihe murria|re ceremony. I
uudersland llie question now : I did nut belore.
She told me, she did not bear the inarnagg
ceremony. *

L. H. S. Let Ibe lost iiueatian be asked on)!

Whether Mrs. Cradock did or did not say M

.ju, Mrs. Pritchard, that she did or did m|

near Ibe marriai^ ceremony read i — She liM

sbe did not bear the marriage cerenwlfl

Had yoa any conTersation with Mrs. Cra-
dock about any advantage which sbe expected

im this prosecniinn ? — I had.

What did Mm. Cradock say lo you in tbat
conversation ? — Sbe luld me sne was to be pro>
idcd for, but io what manner she conid not
say, till after the aiFair was over, lest it ahoaU
be <leemeil bribery.

l>id you hear any thing more said by Hlik
Cradock relating In that subject ?— Not at 4Bfl
time, but nt anotlier time I hare. ^H

What did you hear from her al the iAH

me, Sbe lold me, it would not auil her un^
Ibis alTair was over ; and Iben if she should
get a good (brtuDe, she might come and live
wilh me.

Uid you hear from Mrs. Cradock any thin^
Slid of any jmrlicular proviiiion to be mudr for
her, or auy place lu he gol? — Her brvther ap>
plii'd to my husband al Ibe Custom-house, de-
xitiiu; him in CB$e be heurd of d vacancy It
him knuHT.

Alt. Gen. This is not evidence in Iheqd
liou now pro|Miaed, I know uuthiug of
\i 111 be brougbi ; hul ihi* is 0'>t evidence.

Mr. Maiitfielj. Nothing that pnsse^. n
It comes borne lo Mrs. Crailocb, will Ih> i
denee, lo be sure. The witness muat relaM

Alt. Ccn

lo the wiiiiesn rHaling"

Juther uiamif r what-
ich Mrs. dadiicki*

Mr. MiiRsficld. It is undT

thai il

a Mr^

Did yon tell to Mra. Cradock what ynift
heard from her hoihand ? — I Idd her niywdf.
thai her brother bid been at Ibe Cuslom-tiuiMe
tn desire my husband, when there wassTR-
oBDcy in the boufe, lo let him know <if it, M
Mr. Meadows had promised lo g<!( bini m
place.

What did Mrs. Cradock say tn you upon
your idling ber Ihis? — 8he bad never heard
any Ihiiii; about il.

Did ftlrs. Cradock say any Ihin^ more Iv
you about Ibis place? — Her answer was, it
ivBs more Iban sne knew, but that it would be
equally the same.

Wbal was meant by beingeqoally tbesame?
—She thought ber brother was lo provide fot
her ool of it, or at JosttOHllow herKMBetLi^.

— ■ "*^^

WBf] Jar Bigamy.

By Mr. Attornfi/ General.

Hew iDDit have vou been ■cnuninled nilh
Un. Cndaok ?—Pire ytin.

How toot; irilb the prisoner F — Prom the
(•d dT F«hniary tut.

Cw'uU tokuflv whMlier nnv body itb; pre-
Ha( at any of the couversations ivhicli you had
vitb Aln. Cnidock, but yoiirsell'f — No.

I urisb you would lell vhere tb^y weref —
Onoe al my own bouse at Mite-end.

Al H hat lime was that couTerMtioa held ai
your bouse nl Mile- end ? — It was on a Sunday,
iiM 1 (ntioot paitKularly tell Iho mooUi.

How long ago was that Sunday? — it ms a
icry little lime al\er slie had been eubptEoaed.

or kaa, after Hbe had bccti sufiptcnacd ? — It
nigl)t be more Ihaa a iveek, I caunul lell par-
ticularly .

fVhal reaanii have ^nu to know, that it was
villiid wnne abort lime alter she bad lieen sub-
paaMdf — Aa we were very intimate acquain-
INcei, aha came to dine wiiii rue. She (old
■t, (tie louf^ to tell me Hbat bad happened
mce the laM lime tlie saw roe.

Uat bow tong wna that last time t>he saw you
UTore that last time that she came to you againf
—I eaiHiot particularly siy.

Al near as yo«j can gn ; was it a fortnight f
— ItiDi);lil be a quarter of a year.

Have yuu any means ol recollecting within
t *ecb or n Ibrluight of the time of her hming
kw exanirtied upon the suhptenaP— I cannot
pOMibly recollect, a« not exjiecting ever to be
called upon.

Dues TMir intimacy continue with Mrs,
Cradock c — It alH-nyg did, until she has been
CDDflnnI at Mr. Beauwater's,

Did you ev
Mn. Cradoi'b,
N«.i«Ter.

Will you gi*e an account to their lordships
If the whole converaalion whicli Mrs. Cradock
keU upon the subject of thai marriage ; whe-
fter she told y<iu the whole story of ilie inar-
VifeT — She tuld uie a great deal of it: I do
Mlcnow the particulars.

It is imiwnsnl. that you should recollect as
Many particulars as yuu can, that Mrs. Cra-
^K^told ynii uf that marriage. What parti-
cdara did Mrs. Cradock tell you of that nar-
ritger— She told me that the had been eia-
^«d by a master in Uhaocery, who asked iier
Kritc knew of the mnrrini^'e between Augustus
Mn Herrey and Miss Cbudleigh ? Tbey
Mhed ber if she was in ibe chnrch ? Sbe an-
■wnd, ibe was. They a«ked her who was
h Ibe church? She toM tbem, herself, Mr.
Xtrrill and Mrs. Hanmer. They asked ber,
Kibe beard the ceremony ? Hhe told him, she
dd not. That was all the particulars 1 heard
btrrtkle.

Had nolyou the curinsity yourself to enquire
after toiDc more particulars ? — I bad uot.

rr tell you M what time of iiigbt

e Ibe lime it happened ?—

A. D. 1778. [fil8

Wai any body present at the conrersatjon
about the reward that the tiitneii enpecledr
-No.

At what time was that conrersation bad ? —
t was after dinner, it might be at two o'clock
n the Suuday ; it was Buinroer-liine I know,
but I cannot particularly say the month.

Was it the same Sujiday that the former

nversation |>ass(d.' — No.

Whether, when the witness propoted, on her
having a great fortune coming to her, that
she should lire with Mrs. Cradock, or Mri.
Cradock lire nilb heri*— Mrs. Cradock lire
with me.

What are you F — In a vety creditable situa-
tion, and a pretty fortune. I lire at Mile-end.

Do you carry on any buiineu at Mile-end t
— No. •

Are you married? — Yes,

Has your husband any busiuessF—Yes; a
place in the Custom- house.

Lord Croitenor. What do vou mean ly Mrs.

Cradock's being confined at Olr. Beau water's F

— Ann Fritchard. 1 went to enquire for her:

I was not permitted to see ber.

By Lord Denbigh.

I beg to know upon what account yoH saw
the prboner in February last? — By au invitt'
tion to ber house-keeper.

Did you see the prisoner herself al that
timeF — ( did.

What passed between you and ibe prisooerF
— I cannot particularly relate it; outbing; ina<

Did nolhiag pus reUlire to Ibis trial.' —
Notbing.

Did nothing pass relative to the conversa-
lions between you and Mrs. Craduck F— 1 dv
not recollect there was.

Lord Wejimtmlh. I lliiok the witneaa has
said, that Mrs. Cradock told her that abe did
not bear the ceremony read, an'l Mrs. Cradock
has likewise told A'our lordships, that she was
present when the Ceremony was read : I Uiould
be glad to ask whether Mrs. Cradock gaie any
reawn lor not bating heard the ceremony F
whether, that she was at a distance ru the
church, or the clei^yroan did not speak loud
enough F — Ann Prilchard. She was U too
great a Jistauce in the church.

Duke uf Richnand. Did Mrs. Cradock lell
you, that she had in her examination before
the roaster in Chancery said, that she did not
hear the ceremony reod F — Ana Ptiuhitrd,
She told me, sbe did.

A Lord. The counsel may produce thai

Lord Camden. I have been asking the same
(juestion, conceiving it would give light to your
lordships, if it could be produced. I find that
it is an eaaminalion de bene eue. Publicalioa
is not made, and the examinations are sealed
up. [The witness was ordered to withdraw.]

Mr. Wallace. My lords, I shall call wit-
neiifsa 'Oow -tu prore ibe oofiMiltatioa vf Dr

819]

16 GEORGE in.

Trial of the Dvchett ofKingHon,

[630

Collier ; and I ihili folloir that, my lord*, wilh
a proof nf wbat tilvice he gave to the noblc'
lady at the bar Bad tLe duke uf KfogalOD id (be
preMDCe of a witDeas I hare to produce. Mv
tords, we haf e teat, but find there ii no poiw<

Dr. Warrtn aworn.

Mr. WaUaet. I wuh Dr. WarrcD would in-
fonn your lonlahipit whether he bu lalely aeen
Dr. Collier.

Tit. Warren. I fluted Dr. Collier yeaterday,
mbout eight o'clock in the afleruooD, and Ibuad
Iilin Tery ill under avarirty ofconiplaints, par-
ticulariy a St. AnthoDj's Gee ia hii head and
&c«, by which one aide of it waa ao much
•welled, that the eye waa almMt doted up^
It appeared lo nie that hecould oat Tentureout
«itboat great hazard.

At(ornes General. What wrt of danget
do yon mean, when you apeak of the danger
under nhich tie would come out f — Dr. Warren.
I think that he is in danger. I cannot say
that it would certainty kill bim, but it would be
Tery inprudeat in me to adrise liim to come
out. [Ordered to withdraw,]

Hr. Manifidd. ThewilneH now intended to
be produced to yonr lordshipa ii Hr. Larocbe.
The Durpoae for which he ia to be produced it
lo tell your lordahipa, that he saw Dr. Colliei
frequently wilh the lady at the bar and the
late duke or Kiagston, daring the luit in the
Eccleaiasljcat Court; that he haa himaelf heard
Dr. Cidlier aaaure both the partie*, the laie
iake of Kingston and the lady at the bar, after
diat aentenee in the Spiritual Court, that they
were perfectly free to marry, and might marry
any one tbey pleased.

Mr. Laroche sworn.

Hr. Laroche. Hy lords, 1 did not know,
VDlil wilhio these few minutes, that it would
be necessary to call me. 1 will endeavour tu
recollect lotbebest of my knowledge. 1 have

Kt some memorandums in my pocket, and 1
pe I m» be at liberty to refer to them.
Lord lUgh Slemard. Are thej^ in your own
wriUug T — Laroche. A copy of it, and it has
been in my poaieasion ever since ii was copied.
A Lord. Copied by his desire ? — Laroche.
Yes, from my own notes,* and in my presence,
and has been in my own custody ever since.
Examined by Hr. Manifield.
IKd you know the late duke of Kington ?

and do — •- "■- "-..=-. "^- f.-.L

knew
Ctdlier.

U you know the late duke of Kington ?
do yon know Dr. Collier F—Ves, fboth
m hb grac* the dnka of Kingaloii and Dr.

* Bm Doet , roriuM, 3 T«na Bcp, 749.

Were you present at the mairiage of tbe tady
at the bar and the duke of Kingaton F — I wa*.

Was Dr. Collier present also M the mar-
riace F—He was.

Do you know, that Dr. Collier was conmlled
by the lady at the bar and the duke of King-
itoD, while the suit waa depending in the
Spiritual Court? — I do know, tbat I have fre-
queally walked wilh hia grace the duke •!
Kingston to Doctors Cnmmuns in a morning to
Dr. Collier. I bavegone alio with the daebeta
in her coach, and the duke likewise, to Dr.
Collier.

Ha* this happened ' frequently 7— Many

Were you ever present wilh Dr. Collier mat
the duke of Kingnon and the lady it the bar,
after that sentence had been given in tfaal
ciUTt? — I was several linae* at Dr. Cotlier*t
chambers after ihe auit had been determined.

Were yon present when Dr. Collier gave to
the lady at the bar, or the late doko of Khig-
■lao, or both of them, any opinion conoetninf
thecffect of that aentenee? — 1 waa many limsi
at Dr. Collier's chambers, and in convemtkn
I have heard Dr. Cellier tell the doke, that ba
might with Safely marry tbe ducheat of King-
ston, Hiaa Chudleigh asahethen waa.

Have you beard that opinion, or to that ef-
fect, given more than once f — i cannot beaaad:
I have heard it said from Dr. Collier to tb»
duke.

Have von heard that said also in the preaenck
ofthetady atlbebar by Dr. Collier?— I think
J have, to the best of my recollection. I went
with the duke of Kingston, I hreakftsted with
him, as well as 1 can recollect, tbe monilng
that he was married : we then agreed lo dina
together at the Thatched- House Tnvem. I
went into the city wilh his grace first of all lo
Dr. Collier's to get tbe liceuce. Dr. Colliefa
ivhen we came there, was not at h'ime, but waa
gone lo bis grace's house with the licence in bi>

taking these opinions of Dr. Collier P whether
it arose about aoy doubt enlerlained hy Iha
duke or the lady, or both, wliether they wera
at liberty to marry i' — Laroche. The duke cer^
tsinly had a doubt upon his breast, until the
suit of jactitation was over. In consequeoca
of that sentence, at the decree of which I waa
present, and which declared her a single W9-
man, heapplied to Dr. Collier to know whether
ibcre was any thing further to go on that roigbC
impede bit marriage? He naa told, No, tnat
the was a tingle wuman, and be might marry

Were these conrersations pending the ani^
or afUr the suit was determined?— Tbe Isst
eonveisation was afler tbe suit was over.
During tbe time of the suit, I have frcoucntly,
1 luppoaa when 1 wu ia town 1 mUuA fiit

Jhr Bigfimff,

Uty with the iluke, ami
o knoiT Iiotr the (uit
weol on.

l>i> yini recollecl lion laoff (lie suU had heen
detcrniinml berore ihe marrii^ witb the duke
of KioKtiODf— 1 should Ihiok, to the best ol'
my recolleclion — I belieTe wilhin three weeks.
Ta«rf> were 14 days to put in an appeal ; the
■pltral was revoked, and 1 beliere tliey uiKr-
fira the week ailer.

Uiil the duke's daubl conliuiie antil the day
of llie marriage? — He had no doubt allei- he
b»d applied for the hceoce, and the licence hud
becD granied.

What nasihe occasion of (be conversation
(hat pMsed upon the raoraing of the marriage
beweeii ibe duke and Dr. Collier? — There was
00 coDvenation upon il, as 1 remember, he-
iwMn llien upon ibe niorniog of (lie mnr-

Wbrn did Dr. Collier ioforoi Ibe duke, that
\«t oiigbt marry r_ll was, I beliere, ot'ler the
i-vnculiun of the appeal; but il "as afler the
Knwoce waa obtained.

Will you he so good as to fix the lime as
sitrly u you can, when both Ibese conversa-
tiona paased between Dr, Collier and the duke,
mi Dr. Collier aiid the duchess? — As for as-
Ceilaininf; a lime, I caiiool; but it was from
>Ih) mtKUng of tlie [tarliamenl in the mouth of
(Mober ITfiS. If 1 remember right, it was
Uic bediming of the eessious of parliament he-
l"it JMt ; and during ibal lime I used often lo
"Ilk with the duke to Dr. Collier'a.

Bow many days waa it before the marriage,
tf I in tnitlakea in supposiog you said the day
rflbt marriage 7 — It Diigbl be ihree or four
Mtt, or within a week.

Do you know that Dr. Collier bad been in
fcel inrarmed, llial there bad been a marriage
hwwnUie laily and Mr. Hcncy? — I luiow
BNUagBtklUflhal.

le that

A. D. 1776.

[GifZ

Uy and Mr. Uer

a marriage belW'
vey ? — i Duver knew thai
». «;c. . u..rnBge.
A you bwu BO inlormed. was my i|uet-
— From hear.say, and noihini; else, I
■Nid Ibere was a siiapiciun ufa marringe, and
IkW abe bad nut him upon the proof uf that
Bviii4(e, and that be bad failed In liis proof.

Had yAu, or had you not, been iafoniied of
kt marriage by the lady herself? — Never.

" nable iheir lordships to judge, what

aioo that drew the duke and du-

« nuke lliis applicatioD lo' Dr. Collier sc

nCMly before ihe marriage, aud so long alUt

tttMnumcef— I anppose, the meaning of Ibe

12 ilt'l Miair llK^e »as lo ask Ur. Collier,

ig *lia had the whole management of Ihe al-

Air.vlMtbar he could with safely marry Ihe

fin you kaow whether any body had

sated • doubt upon (be subject? —

I b»en a doubt before the acoleoce,

r the aciiteoiie there was nu doubt ; but

Ktl Ui&ti(ttt pro^Kt to ask liim, levauge

- atmaiT
h Cwyt

Z mito.

there was an appeal : that appeal was revoked,
and af^er tliat appeal he married.

Vilr. Manitield. If your lurdshipi will per*
mit me, I will ask one question of Rlr. Laroohe.
Whether in the upinion that Dr. Collier gave lo
the duke of Kingston in his hearing. Dr. Col-
lier fouuded bis opinion upon the effect of that
sentence wblch bad passed ? — Lareche. Ha
certainly did, in my conceplioti iif the matter.

Mr. Dunning. I should be glad to know,
whether Ibe witnesa meant lo have il under*
stood upon what Dr. Collier founded his opi.
nion, that luch a marriage, if it bad been law-
ful, could be set aside bv those proceedings ? —
Lansche. Tlie words 1 heard were these : You
may safely mari^ Miss Cbudleigh, my lord,
for you neither onend against the laivs of God

Lord Faucmiy'idgc. After this, had they
any doiibl that they might lawfully merry? —
Laroche. AWer the Hentenc« iironouncfd in Ibe
Ecclesiastical Court, 1 am firmly of opinion,
that neither of them bad a doubt as to the le-
gality of the marriage.

Mr. Watlact. My lords, I have many wll-
neases to prove facts, which 1 believe will b«
admitted by Ibe gentlemen no the other side,
because they have already been proved in ano-
ther place : Ihey are aucli as, the lady at iha
bar liviDgcontinually in the state of a singla
woman, and transacting in that character inal-
tersof consequence relalire to property: they
are alreaily contained in depositions in another
place, and I shall oRer lo your lordships now
that HCDience which has been pronounced in
Doctors' Cnmmons : the officer swear* lit
brought it from Doctors' Commous. Your
lordships are ia poMessiou of it.

Att. Gen. I have alteady staled to your
lordships the measure which was observed in
giving evidence in that case in Docmrs' Com-
mons, both upon one side end the other ; and
I stated the measure observed upon the part of
the prisoner in Doctors' Commons to he that
of her having given evidence, that she acted aa
a single woman in a great many traoKaclions.

Mr. Wallace. Then, my lords, 1 call no

Sol. Gen. My lords, the cuitom which haa
prevailed in trials at your lordsliips* bar, aulbo-
rlzes the counsel on the part of the prosecution
to observe upon the evidence that bas been laid
before your lordships, and to apply that evi-
dence to the charge. Ia the present case,
wishing lo discharge my duly as counsel in a
public prosecution without the least d^ee of
unnecessary severity, or occasioning a mo-
mentary reflection of pain to the advene party
who standB at your lordships' bar; reflecting
on the whole course of Ibe evidence (bat haa
been given ; bnng in niy oivn mind so clearly
convinced as I am, that the evidence ollered in
support of (he prosecution Iiai not in Ihe lean
di'tftee hceii toiwered by any eviduuce that ba<

I

I
I

619] 16 GEORGE III. Trial n/the Dwhrfs ^^igi/XiKgston,

Collier ; anJ I sliall fbllow thai, my lord*, with
a |)rool' nf wlial >iJtic<; be ^ve 10 (he noble
luilj at the bar niiil llie duke uf Klugdlon in Ihe
preaence uf a wiinesa I hare in pruiluce. M^
jonlfi, we have seat, bul IidiI Ihere is no possi-
bilily uf hrJDgiag Dr. Collier, or he slioiili]
' beeD here.— VV< wdl aovr cull Dr.

[6Sf

War

Dr. Werrcn iworn.

Mr. Wallace. I wish Dr. WarrpD would in-
form ynur lord«hi|iS| wbellierhe bus lately seen
Sr. Cullier.

Dr. Warren. I tisileil Dr. Collier yesterday,
about eight o'clock in lb« aderaooD, and tbuuil
lilm tery ill under a variely of complain t-i, par-
ticularly a Si. Antboay'a Bre in hii head and
face, by which one iiidt: of it wav so much
Bwelled, Ihnt the eye was almost closed up.
It ap|ienred lome that he could not venture out
vilbout great hazard.

Atlarney-Generol. I beg Dr. Warren Trr-
be asked, whether he thinks Dr. ViM.
condition such, that he could not stir out ^<
out danger? — Dr. Warren. 1 said t<-,

Allornty General. What sort of t!.'
do you mean, when you speak of the li
under which be would come out? — Dr. II '
1 think ibat be is in danger. I cuiuki
thai it would certainly kill him, but il »-iii
very imprudent in me to ailtise him i'<
ouL [Ordered to will. <:i

Hr. Mantjidd. Thewitnew nowinlin '
he produced (o your lortUhips is Mr. I.nr
The purpose for which he ia to be priolri' '
to tell your lordships, that he saw Ur. <
frequently with the lady at the Imr ,ii
late duke of KIngvlon, during t]<<
Ecclesiailical Court; that ho Iim- :.
Dr. Collier awure bolb the \^v.
duke uf Kingston andlbe lady >') ^ ' "
that ■eolencc in the Spiritual C»iiii, in.x i
■were perfectly free to marry, and might i" — — _^^
any one they pleased.

Mr, Larockc bwi

Mr. Laroehe. My lonls,
until wilhiu these few minui
be necessary to call me. 1 <
recollect lolbe best of my kni
eot some memorandums in <i
hope I may be at liberty to rt

Lord High Steward. Are i
writing? — Laroehe. A copy
been in my possession erer si'

A Lord. Copied by bii iteMre f-
Yes, from my own notes,* and Id im
and has been in my own custody
Eiamined by Mr. M^'^:

Did you know the late tli 1
■nd On yoD know Dr. Colli-
knew his grace the duke of >>
Collier.

Verpyoii [iiT-f . jtI If rMDib*, ThoBBaa lord
heliir aniliiK- '.'^b.nl.ttinfielcl, Horatio lord
iVaa Or. i:.,ili-. .., ud H/de, Vere lord Vere,
■r ?~-llr ■.-. ■ — », /adrew lord Archer,

). lu, Milthew lord For-

I li)fd Broee, Edward

rit EilgecuRibe, Htnry
I .irib. Francis lord Go-

King, Robert lord Itum-
<i:l.tlelnn, Edmund Invd
. I<,rd Cathrart, William
<!il CKIton, Uenry lord
'Ailliughby of Parhaosy
:!-l>by deBroke.GeMa
. .rilcv, George lord Abtf
...; Le Despencer, GuilQ

1 1 ^^^HuiUaynard, Thomas'
":- ^^6»owt»iscountTorrlnpton, Pfl
till*' ^^^^ llolingbroke and St, Jolil
V ' ~ .^^ gtamwnt, Thomas ri^cMa

tiewge viscount TdwdsIism
^-wiil Siy and Sele, Anthony J<

.,1 MuoHgue, Edward -' "

t^uihv, upon my honour.

af AillsUruugh, John earl SM

nrl of Radnor, Robert eail <

-. Unify carl Fauoonberg, H<

(Wn, niilip earl of Ilardwii

,.«iI1e earl Temple, William

JtfhD ea>l of UuckiDgbamtl

fVLMke, WilliaiBearlof Harri

j^ ,ul of tCIIiugham. John cai

n, Joha earl Waldegtave, J

riiomai earl of Macclifsfield, Pbil

.-|ie. lltMry earl of Sussex, Henen

. ,«fai4, ChaHes earl of Tankervill

„| iif Siratfurd. Edward earl of <

^ fcH Mnnimer, Niel esrl of Roseb«<i
^ Bnme earl of Marclir-onl, John eafl ^
^^^•e, Geoit;e carl of Dathousie. Jd
_ J t«»doun, Johuearl of Galloway. Jam
^ ■ rf iktreoru, George James eati of Cho
^^rr, George Busay earl ol* Jer*«
_ ^^ 'William earl of Coventry, Will^-^
t-rt tarl of RochfonI, Richard Lumlev
f«^r«(igh, Other enrl of Pl^nio
'i^rf***^ <*' Gaiuaborotigh, Frederick in
Z2lMl of Berkeley, Henry earl of Dm
J^Fi*derick earl of Carlisle, William Am
jj,^ till of Esaex, John earl of SaudwioltJ
^[fjBe rtrl of Thanet, George earl of Win-
„ta«aawl Nollinghani, George Harry eari
< •tMB^Fd, Basil earl of Denbigh, Henrv es''
'(iulMk *"^ Berkshire, Francis earl nf Hm
"L^, Tidward eatl of Derby . Gnilly, u—

* SeeDoeViPerkiiUiSl

-.koonnr,

fVilliam e«rl Talbol, lord steward of t
:iou*kDld. Guilty, upon my honour.
Chs'l'* ^^IB"" marquis of Rociiin
_ • — ' ', H,i>llT. upon ""y honour.
Aj^-'-'^ I Hiich d"''e "*■ North umberlend.
_m, my honour.
lU«y fie'i's Pelhain duke of Nevn

OS]

f^r Bigamy.

Bmkf «RMwoodji but not inlealioDally, apon
Bj boiMHir.*

Fnaeia duke of Briilg^ewater, John .Frede-
rick d«ike of Dorset, James duke of Cbando§,
Geoffge duke of Manchester, William Henry
Cavcodisb duke of Portland, Alexander duke
of Gordon, George duke of Marlborough, Wil-
lian duke of Devonshire, Harry duke of Bol-
ton, George duke of St. Albans, Henry duke
of Beaufort, Augustus Henry duke of Grafton,
Cbfirles duke of Richmond. Guilty, upon iny
honour.

William earl of Dartmouth, lord privy seal.
Guiky, upon my honoiir.

Granville Leveson earl Gower, lord president
ff the council. Guilty, upon my honour.

His royal highness Henry Frederick duke of
Csmberland and Strathern. Guilty, upon my
iMMwr.

Then the Lord High Steward, standing an-
eovered at the chair, laying his hand upon his
breast, said,

I. H, S. Mv lords, I am of opinion that the
priioner is Guilty, upon my honour.

L H, S. My lords, all your lordships have
ftiod the prisoner Guilty of the felony whereof
iht stands indicted, one lord only excepted ;
who Slid, that she was guilty — * erroneously,
hrt not intentionally :' is it your lordships' plea-
MM that she should be called in and acquaint-
d therewith ? — Lords. Ay, ay.

Proclamation was then made for the deputy-
odier of the black rod to bring her grace the
Ivehess of Kingston to the bar ; which was
^ute. Afterwards proclamation was made for
lilaiGe, ns usual.

L, H. S, Madam, the lords have considered
Ibe charge and evidence brought against vou,
•ad have likewise considered of every thing
wfaieb you have alleged in your defence ; and,
ipso the whole matter, their lordships have
nsod you guilty of the felony whereof you
Mud indicted. What have you to allege
ifiinsl judgment being pronounced upon you?

The duchess of Kingston delivered a pa|[ier,
wherein her grace prayed the benefit of the
peerage according to the statutes.

Then bis grace the Lord High Steward ask*
cd the counsel for the prosecution, whether
thty bad any objection to the duchess's cfaiim
cf the benefit of the peerage ?

Ait, Gen, My lords, not expecting to be call-

td npon, 1 did not attend to the form of words

■led by the primer. However, I understand,

Ihit she claims the benefit of the statutes ; not

•Mifining herself, I suppose, in the form of her

chum, to one statute ; bnt alleging herself to

W a peereAS, claims the benefit of both ; mean-

isg to insist, that the act, which exempts women

friin judgment of death, is to be construed with

irferenee to that, which allows clergy to lords

sf parliameot.

« Sen vnl. 19, p. 669.
TOL. XX,

A. D. 1778. [(M

M^ lords, upon this claim I soppooe tw^
questions will naturally arise ; one, whether it
be competent in her situation to claim that
judgment, or an analogous ju«igment to that,
which would have been pronbiinceil upon a lord
in parliament convicted of the like ofience;
the other, what would be the extent, or possible
extent of that judgment upon a lord of parlia-
ment, so convicted.

My lords, I speak to both these questions ;
because.I conceive, that, without aggravating
the ofience, I may fairly assume, that all the
qualifications, which were put upon it, have
been fullv and effectually proved ; the mar-
riage; the issue of that marriage; the fraud
upon public justice ; the additional aggrava*
tion, that it was no less a surprize u|M)n the
duke of Kingston, than a scandal to the rest of
the world.

This being the true state of the case, it must
occur to every noble lord's mind, that the lawa
of this country would be considerably disgraced,
if it were possible to state to such a court sucb
a crime, attended with all its circumstances and
qnahfioations, as an object of perfect impunity.

In this point of view, I shall take it for cer-
tain, that, if I can establish in the judgment
of your lordships my own firm persunsioui
that this claim to avoid judgment of death
cannot be made under the statute of Edward
6, or with any reference to it, but must resort
to the act of William and Mary, I shall thea
have laid before your lordships that opportu-
nity, which justice, undoubtedly, will be de-
sirous to lay hold on, of pronouncing a judg-
ment somewhat more adequate to the ofience ;
though perhaps, in the opinion of many, far
enough from edequate. Or, if, contrary to my
present thoughts, she may claim any benefit
from the first statute, yet the act of £iizal>eth
will enable your lordships to make some slight
satisfaction to the law for so enormous a viola-
tion of it.

My lords, this 1 take to be a clear proposi-
tion, that, from the beginning of time to this
hour, clergy was never demandable by women.
By the ancient law of the land this privilege
was so fiavonrably used, that reading was suffi-
cient proof of clergy : and all were taken to
be clerks, who by under do indispensable im*
pediment to receive orders. This rule is laid
down in all the books. Several statutes, nay
the Provincial Constitution of 15251, adopt the
distinction thus made between persons in holy
orders, and other clerks, or lay clerks. But
women were under this indispensable impedi-
ment. They might be professed, and become
religious ; but even a nun could not claim this
privilege. This is proved by the same books :
and lord Hale puts the case of manslaughter,
where the husband shall have his clergy, and
the wife no privilege. The statutes, whicb
exempt women from judgment of death, ex-
pressly recite, that they were not entitled to cler-
gy ; and distinctly provide a new and drflerent
species of exemption.

Having reminded your kirdalMpi of tkie

ss

627]

16 GEORGE III.

Trial of the Ducheu of Kingston,

\m

dear rale in the lavr, I shall take ap the sta-
tutes, which are material to this argument, in
tlieir order of time. This will lead me tu
consider; first, what is the true nature aud ex-
tent of that exemption from capital punish-
ment, which his clergy gives to a lord of par-
liament, by the first of Edward the 6th, and
the 18th of Elizabeth ; secondly, whether the
Slst of James, or the third and fourth of Wil-
liam and Mary, contain any reference to those
other laws.

lu order to explain the true effect of the sta-
tute of Edward the 6th, I shall consider the
situation in whrch the peerage stood with re-
spect to clergy at the time of making it. I say,
the situation of the peerage as to clergy ; be-
cause it will not be doubted, 1 suppose, that
they were entitled to this Taluable privilege in
common with others. So peculiar and cruel
•■distinction could not have remained in perfect
•tleuce for such a number of years. Nor, if
they had been entitled to claim it upon peculiar
terms, would those ha?e been unnoticed. Be-
sides, if there be no evidence of such a privi-
lege at any time, how can it be claimed now ?

Although the allowance of clergy was setting
aside the conviction as to the person of the of-
fender, his goods remained forfeit, and the
king seized his lands under the record. By the
4th of Hen. 7; c. 13, it was to be allowed but
once; and the convict was to be branded in
open court, before the judge. And in the very
vear of the statute now ander consideration, a
loBg list of offences was deprived of it ; and,
even where it remained, slavery, with an iron
Toke, was inflicted on the convict, as a vaga-
bond.

It was thought too much to leave the lords
of parliament exposed to those cruel and shame •
ful stigmata ; especially in cases, where they
might make purgation and so be restored to
the exercise of their high functions. Nay, in
such instances even forfeiture was thought too
much. It was also conceived by their lord-
ahips, that, in their case, capital punishment
had extended too far. It was also thought
proper to deliver a lord of parliament from the
necessity of proving his title to clergy in the
ordinary way. Therefore by the 1 £. 6, c.
12, § 14, it was enacted, ** That in ail and
every case and cases, where any of the king's
majesty's subjects shall and may, upon his
prayer, have the privilege of clergy, as a clerk
convict, that may make purgation ; in all those
cases and every of them, and also in all and
every case and cases of felony, wherein the
privilege and benefit of clersry is restrained,
excepted, or taken away by this statute or act
(wilful murder and poisoning uf malice pre-
.penseil only excepted) the lord and lords of the
parliament, and peer and peers of the realm,
having place and voice in parliament, d|>all, by
irirtue of this present act, of commoiT grace,
upon his or their request or prayer, alMging
that he is a lord or peer of this realm, and claim-
ing the benefit of this act, though he cannot
Mad, without any barniiig in the hand, loao of

i

inheritance, or corruption of his blood, be ad-
judged, deemed, taken, and used, for the firrt
time only, to all intents, constructions, and pur-
poses, as a clerk convict, and shall be io casa
of a clerk convict, which may make pur^tion,
without any further or otiter benefit or privilege
of clergy to any such lord or peer from thence-
forth at any time aller for any cause to be al-
lowed, adjudged, or admitted ; any law, otatatei
usage, custom, or any other thing to the con-
trary in any wise notwithstanding.** More
shortly thus — At present, men prove their der-
gy by reading ; aud must forfeit, and be brand*
ed, before it may be obtained. For the futorc^
all cases, where any of the king's subjects my
now obtain privilege, as a clerk convict,who may
make purgation, a lord of parliament, without
reading, burning or forfeiture, shall be adjwto'
ed and used as a clerk convict, who may mifci
purgation. All that was harsh in the law,
was taken off the peerage: all that was left
was privilege. The trial by the bishop and bif
clerks (which differed from trial by peers, M
more in the case of a lord than of a commoDer)
was not substituted in the place of legal trill,
but superadded lo it, for his advantage. Tbii
was the only way, which had then beeo
thought of, in any case, to avoid judgmtotif
death. The reason of the thing, and the a-
press letter of the statute unite to prove, tht^
till the eighteenth of Elizabeth, a lord of pir-
liament, convicted of a clergyable crime, uA
being capable of purgation, must have bcca ■
deemed and treated as a clerk convict, wbo
might make puruation, and delivered over !•
the ordinary for that purpose.

The learned and laliorious Staunford, oor
ablest writer, at least on this branch of the bw,
treats it as a thing without question. Fol. 190.
*' A lord shall have privilege of clergy, where
a common person shall not have it. He ooKbt
to make purgation ; and if so, he must beoe-
hferetl to the ordinary, to be kept, till he bii
made his purgation. If he confesses, abjures,
oris outlawed, he canuot have the benefit sf
this statute; because he cannot make purga-
tion.*' Staunford flourished wlitn this stalutt
was made ; wrote a few years after; and difd
before the eighteenth of Elizabeth. His there-
fore is a contemporary exposition of it, uoen-
tangled with the casual phrase of any subse-
quent act.

Hale, in his second volume, fol. 376, wbeff
he seems to differ from Staunford, as to the ex^
tent of the statute, agrees with him as to tbf
nature of the privilege ; which he calls Tbs
Clergy of Noblemen. At one time, judgci
would not deliver clerks to the ordinary, wbo
had become incapable uf purgation, by confes-
sion or othcTwise. The church alleged, that
nothing done before an unlawful judge wassuf-
ficient to suKtain their process, or sentencti
Whereupon the Articuli CUri [See voL 9, p*
131], provided, that all clerks shall be delivered
to their ordinaries. But they were delivered, ii
the instances mentioned by Staunford, oAifat
purgatiQw/adtndd» Now tlie ctae pot ia tki

SS9]

for Bigamy.

A. D. 1776.

[6S0

tetote M, where any man may have the pri-
riUve of clergy, as a clerk convict that may
nake pur|(ation. And a lord of parliament, be-
Off ID ibeaame predicament, was put in the case
Aclerk convict that may make piirijfation,with-
Nit reading' or nnder{jroiii{r the pains whicii at-
onded a commoner under those circumstances.
teaonford therefore thought, that these ex-
mptions did not reach to tiie case, where, be-
bre the statute* there could be no purgation
or any man. And the opinion was so proba-
4e, at least, that a very en»inent lawyer, of on-
sceptioaable character, in the time of the great
cbellioo, actually burnt a peer, who confessed.
9ale doubts; especially at this day, when de-
ivery to the ordinary and purgation are both
jdcen away by the eighteenth of Elizabeth.
It is not obvious what difference that makes.
'* I think,*' says he, ** it was never meant, that
a peer of tlie realm should be pot to read, or
bt burnt, where a common person should be
pot to bis clergy.'' Both agiee, that the peer
iboald have had bis clergy, and have been de-
Evcredto the ordinary, and have made purga-
tiiMi, exempt from the concomitant penalties;
IB some cases, savs Staunford ; in all, says
Hale. But even Hale makes no doubt of peers
koag liable to imprisonment.
^ lo the trial of lord Warwick, the chief jus-
tice lays it down, that the statute of Edward 6
Qttmpted peers from the penahies of burning,
iod re|)ealed the statute of Henry 7, as to so
BDcb. Then a peer was liable to burning be-
ftre; and by the act of Henry 7, which, in
terns, puts it upon persons admitted to their
dergy. But how could it be seriously ar-
goed, that a thing so anxiously repealed never
oiited ? I have consulted oti this occasion as
nioy books as I could think of referring to ;
lad I do not recollect one, which supposes a
line when a peer had not the benefit of his

lotbing, it must be confessed, conid be
■ore unprincipled, and incongruous, than to
uffinr the truth or justice of a conviction at
OMiUDon law to be questioned in the Ecclesias-
tical Court. But the church had not then lost
ill bold upon men's minds ; nor would, pro-
bUy, for some ages, but for its own glaring
Biscouduct.

The trial called purgation, as it was had in
Ibe bishop's court, was a ridiculous mockery
pT justice; or became serious, only by the per-
jsry which it produced. It was therefore abo-
liihed. But simply to abolish it would also
bave cut off that imprisonment, which followed

I conviction in the bishop's court, and which
fit should have beea presumed) would always
bUow actual guilt. To remedy which, it was
tbooght fit to give the court authority to pu-
Uth by imprisonment for any time less than a
rear. This was proper in alt cases ; but par-
icolarly so in the cases of peers, and persons
B holy orders, who were not liable to burning

II the band. It was therefore enacted by the
Uteentb of Elizabeth, c. 7, s. 2, and 3,
'That efery pcnon and persons, which at

any time, aAer this present session of parlia-
ment, shall be admitted and allowed to have
the benefit or privile{;e of his or their clergy,
shall not thereupon be delivered to the ordi-
nary, as hath (»e6U accustomed ; but, after
such clergy allowed, and homing in the hand
according to the statute in that behalf provided,
shall forthwith be enlarged, and delivered out
of prison, by the justices, before w hom such
clergy shall be granted, that cause uotwith-
standmg.

*' Provided, nevertheless, nnd be it also en-
acted, that the justices, before whom such al-
lowance of clergy shall be had, shall and may,
for the further oorrection of such persons, to
whom such clergy shall be allowed, ^leiaia
and keep them in prison, for such convenient
time, aa the same justices in their discretion
shall think convenient ; so as the same do not
exceed one year's imprisonment ; any law or
usage, heretofore had or used to the contrary
notwithstanding."

The effect of these words, * shall forthwith ha
enlarged and delivered out of prison, that causft
notwithstanding,' is to give the person w\ en-
larged exactly the same state and condition
which he would have obtained, under the for-
mer dispensation of law, by going through the
process of purgation, and so being delivered
from the offence. This part of the act carries
a great effect upon the construction of the
whole. In conversation, I have heard the
words, < after burning in the hand,' supposed to
be the phrase, upon which some doubt might
turn» whether peers are included in the act.
But, in the construction of such a statute, it ia
not enough to fiud a phrase, upon which tome
doubt might turu. It would be fitter for those
who conceive the doubt, to proceed at least ona
step further ; and state, to what extent their
doubt goes. Is it doubted, whether purgation
be taken away in the case of a peer, and the
peer be restored to his law without it ? Will
any gentleman argue, that, at this day, a peer
convicted of a clergyable crime, shall not be
forthwith enlarged; hut must be delivere<l to
the ordinary to make his purgation? Thia
point, I believe, never has, nor ever will be ar-
gued. If he is not to undergo purgation, quQ
jure is he exempt? Does any other statute
exennpt a peer from his purgation, ordiscliarge
him from his attainder, but this general statute
of the eighteenth of Elizabeth ; which, in its
large phrase, comprehen<ls every body ? I pro-
test 1 know of none. Or, does this statute
exempt any, but those, who shall be thereafter
admitted to clergy ? The words, *• afler burning
in the hand,' do not make an essential or necea*
sary article in the description of the persons to
be discharged ; nor create any term, or condi-
tion, upon which the discharge is to obtain.
The description of the persons to be discban^ed
is absolfed in these words, * all persons who
shall be allowed the benefit of their clergy.'
They are to be discharged absolutely. But
when? and in what manner? Why, afler the
allowaDoe of dergyi and buraiojf id the banil

631]

16 GEORGE III.

Trial of the Duckest ofh'ingslor

[6*1

whl>-h U to say, in
.■tilled hy t1ieilBtaie;or wbicli llie
Gisp "fa (leer i* nor.mi'.

Tlif H liiilp consp'iiiiriiKc M no more llian tlii<<,
that, in a case rlrciiiiiilHnued like ihe prmnt,
wliere ilie Imnour of the law and tlic purily of
ntjimn'™ ric[oire some eximpio to be rowle,
your liirifilii|« may rnlloii' ihe bent of your
ttitcrcTinn, by reiioriinij lo Ihr lait clause in
the IBIli of'Eliznbeth. This I sny, upon a
•iipposliinii, ibat Bume peer stood cooviciFil of
the like oRV-nce, willi iimilar «B-^rav«lioii ; or
that, upon the i%st of the ii^iiuient, il ivlll lip
p'luiihte lo gite any woman the benefii of
Kny statute, pan raluine, as peers hare Ihe he-
nefli nf clerfry, uiiiirr itie Rrst of Edward 6.
But I lio|ie Ici prnie soon, that it is Impossible
to cutiKtrne ihe aiiliteqiient atalute iu that man-
ner, CiinscqiiPoily there will he due to ihlt
crime a »ery dilTtreut sort of punish Dietit than
that which I have alluded to.

Il will hnrdly be said, thai these statutes re-
hle to uomeii of bdv condition. The eii|ires-
■ion excludes iheai dislinclly enough. If that
had breo innre general, the subject matter ex-
clude Ihem ahMdutely. They are ou more
clerks, than lords of parliament. Tliey nerer
underwent puri^lirm ; nor were delicered In
the ordinary ; they were therefore inc«|iBbls of
receiting these ptiriteges ; fnf these acts were
merely to rcEUlale an old t\f,\\l, not to gite a
Bulh the Elalulea, nhicli gate ihem

their eiempiion. ri

Whate 1 e*en 8«<
wherein any condi
cixenipl, hut by virt
presi-Mlly. Ii rem
whether the exet
law, bus aoy re I
ward e.

ThetirBtElBiu
capita] punisUiuf
twenty'Iint of Ji

general prn]>oai'
ere not entitled lo clergy.
n any statute, case, or book,
ion of women is supposed
leof the laws 1 shall stale
lins then lo be eonsidered,
iptjon provided by ihnae
ieoce to the statute of Ed-

e, which exein])tB wo
nt in any case of felony is me
, . raes 1, c. 6, which runs thus:

" Whereas, by Ihe laws of this realm, Ihe
benrflt of clergy is not allowed to women con-
TiWed of fehiny ; hy reason whereof many
women do suffer death I'or small causes ; be il
enaeteU by the authority of this present par-
liameitt. that any wnman, being lawfully con-
victed by her tiiinfeSBiun, or hy the venlicl of
twelve men, of, or for Ihe felonious taking of
any money, goods, or chattels above Ihe value
cf Iwelve-jience, and under the value of ten
ahillings ; or as acressary to any such offence ;
Ibe said offence being no burglary, nor robbery
in or near Ibe highway, nor the fFlonious taking
of any money, gooJs, or cliatteln, from the
liersoii of any man or womau orivily, without
his or Ibeir bnuHledge, hut only such an of-
fence as in the like case a man might have hla
clergy, shall, lor the first offence be branded,
and marked inihr hand, upon the biawn of the
left thumb, with a hot burning iroo, having ■
TOman T upon the ^aiil iron ; ihe said mark to
be made by the gaoler openly, in the Court,
before (be judge; and also lo be further pu-

nished by imprisonment, whipping, stocking,
or seniling to the house of correction, in such
tort, manner, and form, and for so loug lime
(nnt exceeding the space of one whole year) ■■
the juilge, judges, or other justice*, belore
whom she shall be so convicted, or which ahall
have authority in the cause, shall, in iheir dia-
cretion, think meet according to the quality of
the oflence. end then to be delivered out tf
prison for that offence ; any law, cusMn
usage to the cunirary ant with standing,"

This statute at least excludes all colon
reference to the first of Edward 6.
woman convicted nf grand larceny (if ft be ti
n Bimple f-lony, clerKjablein a man) ahalH
burnt. Mbe was not put to demand bmiefll;
Ihe statntt: ; lo pray her clergy would bfl
been too absurd ; but, Ihe larceny being sIM
in the record lo lie committed by a mouti
judgment was forthwilli entered of bumil
and so forth. The statute is, moreover, e
fined lo such larcenies, where, in Ihe likeei
a man might have his cletirT. 1 take oaf
of these words at present, only for Ihe safci
remarking that, in this statute, at lean, tl
must relate lo the quality of Ihe oAace, not
the condition of the offender.

My lords, the only statute, of which the pi
Booer can claim the beneHis against judgm
nf (tealh, is ibe third aud fuunh of fVilli
and Marv, c. 9, s. 6, whichruns in these wor
" And whereas, by the laws of this real
women convicted of felony, tor aleallD^ :
goods and chat tela of the value iif ten shillr
and upwards, and for oilier felonies, wh<
man is to hate the benefit nfhis clet^y,BK
suffer death ; be il therefore enacted anrf I
•Inred by Ihe aullioriiy aforeftaid, that, w
a man, being convicted uf nny felony, for w
he may demand the benefit of his clergy, I
woman be convicted for the samr or fiKe i
fence, U|i"ii herpiajer lu have Ibe lieoeAl
this slHlule, judgment of death shall out'
given against her upon such comiciion;
execution awarded upon any outlawry for si
offence ; but slinll suffer Ihe same fiunixhin.
as a man should suffer th>it baa the benefit
bis clergy allowed him in the like oase ; tl
is to say, shall be burnt in ihe band by I
gaoler, in open eiiurl, and he further kept
prison for such lime as the juslieea in ih
discretion shall think fii, so as the same do i
exceed one year's imprisonment." UlM
ihis act, to avoid judgment uf death, the p
■onermuit pray the benelit of this statute.

I collect fmm conversa'ion, perhaps too H
Id be referred to, thit the argument will he h
thus. A woman convicted of a felony wbl
HOuld be clergyable io a raao, shall suffer ■
same punuhmenl as a man nuuld iu the H
CBnp, tliU is, as ■ roan of the same conditli
with herself: but a peer would suffer nu p|
uishmenl : therefore a woman of that condilh
shall sulfer none.

The words, ' in the like case,' mnsl mean tli
same here, as in ibe tweoty-flrsi of .lames, 'cd
vicied of the like ofTeoce,' And the wotda''

SS3]

SiiT Bigamy.

tlie nine condition' must be wholly superadded,
if Ibey are admitted at all. But it is imfiossl-
^e to conceife, that, if the legislature had
aicaat to create m important a distinction be-
tween difff>rent orders of women, it would have
Med BO words for that purpose. Nor, indeed,
CM tucb a distinction be so created by any ope-
ritioo of law.

If, in favour of the prisoner, the slightest de-
cree of ptmishment, which any man can suffer
n the like case, is to be intended, every woman
poold claim exemption from burning, because
ttferior ecclesiastics are not burnt ; and from
brfirittnre, because lords of parliament are
idtker bornt nor forfeit. But thia absurd con-
Ametion happens to be thrown out by the act
Ifdf, which appoints the punishment, it means,
o be hamiog and imprisonment. The statofe
kerefbre will not suffer it to be understood,
bat any wonoan convicted of any felony, shall
ailler bo other punishment, than those who, it
■ BOW contended, are to Huffer no punishment
.tall.

Upon these grounds I submit to your lord-
liipa, that the judgment to be pronounced upon
Tery woman, of whatever quality or denomi-
lation, is that, which is prescribed by the third'
md fourth of William and Mary ; and that
here is no ground or warrant of law to insist,
hat a peeress can avoid judgment of death
ipoB any other terms.

My lords, the whole question is upon bum-
Dg. The imprisonment is the same either
Way. Now, if there be prudence or propriety
of any sort in estabtishine such an exemption
for peeresses, let that prudence or propriety be
Haled, where by the constitution of this coon-
try such an application ought to be made, to
pirfisment. If the parliament should think fit
to create new priTile^^es, or add new distinc-
tioot to any order of men, or women, they
are competent to do it. But it would be as-
loming too much for any court of justice.
Your lordships sit here merely as a court of
jirtice, not as a house of legishiture. To do
that by forced and arbitrary interpretation of
bar, which ought only to be done by act of
kfislature, is too much enhancing the preroga-
tive of the judge; and too much confounding
tbose authorities, which onght to have plainer
Barks and broader limits set between them.

Mr. Wallace. My lords, I did not suppose
it would have fallen to my share to give your
Isrdships any trouble upon this subject; and
fbrefore I have not very lately lookeil into the
ilatDtefl which have been mentioned j but I
^ state to your lordships in general, what I
^Cfstand to be the privilege of peeresses at
tkiiday.

By the 20th Hen. 0, chap. 9, to obviate
^m» which had arisen upon Magna Cherta,
lyreasea are put upon a footing with peers
^respect to trial and punishment; and by ao
*|iiitable construction, peeresses by titles since
^NMad, ta marcbioDesaei and f iscoanteaaca^
^widiia tbe act

A. D. 177& t6S*

At the time of passing the act of Edward tbe
6tb, the lords of parliament are meniioned,
which at that time of day compreliemied the
whole peerage. In this situation were peers at
the time of paRsing the stMtute of the J8th of
Elisabeth, which statute cannot relate to tliem.
Every person, who is to be admitted or allowed
to have the benefit or privilege of clergy,
should not after burning in the band be deli-
vered to the ordinary, us has been customary,
but may be detained in prison. This provisiun
dearly refers to the situaiion of commoners,
and not of peers : it refers to those who were
at the time of making the act liable ; whereat
peers were not in that condition ; they were
not to pray their clergy, but the benefit of that
act, and to be delivered out without burning in
tbe hand. Tbe direction given by the act is to
justices: an expression never appli<-d, I be*
lieve, in any act lo the lords in par liameut sit-
ting in their judicial capacity as a criminal
court : tbe justices are to keep such persons in
prison after tbey are burnt in the liaml ; which
is a demonstration that inferior courts are al-
luded to; and it is nnder this statute iiiifirisou-
ment is inflicted opon persons intitled to their
clei^.

At the time of passing the statute of the 9d.
and 4th of William and Mary, peers were
exempt from burning in the hand and impri-
sonment in clergyable cases, which coiuinonera
were subject to. By this law women are put
on the same footing with men, and the courts
before whom they are tried are to inflict the
same punishment as they are authorize<t to do
upon men. These provisions make it, in my
apprehension, extremely clear, that the peer-
esses were intended to be placed in tbe same
comlition with peers, as they were by Magna
Charta, explained by the statute of Edward the
6th. Would it not be the most harHJi and cruel
interpretation, if the act was even donbtful, to
subject a peeress to a punishment for tbe same
crime which her husband is exenqit from ? The
conditions of persons create distinctions in the
constniction of taws; but the attempt now
made is to confonnd all ranks, and by sup]K>8ed
literal interpretation to involve one of your lord-
ships* own situation in the punishment, which
the legislature has been so anxious to extricate
yon from. -

IVfr. Mansfield, It is not till this moment,
that I had any apprehension myself, that any
question of this sort would be agitated before
your lordships ; and therefore I can only S|>eak
of the several statutes referred to from my ge*
nerai memory of them ; but I apprehend that
the construction of these statutes will not, can-
not be inch as is now contended for on tlie part
of the prosecutor. Tbe object of the construc-
tion wished by the prosecutor is this : that the
laws of this coiratry are to make a difference
between one sex and the other ; that they are
now at this time of day to be ao determined as
to biflfot a more aevere, a more cruel punish-
ment open a woman than on a man, though

|^5J 16 GEORGE III. Trial qf ihe Duckesi nf Kingston, [63G

! ofTence commlllod be the Mme. Noir, - ffiTing llie l>eDelit of ckrgy to wooieo, I sbould
t aMcli a coiMlroctian your loril>bi|ii would neTcr i Ihink il Jmpossliile lo say. iW pet reion cun-
I •ufTer, nor any r.ourl at justice iii IhU coonlry | vicleil ufa clereyabk ofTptire were not lo htve

Mrily requires it: and takioij the sereral si
I totes together reUliog lo this sulijecl, I apprC'
\ ^Dd yoiir lordilii)]! will be of opinion, ibat I

Ibese Hlaliiles ilo nut only not require, but tbai ,

niy lurd«, iribere be my rule arconstructioa
1 tbe law, wliich \i, intliipuiable, tiir eTpouud-

ig Gtalulet, il is this ; that slatutrs, ai we saj,
1 pari vtutcrii, relatiug 10 one subiect,

\ tbey exclude, such absurdity, such inhumanily. i he coosidEred as one law, lakeo and inter|iri>ie4

igeihe

lluowjag' ligbl one upon the other,
or conHlruclion is better eatablriiheit,
that rule of cnnstruclioD here. Tak%
general law for the trial of peercMeS)

My lords, the
must be rouDileil,

flOth of king Henry ibe 6th, which,
1 recollect from niy memory, is ch.

firel prorides expresEly, though I beliere it \f , and the juilgmeot of peeresses Id llie ■
'cODKiilered only as adeclarstion of the cammon manner as of peels ; then take the general
hw. hut pretidee, that peeresses should be ! giving Ihi ' "- '- ■ - -

trieil, and, if I Tccnllecl the words riglilly,
thnuid not only be iricil, but should he jadeed
in tbe Mme tnanuer as peers: Hndremember-
tng nhsl has hapnetied upon thai statute, I
niiisl pul your lordships in mind, that such has
been the henlgnily of the conntructirui upon it,
tfaiii ibnugh only three ranks of peeresses are
■Bineii, il has been clearly held in cinsiruction
to extend lo all. The three that are mentioned,
.] think, are ducheatcs, cnunlesses, and bsrou'
Mum. The conntruclion is, that it extends to
aiBrt'hi->ups''ea aud vitcouoleisei, because ibey
are iiilitte<l in the tpiril and meania^ of the law
lo ihe sanip privitrge which is given to the
•titer ladies by iisine. The clear result and
effeel of ibis statute I*, lo say In general terrna,
U»l women 'of Ibnt high rank should be tried
pjid should be judged In ihe same manner as
men. The terms used in the act are general.
Whoever reads thul law. will be astonished to
hear any man contending, that in Imposing
judgment u|iiid a peeres*. your lordships ire
to he guided by a diflereDl rule from tbal which
you would follow if yim were passing judg.
Blent upon a peer. The uest slaluie to be
tianiidered after thi«, as a general slalute upon
the subject, is thai of the Sd and 4lh uf klng^
William the third. ]iid that alalule mean.—
vere tbe legialators lliai made il so forgell'iil of
what was due to hunianily. and to themselves
•ad thflr own characters, as lo mean, — that a
4islinclioo ID punishment should prevail be*

inly not ;
if that statute is,
Out women convicted of otfences iulilled lo the
<1lFDe6l of clergy should suffer in the same
•Banner as men would suffer convicted uf Ihe
fkme ofleuces.

My lords, no mao, who can read that sla-

Ste, and reason op'in it, can help concluding
at it was the object of that law to say, that
flhere women were convicted i>l clergyable of-
frnces, tbey should be in as gooil a situation as
BKii who were convicted of the like.

My lords, taking these two slalules of ibe
SOtb of Henry the sixth providing fur the trial
and judgment of peeresses, and tbe general
tUtnte of the 3d and ith of WJlliain the third

'fit of clergy to women id ibaj
same manner as to men ; and who will not at
Ihatlhal rule of construction does not necesaariljTi'
lend lo put both, upon the rank of men an4-
wom'en, in tbe same condition, when convicleit.
uf Ihe same B|.ecies of offence? But what u%
the particular acts of [larliamenl, which bat^
beea referred to as requiting a differeni cod-
fttruclion? By the first of Edward tbesixlli, il
is extremely clear, ihal peers are not to undeiM
the ignominious punii^hmenl of burning^. Tm
elalule ihal follows that of Edward tbe auclh, 11
Ihe Itllb of Elizabeth, ubicb takes twsy lb;
delivery to the ordinary, suUiiiules burning ii
its place, and then gives a power to imuria
Whoever reads that act, will see that it ceh,

nly was confined to cases, where punisbd
' " to be inflicted by justices upon per*,
sons oi an ntditiDry descriplion, nut pctsonc of
■be rank ofpeersi and the staluie Gtiiclly ami
clearly relates only lo persons so having clergy
allowed, as is prescribed by that statute : and if
the imh of Elizabeth ii to have the construe-,
lion which is contended for, I understand it
must have effect also to inflict ibe punishment
of burning upon iieers. Sti much, my lords,
for the stiilute of tbe ISlh of Elizabeth. The
31st of king James was mentioned a
part giving clergy 10 women : the 3d and 4lh
of king William the Uiird is mentioned as i
luding to il. It docs so, but the promiuiis
the 3d and 4ib of king IVilliani tbe third a
general, that is, a general law extendioff lh4|X
benefit of clergy to nimien in all cases. J' "
it is said there, that Ihey shall have tbe H _
puniBhmenl as men ; they are to he in tbe lilc« j
situation as men. Then 1 head goes on
ihal IK to sny, burning and imprisoning.

My lords, what is thefaireonslructioa ortbiij
lawf Why, that women shall be in the samt'
situation as roeu ; and * here men are of sacli
condition, that they would be burnt iu the
hand, that they would b« liable to be impri-
soned, women in Uke manner sliouhl be subject
lo burning in the hand, and should be subject
lo imprisonmcnl: bul no one ever heard, that
Ihe severe pari of a law inBicling a punish-
menl should Ire extended su by const ruci ion,
where it was no I bo expressed. Nowyoumus^^
act against the clear provisloa uf ibat taw,
that woDieD should be in tbe same situttlioit uj

lb
il-

\

tar]

for Bigamy.

A. D. 1776.

[638

^^1

a*

m
m

Tb

fit J

» t

»•:
, r

r*

•Lb

»»4

neo, if yna were to say, that a peeress con-
victed of a clen^yabte oflTence should either
undergo the punisbmentof bumiogf, or the pu-
nishment of imprisimment. No one can say
upon the statote of Edward the sixth, that they
are subject tu either. The object of the statute
of William the third was to make the punish-
ment of such offenders precisely the same with
regard to one sex as the other ; and the true
ipirit and ({Teat object of that law must be di-
rectly acted asrainst, if a peeress was to be put
in a different situation from that of a peer, and to
hate a more severe and cruel punishment inflict-
ed opon her, than would be upon him. These are
the only general observations that occur to me
now in taking the whole scope of the law : 1
therefore submit to your lordships, that the
BsUe lady at the bar is entitled to the benefit of
theie statutes.

Attorney General. My lords, concerning the

riiot which is now depending before the House,
fiurly confess, that, when your lordships first
Cillea upon me to give my reasons why judg-
neotof death should not be suspended upon the
ynjtr of the prisoner, made in the manner in
whicb that prayer was conceived, and upon
theeflects and consequences of alio wing her the
beaefit of the statute in a more regular course,
1 would rather, if 1 might, have been excused
from laying my thoughts before your lordships.
I hid beard a rumour, that men, whose learn-

S' and authority 1 greatly reference, held a
erent opinion. This could not fail to raise
■oeb distrust of my own conclusions, al-
Ihoagh I bad thoroughly considered the sub-
je^ ; and although I never read any proposi-
tioQ with more j^rfect conviction of the truth
•Til, since I learnt to read.

My lords, that idea, the only one 1 have been
tk\t to form, or adopt, is now very much
itrengthened. That cloud, which came over it
froan the nimoured prevalence of contrarr no-
tioD, is very much removed. Because, if there
^DO opinion to the contrary, but what is to be
foQoded on the argument I have heard to-day
frem those who are best able to sustain the con-
tnry opinion, I am perfectly satisfied, it is im-
pswible this should pass as a point of law, or re-
eeifethe sanction ofyour lordships* concurrence.

My lords, what are the arguments ? First,
it it utterly inconceivable, that the law should
pat such difference between the two sexes.
My k>rtls, if the subject was laid by for a mo-
^t, only to make a haniiHome compliment to
I very respectable part of this assembly, which
^^ deserves all the attention it commands, it
B impossible to quarrel with a turn of gallantry.
Bttt, resuming the subject, we are all agreed,
^t the* law did actually put that very diffe-
'vooe between the sexes fur many centuries.
And this uncourtiv statute of Edward the sixth,
pnieeeding upon the law as it found it, did not
(hiak of abolishing the distinction. It was
^le beside the purpose of that act, which did
•stflieao to quality the severity of the criminal
bv w general, much less tu make an equal

distribatioD of it amon^ the sobject* at large.
But, taking the law as it stood, it was found in-
convenient, incompatible, and shocking to rea-
son, that lords of parliament, who were to give
their voices upon the most arduous affairs of a
great empire, should do so under apparent
stigmata and circumstances of open infamy.
I don't rely on the gender of the words, but
on the purpose of the act. Women are ex-
cluded by both. Thev were neither liable to
the stigmata, nor held the high o£Bce whidi
made them intolerable. Therefore bishops,
whom the 38th and 33nd of Henry the 8th had,
at that time, made liable to the whole case of
other clerks convict, were included : wonaen
certainly not The privilege was given, not to
the peerage^ but to the house of parliament, to
be claimed by the members as such. It was
not substantive; but an iograftment on the
right to clergy, which women never bad. In
truth, [ have not heard a hint from the coun-
sel on the other side to question the existence of
tbia difference down to the third and fourth of
William and Mary, upon which act they have
chiefly relied in argument They lay it down,
that peers convict of clergyable crimes are ex-
empt from all punishment, not being within
the 18th of Elizabeth ; that peeresses are to be
tried and judged like peers ; that the 3d and
4th of William and Mary puts women convict
in the same condition as men; and that by
some tacit reference to the former statutety
peeresses convict are not to be punished at all.

I have troubled your lordships already with
my reasons for thinking, that in old time, peers
enioyed the benefit of clergy in common with
other men, and upon the same terms ; that in
the 4th of Henry the 7tb, burning was inflicted
upon them as lay- clerks ; that the statute of
Edward the 6th, in the very moment of exempt-
ing them from the penalties incurred at law by
conviction, adjudges them clerks, and delivers
them for purgation in the bishop's court; that
the statute of Elizabeth delivers all, who shall
thereaHer be admitted to clergy, from purga-
tion, and discharges them, subiect to such cor-
rection by imprisonment for less than a year,
as the Court shall think fit.

It is not denied, that these words, in their
plain and natural sense, embrace the case of
peers. But, in this context, it is supposed they do
not, because the clerks convict are to be dis-
charged after allowance of their clergy, and
after burning in the hand according to the sta-
tute. This last provision, they say, cannot
refer to peers. Nay, one learned gentleman
thouf^ht, that, if it should be construed to in-
clude peers, they must, by force of these
words, be burnt in the band.

1 cannot follow this idea. I have no way of
conceiving, how an act which inflicts, or rather
reserves a penalty, according to the law as it
then stood, can lie interpreted to create a new
penalty ; or, by what chain of reasoning it is
concluded, that where all convicts are to be
discharged upon the allowance of clergy, and
such burning as the law directs, those are not

630]

IS GEORGE m.

Trial (/iJie Ducfmt ofKingiton,

t«»

I

tn k» iltschHfc^ al all, for whom (he l«ir has
nM ilirccled burniDK. tiliiipiiwtliekingihoiilil

(■d»a tl)D bunuDKi it »» lhuu)(ht, in loi '
Vaiianik's tame, thU would be a pvri'ecl Uii
th>ru«. Bimiliie wa« out subaliluteJ in III
yUpc ofpiKi^Uinn : Ihal was a nieru sli|i ' it
cnairurji lo ihe hiitary ; burninir rxiateil bcfura
Um 18tb of Elizabeth, in just iiw tame eKtent
ai afitr. ImgiriaoiimrDi, al tbe discreliun iif
Ibp lemparal jud^ce, wiu ilie siibHiiluie i'm p«r-
iratien; aiid l» ntrnded «k)imsly In all, who
«n> ilitrubHi^ed t'nim purgatiun. Bill il scciiih
lao lata uj ari^w ibis. Was i( iiul rXfin-Baly
Avciikii in the cate uf SpkH and Williami,
wlusn tiniliibiiion wertt lo stay Ibc deprivalina
of a parwiB, »bo bad bcrn cimvicted of man-
«iiiUKbt*T, aud d I unh linked iiiider the IStb of
Kliaahrlli, alihauifli be could ont be burnt ?
" Var wliFu lb« staiule sayi ntUr liinilii!;, il
tin|ioi-la, where l>urahi|f ou|{lit to be ; oibcr-
uiae theitjiule would do iio (fniid lo cliTka. for
Mhoin it was mast inlended." Tbe cate ia
MpiMieil lu Hi'harl. The ttatiile apeabs nui-
»efially of etery body, those who were, and
Ibuae who were not liable lu burning ; and dii-
Cbar;{e8 them all, alier allowance of clenfy,
and biiroing aconrdini; lo law, as il bad stood
before ; that is, ■ te<lden<lo liagula singulis.*

Tbe next ulijeclioD is, that Ihe word 'juaticea'
will Dot api'ly to your lordship», ereo while
•yua are tilling merely in ibe charactera of
iudttei. rb>^reforc a sialule, which is to be
executed by Juaiieea, caunol relate ID a peer,
Wha ig not triable by jiutices.

la it tbm leriouaty cciilendsil, that your
lardahijiB, exercising your juriailiclian in ibe
trial ol a peer, will not do all tbe same acta of
juatice, which ja<l|(ea umU do in Iht trial of a
Oomnaoner? Cpon rending many ucisof par-
liaraeni, your lontahipa will liud, eillier, that
jruu bivenojunidiciionalall,or that you must
•xercite il under the characler and deaomioa-
tion of jiiBlicea. Tbe same objeclion might
haee been made tn lord Feirers'a exoculioij ;•
the aame lu ihe bumiug a |)eer under the tla-
hile of Henry Ihe 7ih. By the word < jiislices'
] undenlaml, in mir law, all tnanner of ofScera
wbn are entrusted wiih ibe od ministration of
juallee. So Spel man dc flues 1 lie word. In hif{h
.•Oliqiiity, tbe name weut lo Ihe greatest subjecl
Ja this country; l«r I take ihe * Juatitiarius
Wiu) AtiKlia' lo ha*e been above tbe 'Seuea.
tflaitu* reijia ' Your lordships therefore will
~1 disdaiD the name ) Ibr ynu ail here in no
_ jber obaracler iban ihni, whicb, by jnsi and
IMtttra) ouDBlruolian. is attributed to the word
jualicei.' Tberetbre, if no better objecliiins
Ml be railed lliau these, I apprehenil tbe
VOrd* ol' the slaiuie suflieiently cuinprixe ibc
This olio was laid duwu io tbe trial

as tbe statute ealli it, to a criminal found
upuu record ; but to rsMore a law, which I
DOW fur mnuy ages heeu understood to be at
end ; and 1 Hatter myaelf, cuusidering the
cuuut wbli;h ihe boolu* all give of il, that |i
ipilioa in at un end.

But I am called upon to look at ibe 90th
11. e, c. 9. This was a mere d^clHralorj tai
ruciting Ihe 39th chapter of Magna Uba*
' nullu* liber homo.' and so furib, noi)
abaurd doubt, whrtber ' buino' include
Kviiders; and declaring, Ihal" hidiea shall
put to aiiawtr, aud judjted btfare such jud|
aud peers" (here by the way jud){e« and pe
are gynonymouii) " as peers should be." I
though, by Magua Charia, peereases wera
be tried by their peetw, as oiher women wi
by theirs, there the privilcije euda. All wc
ujjon ciinviction, lo receive Ihe like judgmi

a

ind, in tbe e

death, the difference was not between I
ranks, but ibe sexes, of tbe convicta. And .
Ihe law undoubtedly oonlinucd, oolwithatant
ing ihis slatule.

But IL was said, that, hy the cquiiy of |l
slikute, mnrcbioneases and Tiacnuntessea tn
iiiduded, though not named. This was lif ^
en II n tens nee to the rule, ihal all ElalulesiafM
Huierid shall be coniirued alike. Thcria
great ;gfuod sense in the rule.
and viscoun leases were clearly
declared ; and ennaequenlly wiibin the reu
ol'declariogit: tlieietiireduiibesMa, counloaM
and harouessea were, by a sort «f syoecbdad
put fur all peeresaee. Ho where n privila)
is sared lo certain deiiominaliuns of people, i
others, who were before wilbiu iheaainepf
e, will he within ihe aaviug, if lhei« I
Doibiiig lu the conteNi to raise a diatlnciU
aifainst ibem ; particularly, if Ibe aaeiag I
only di^vlaratory, aud not a positive exoeptiw
Nay, in a new law, things, equally nilhin ll
11 of it, have been curopriaed la it by om
lion. But Ibis bonlera upon arburan
parliametit scenic the proiierrsi judgeof tb
reusou. If peers, disqualilieil lo «ate, abool
claim tbe benefit of Ibe 1st of Edward the fill
il mijfbl be argued with aoine pluusihility, thi
Ihry are witliiu the reason of Ihe act. Tin
are mi certainly, in every peiul, except that I
voting ; and yet I should think it ton itiucb I
urerluob so material a distinction made by l|i
sliiliite itself. ItuI if women, who wer« m
concerned in any part of the subject matta
mnbe the same claim, it would be making
perfectly new law to include tbera. WIm
then is thepeWfoimaleritf between the act*
Wdtiam and Mary, tbr exempliug wnmrn Iral
capital pnuishiuenl, hnd ilie 311th «f Menr
ibe Sth, whicb h»d nnihin;: ■" lie with pnnisl
iiienl ; or Ibe Isl uf Edward Hie 6lh, wttMl
hud iiiithing to dn wit
I dill propose two
in jiurt Mulcri'a, lb* acts of Jaroea an
Uillinmanil Mniy ; ihe nnly two whioh
(«- iii'On any wuinun any cxeiiipliun
piial piHiiahmciit. I hare nut beanl it

fir higemi/.

■ltd •mod cwnricleil of ttie

in ihe firsi act, iIik jiunisli-

ipedlM iiiuti bate eiiaueil. This

iearilie<f wonts,' iii lliplike case.'

I tun iwMUHVil iln^n'ram, ol' iliis ^rouad, tbat

"■ avi of Edwaril llie 6lb tliil uot tuudi llie

pal bj the law ol' «lergj belweeu

n«r itiai of Jamea inHhu toy ttif-

&mew u Id ibe xi'i'lily of >li« uDVndcpr. We

Senlirel]' n|ian the aci o( Williara and Mary.
it joavcurale III M^, this act (luls women
ilto llie (tiDe canililiiin with rnen ; and atill
more, niib men of the same uuality res|wc~
ii>e1y. There U autliiiiK in it »buut ihe ciHidi-
liooiif ibe peruii. W'Uere a luaii, CDnnicI of
■oy fdooy, has oletgy , a wornon, cunviul iif the
\ikt offunL'*, ihtll D'll hate ju<l^nient uf death,

i1)U«uffiRtheuaie|iUDiiihiiiciiiaaB nian would
■At, with cleri^y. in the hke vuc. Theie
wWilt rtter all<^r(hei' 1o iht^ ijiiality of the uf-
Ik«. Tlial »eij crime, ivliith iii one recun),
in^icil to a man, iiifi:n juilument of death,
H«i>iabt* by bit cUim ul clergy, applied in
tMbcc Id a woman, iulV-ra the nitecitic judg-
■nt |iic(cri1ied by iheacl. Nor are the two
mn pal into the same condiiion, eieo aa to
fntlbraeat. All womeo at uiiled judgment of
Wli ( nut au u( all men. Some were mdin
ftawbly incapable of holy orders : sucli can-
Mbave their clergy at this day ; nor had any
MteBumpiioafroni death lietbre the dib of
Ini, Voine could nnl prove iheir title lo
■Itqjr by readiug. Men could bate ilieir
4^fy but once; wotneti (he beneBt of ihii
■Uow tolki guotun, till a subsequent act alter-
"^ dtbcbw ID this respect.

"" an tlie words be twisted lo create a

to the rauk uf the offender. It i«

iyt« learned geulleinan, to put ihe se-

l« ISlbm

uol ppnol. But the shorter answer
ire uul two cunsltui^uons lo cbuse be-
If ibe phiaie had been lell gcoenl,
' Ibt aanae nanisbineiit as ■ man kbuuld suffer
Ita bad hiaclwgy in the like case,' it might
hnlceit Ibougbt uncerlaiu what that puuisb-
■■t abottld be; because different orders of
were liable lo dilTerent measure uf punish-
the like vase ; Ihr bulk of men lu fur-
bunting, and discTclionary imprison-
iuferior ecclMiuilica lo forltilure and im-
i lorUsofpailiauienltoinipmouuieoi
■■1)1. In aiicb a leit there might hace heeu
■dm i« oonlend for a fatourable cunitrucliou ;
MtjctiCTCQ then, I should hate thought that
iWniMMire afpunithinentallntied to the bulk
rfnaokind, undistinguished hy peculiar pri-
\ 'i%r*, mual bate beeu deemed the laeinii^
tf Silc|{i»lalure, Uul wbateter might have
. lb* eoiulruelioa of such a text, it must
J ki#Bppn«di^uslly lo all women. They could
I M hava ht«n daaned in casU, according lo Ihe
I of their rc>[>ective busbao£; the
t lord ftf parliament to be impiisoned ;
■ iulivioi ecdeaiastic lo be inipriauiied aud
l!pt; of other man to be imprisoued, lo
t, Mtil b« bunil. Tbe sumie bowercr hu

put IB nd l« aU riaealion, by rtBlintr exprenl*
■he rery measuieof jiuni^hmeut alloiied to all

Durai ill tlie hand in open court, il is said,
shall Dtit apply lo peeresses, because ihey were
iieter liable to be huroi at all. The pontiLin i*
true, not ut peert^sei alone, bul uf ait wornen.
But ihev were liable lo judgment of d«alb ; foe
wbii*h Ibis slighter puniahmeot was a desirable

My lurds, if there be any thing, in Ibe na<
ture of tbe punjahmeol, unreasonable, or ini-
proijer to be applied to women in general, or la
iiobleitoiueii in particular, let the matter cnma
before parliament. It is a legislaiite consiile-
ralioD, and pailiuuent will eulerlain il accurd-
in|{to Ihe ekteul of tbe ptiociple, which cer*
lainiy will apply lo many noblewomen uf iiiucb
higher rank Ihan some peeresaea, wbu, as ilie
law now slaads, are liable lo that puniihioent.
So, I ihiuk, Ihey ought la remain. Guili levels
rank. A Dohlewoman, coiered wiih Ibe igno-
miny of such a couTictioo, cannot forfeit leia
than her eslimalion.

niy lords, tbe unlv quealion is this: bas any
pesiUTe law granted itie ekemplion now de-
manded, to wiud up such a record as this with
perfect impunity, a ridiculous diiigrace lo pub-
lic justice? Has Ibis been dune in expMM
terms ; or in terms, whosp nece^aary onslruc-

My lords, when I hare qualilied the qnet*
tion in that manner, 1 hate gone lo tbe verg*
oljuilicial Buihority. And I do desire tn preM
this upon your lordships as an uniteraal
maxim : no more dangerous idea (wn creep
into the mind uf a judge, than tbe imagina-
lion that he is wiser ihsu ihe law. I coiiiiDB
this lo no judge, whaleier be his deuumiua-
tion, but entend it to all. And, s|iea1iiug at the
bar of an English murl ol'jusiice, 1 make sur«
of your lordship*' approbauun, when I com-
prize eten your lordships, silling in West-
minster-hall. It Is B grierous example lo
other judges. If yuur lordships assume Ihiti
silting in judgment, why not Ibe Kiog's-
bench ? Why not coministiuoera of Oyer and
Terminer? Iflbey do an, why not Ihe Quarter
sesaioua? Ingeuious men may strain Ihe latv
very far — but, to pertert it— -lo new model it —
the genius of our coniUlutlon says, judge*
bare no such authority, nor shall presume 10

* Die Lunie, 31 Aprilii, 1110.

Ordered by the IjOrds spiritual and temporal
in parliament asembted, thai the following
Question be put to the Judge*, viz.

Whether a peeress, couricted by her peen «f
a clergyable felony, is by taw iniiiled lo the
benetilortbeslalutra, av as lo excuse her rmn
capital punisbment, without being humi in lb*
hand, or beiug liable tu any impiisunmeut .'

643]

16 GEORGE III.

Trial of. the Ducheti of Kingston,

[6(4

there the House adjourned again into West*
mioRter- hall ; ivben, after the usual pmclama-
tion for silence, his grace the Lord High Stew-
ard addressed the prisoner to the following
effect:

Whereupon the Lord Chief Baron of the
Court of Exchequer, having conferred with
the rest of the judges present, delifered their
unanimous Opinion upon the said Question,
with his reasons, as follow, viz.
• My lords ; the question proposed by your
lordships for our opinion is^

Whether a peeress convicted by her oeers of
a clergyable felony, is by law intitl«a to the
benefit of the statutes, so as to excuse her from
capital punishment, without bein^ burnt in the
band, or being liable to any iropnaonment?*

My lords, yoor lordships would probably
expect, that on a question of this importance
the judges would have desired tune to have
considered of it; but, as it was easy to foresee
from the first appointment of this trial, that a
question of this sort would probably arise, we
Aave all looked into the several statutes, from
which any light conld be expected : and as on
inch a conaideration we have been able to form
an opinion, in which we all concur, we thought
k onr duty to deliver it immediately, and not
obstruct the public business by unnecessarily
protractinir this trial, which has already taken
Up so much of your lordships' time.

1 am therefore authorized by my brothers
to sa^, we all concur in opinion, that a peeress
convicted by her peers of a clergyable felony
it by law intitled to the benefit of the statutes,
•o as to excuse her from capital punishment,
without being burnt in the hand, or being liable
to any imprisonment.

My lords, the question depends on several
acts of parliament. The fii-st 1 shall trouble
your lordships with, is the Q9 Hen. 8,t c 9,
whicii reciter, ** that by Magna Charta no
freemon shall be taken, or imprisoned, or dis-
seised of his freehold, or his liberties or free
customs, or shall be outlawed, or in any wise
destroyed, that is, forejudged of life or limb,
or pot to death, or shall be condemned at the
king's suit, either before the king in his bench,
that is, the King's-liench, or betbre ativ other
oommivsioner or juil((e whatsoever, but* by the
lawful judgment of his peers, or by the law of
the land ; in which statute, (that is, Magna
Charta,) no mention is made how women,
ladies of great. estate in respect of their hus-
bands peers of the land, married or sole, that is
t6 sa^, duchesses, countesses, or baronesses,
shall be put to auKwer, or before what judges
tliey shall be judged upon indictments of trea-
nous or felonies l>y tlieni committed or done ;
in regard whereof it is a doubt in the law of
£ngland, before whom and by whom such

* See Leach's Hawkins's Pleas of the Crown,
bit. d, c. 83, s. 8.

t The ttat. 90 fl. 6, seepui to be here ip*
tended.

X. H. S. Madam, the lords have considered
of the prayer you have made, to have the
benefit of the statutes, and the lords allow it
you.

But, Madam, let me add, that altliougb very

ladies so indicted shall be put to answer tod be
judged : our said lord the king, willing to pat
out such ambiguities and doubts, bath declared
by authority aforesaid, that such ladies so in-
dicted, or hereafter to be indicted of any treaeoe
or felony by them done or hereafter to be doii%
whether they be married or sole, that tbey
thereof shall be brought to answer, end pot to
answer and judged before aucb jadgee awl
peers of the realm, as peers of the realm sbeoM
be, if they were indicted or impeached of sock
treasons or felonies done or hereafter to be dooi^
and in like (autiel) manner and form, and noit
otherwise."

Your lordships will observe, that tini slatite
does not introduce a new \mw^ but is a deeUn-
tive law, explaining what the true meaning tf
Magna Charta was. * Peers' in that staiale
means equals ; and therefore any of the no-
bility most by Magna Charta be tried b;^ lbs
nobility who are their peers; for all nobility,
whether barons the lowest, or dukes tw
highest degree of nobility, are all equals ia Ihii
respect: and lord Coke, Sd luat. 4.5, saji^
** though duchesses, countesses, and baraeum
are only named in this declaratory statute, vU
marchionesses and viscountesses are oraittod,
notwhhstanding, they are also compreheeded
in this 39th chapter of Magna Charta."

* Peers,* though originally meaning oaly
equals, is now by common use applied to a par-
ticular part of the nation, distinguislied fteei tbs
rest by superior rank and privileges, which they
derive from the king originally by writ or hir
ters patent granted to them or their anceston;
and in cases of such ladies as are not so ee*
uobled, they obtain that nobility by marrii^
to those who are so ennobled.

As the next statute, 1 £. 6, c. 13, a.. 14»
speaks of the benefit of clergy, it will be as*
cessary to say something upon that subject
Lord liale, in his second volume of his Histoiy
of Pieus of the Crown, page 325, says, that
*' anciently princes and states converted to
Christianity granted the clergy exemptions of
places consecrated to religious duties from a^
rests for crimes, which was the original of saoe-
tuaries; and secondly, exemptions of their pe^
sons from criminal proceedings in some cais>
capital before secular judges, which was the
true original of this privilegium clericale. Tbr
clergy inci-easing in wealth, power, honour,
number, and interest, claimed as a right wbit
they at first obtained by the favour ol princei
and states, and by degrees extended these eS-
enipiions to all that hud any kind ofi«ubofJi"
iiate ministration relative to the church."

These exemptions never rose to so grttl
an height in this kingdom as in other placeii
end therefore the clergy were nut exempUd
here fh»m civil saits, nor wtui fSbiM friM^naf

i

I

i

M5]

for Bigamy.

A.D. 1776.

t6«6

ittle pnoiihiiieot, or none, can now be inflicted,
he mlingB of your own conscience wilt eup-
ilj tbat Mfect. And let me giro yon this in-
dmntion likewise, tbat you can never have the

isrvttfe allowed in the lowest crimes not ca-
Mtaly nor wherein they were not to lose life or
imb, nor in high treason touching the king
limMlf, or his royal majesty : but by S5 £. 3,
L 4, de Clero, in all other felonies the ordinary
o^t demand the prisoner as a clerk, or the
moDcr himaelf might demand the benefit of
iba clergy. " The canon law gave the privilege
nly to men in holy orders : our law, in fiivour
lolatiiiingand thedesire of the English bishops,
meDdod it to lay clerks, i. e. any layman, that
hr reason of his ability to read was in anossi-
blitj of being made a priest." C. J. IMiy,
Bee vol. IS, p. 1015. The means of try-
ing whether he was entitled to it was by
reading. If he could read, he was delivered to
Ibe ordinary, tbat is, the bishop or the person
who had ordinary jurisdiction there : but the
wdinary was so much the minister of the tem-
psral courts, and so subordinate to them, that if
the ordinary refused to let the prisoner read, the
knporal court could control, and order a book
Is be delivered to him ; and if the ordinary said
be canld read when he could not, or vict verta^
Ibit be could not read when in reality he oould,
lbs temporal courts gave judgment according
Is the truth of the case ; and those oourfci like*
vile directed, whether the prisoner should be
Mivered to the ordinary with purgation, or
vithout purgation. In the last case they were
H be kept in the ordinary's prison for life : if
Mivered with purgation , then the ordinary
tried him for the fact whereof he was accusecl,
kya jury of twelve clerks ; and if he was ac-

EittMl, 1M was generally the case, he was
ibarged out of prison. Purgation was the
eoovict's clearing himself of the crime by his
•wn oath, and the oaths or verdict of an inquest
•f twelve clerks as compurgators. The pr(»-
ittding wsfi before the orainary ; and old books
speak of their making proclamation for persons
tooome in against bis purgation, ond of their

a airing into his life, conversation, and fame,
of other formalities ; in all which, several
Haiotea say, there were great abuses.

The statute 4 U. 7, c. IS, reciting that
^'vpOQ trust of the privilege of the church di-
mpersons have been the more bold to commit
ttirder, rape, robbery, theft, and all other aiis-
•cbievoQB deeds, because they have been con -
tiaoally admitted to the benefit of the clergy,
•i oAas they offended :'* it enacts, that ** every
ferson not being within orders, which hath
aaoe been admitted to the benefit of his clergy,
ksing a^in arraiq^ed of any such offence, be
not adjDitted to have the benefit or privile^ of
Ibe clergy ; and that every person so convicted
■ftr moi4er fwhich was tlien n cleigvable of-
») ahoQid be marked with an M nn the
of the left thumb ; and if he be for any
Salooy, to be marked with a T in the
pbo0 of tl|t thumb ; and those marks to

like benefit a second time, but another offence of
the same kind will be capital.

Madam, you are discharged, paying your
fees.

be made by the gaoler openly in the court be-
fore the judge, before tbat such persons be de-
livered to the ordinary."

This statute prevented laymen having their
clergy more than once ; and the brandmg an-
awered the purpose of discovering whether they
had had the benefit of their clergy before,thoug!h
it was necessary to prove it by other means, to
prevent their having clergy a second time.

The 1 £. 6, c. 13, will come next to be con-
sidered ; which, after repealing several new-
created treasona and fekinies, and taking away
clergy in several other felonies, in sec. 14,
enacts, that ** in all and every case, where any
of the king's majesty's subjects shall and may,
upon his prayer, have the privilege of clergy as
a clerk convict that may make purgation ; in
all these cases and every of them^ and also in all
and every caae and cases of fek>ny. wherein the
privilege and benefit of clergy is restrained,
excepted, or taken away by this statute (wilful
murder and poisoning of malice prepensed only
excepted) the km! and lords of the parliament,
and peer and peers of the realm, liaving place
and {voice in nariiament, shall by virtue of tbii
present act, or common grace, upon his or their
request or prayer, alledgin^ that he is a lord or
peer of this realm, and claiming the benefit of
this act, though he cannot reiul, without anj
burning in the hand, loss of inheritance, or
corruption of his bkrad,'be adjudged, deemedt
taken, and used,. for his first time only, to all
intents, constructkms, and purpoaea as a clerk
convict, and ahall be in case of a clerk con-
vict which may make purgation, without any
further or other benefit or privilege of clergy
to any such lord or peer from thenceforth at
any time after for any cause to be alk»wed, ad-
jndgfHl or admitted ; any law, statute, usage,
or custom, or any other thing to the contrary
notwithstanding : provided always, that if any
nf the said lords of the parliament, or any of
the peers of this realm for the time being, skall
fortune to be indicted of any of tlie ofi'enoea
limited in this act, that then they and every
of them lahall have his or their trial by their
peers, as it hath been used heretofore in caaes
of treason."

From the time of this statute, whenever a
peer has been convicted of any felony, for
which a commoner might have the benefit of
clergy, such peer, on praying the benefit of
this statute, has always been discharged with-
out burning or delivering to the orilinary : and
there are a series of presents from k>rd Mor-
ley's case, 1066, [vol. 6, p.769], till one in this
reign as late as 1765;* and C.J. Treby says,

* See the Case of lord Byron in this Collec-
tion, vol. 19, p. 1178. 8ee also more concem-
inir benefit of clergy in vol. 19, p. CSl, and
the other cases and books there referred to.

1

647]

16 GEORGE 111.

Trial of the Duchess of Kingston,

X. H. 8, My lords, this triil being si to end,
Both ins remains to be done here, but to deter-
mine the cororoinion.

Lords, Ay, ay.

** the statate 1 E. 6, exempts the peers coniict
•r clergyable felonies from naming in the hand,
and Tirtuslly repeals the statute, 4 H. 7, as to
no much; and the statute 18 Eliz. requires
bnming in the hand only according to the
statute in that behalf before profided; and
there being no statute then or now in force to
«ubject peers to such brand, they are in such
<»se (upon the allowing the benefit of the said
•tatute of E. 6, which is as much ms clergy
without reading or burning) freed from discre-
dit and other penalties of the felony, as much
•8 commoners are by having dergy formally al-
lowed, and being burnt*' Voi, 13, p. 1014. And
Jbe sa^s, *' a peer shall hare this benefit with-
out either clergy or burning, a derk in orders
upon clergy alone without burning, and a lay-
clerk not without clergy and burning." Vol.
13, p. 1019. And I beliefe nobody can dispute
but the law is so. The question therefore is,
whether a peeress is not entitled to the same
prifilege ? and we are of opinion that she is.

* Peers' is a word capable of induding the
whole body of the peerage, females as well as
males; and erery personal prifilege conferred
•n peers is by operation of law communicated
to peeresses whether by Mood or marria|[e,
though only males are mentioned. As trial
by peers, though recognized in Magna Charta
only as belonging to the male sex, * nee
* super eum ibiraus, nee super eum mittemus,'
did by construction of law belong to females,
as appears by 20 H. 6, which is only a de-
claratory law ; so any other personal priTilege,
granted or confirmed to peers generally, is com •
muoicated to females, if it is of a nature capa-
ble of being ooromunicated to and enjoyed by
them ; as trial by peers, freedom from arrest :
Countess of Rutland's case, Moor 769, and 3
Co. 52. And if those privileges are so commu-
nicated, as they certainly are, why should not
this i^iven by 1 £. 6, the consequence of which
is so reasonable and agreeable to justice, that a
female offender shall not undergo a greater pu-
niaUment than a male of her own rank would do
for a crime of the same sort ? But it was insisted
at the bar, that between 1 E. 6, and 18 Eliz. a
peer found guilty of a clergyable offence should
he delivered to the ordinary as a clerk convict :
and 8taunford, 130, is quoted for that purpose,
that by the words of this statute a peer ought to
make his purgation ; and ifsn, he ought to be
delivered to the ordinary to be kept till he has
made his purgation. That opinion of 8taun-
ford seems contrary to law in many particulars.
The 1 E. 6, c. 3, bad in effect 8U8|>ended pur-
gation, even as to commoners: therefore the
legislatnre could never mean to introduce and
establish purgation as to a peer, which Ilobart
says, S89, '* is no ordinance of the common
law, but is a practice among themselves, i. e.
the dergy I rather oferaeea and winked at than

(648

L. H, S. Let proclamation be made fiir
dissolving the commission of High Steward.

Serjeant at Arms, Oyez ! oyez ! oyes ! oar
sovereign lord the king does strictly charge

approved by the common law :" and page S91,
he says, ** the perjuries were sundry in the
witnesses and oompurjpuors, in the jury of
clerks, and the judge himsdf was not dear, sll
turning the solemn trial of truth b^ oath into a
oeremonious and formal lie." It is not proba-
ble the parliament, intending a great dislioetion
in favour of peers, so as to dispense with read-
ing and burning in the hand, meant to leave a
peer a priaoner in the custody of the orduiary,
and to hare hie credit and capacity to aoqoifs
penonal property, and enjoy the profits of fail
lands, to be decided upon in such a mock trial;
and in fact there is no instance in any of tbc
law books, where a peer convicted of a defin-
able felony has ever been delivered to the ordi-
nary, or has made purgation : and the iuriidic-
tion of the ordinary to pursue the clerk relitei
only to clerks in onfers, or such as the commoa
law considered as clerks ; and a peer n6t brii^;
a clerk, be could not make purgation, the onK-
nary having no jurisdiction over him ; and the
words here, " have the privilege of clergy ut
derk convict that may make purgation, aad
shall be adjudged, deemed, taken, and used for
his first time only to alt intents, constructiflBS,
and purposes as a clerk convict, and shall beio
case of a clerk convict which may make por*
gatien," do not import or direct that he ibill
make purgation ; but give a {leer the same ad-
vantage as a clerk convict who might ntks
purgation, i. e. an absolute discharge from ill
further punishment ; and the statute, ai to
him, is to be construed to be a pardon : aad it
seems most probable, that peers never did make
purgation; because, as all who made purgitioa
were to be tried by a jury of clerks, such tritl
would be derogatory to their inherent privilege
of being tried by their peers. Lord chief jof
tice Hale, on this statute (2 H. H. P. C. 376)
says, '* I think it was never meant that a peer
of^be realm should be put to read, or be burnt
in the hand, where a common person sbookl
be put to his clergy ; neither is it said, that be
shall be discharged by his prating of the bene*
fit of this statute, where a common person shall
have the privilege of clergy and may make his
purgation; but only where he may have the
benefit of his clergy in the first clause of tke
statute : the other clause * shall be in case if
a clerk convict that may make purgation' ie
only for his speedier discharge and further ad-
vantage, and not to restrain the general clause*
But it is objected, that the statute 1 E. 6, c. 11,**

S'ves this privilege only to ** lord and lord^sT
e parliament, and peer and peers of the n>alai
having place and voice in the parliament ;*' and
that a peeress, not having place and voice ia
parliament, cannot have the benefit of this sta-
tute. This expression, *' having pUce sad
voice In parliameut," cannot mean to exduds
all peers but sudi as sat in parliameot i buM»

Jot Bigamy,

^leomnnd >ll nwnneT of prrMot hm pr^- ■orereigo loni Die kin^, Tor lili ffmm my Lonl

il ihot lime here attKnileil, i» itepart Hicli &«vard ol* (ireal Itrlliuii iiilends i

I lli< iieai^e of GuJ, anil <if our " '' •-•■-•- ■—■.—

I rilir vrnne »<' llie incldenls if jieers^E, or iii

<i>il« 1imIh>|ib, wIio are lorils uf imrliamenl

n>^-ht>ot pvtrt: anil If lUrae wurrli ■lioulil

t.iii! the beileAt of this stilule la lliow noly

" '.< • iclimlly sut in parliaiiicni, it woulil excluJe

jn-nrj tpinor*, siii) [iii|ri9l [leer*, who, tiy atntiile

90 Car. it, (Ul. 2, c, 1, are now reiiJercil iooa-

pable of (iiiinji; or riling in parliamenl: thp

Hcnls ilierefare are merrly ileacriplire, and not

' iiictiTF. An<l whul makes il very plain Is,

' , in the 4ih and 5lh P. and M. c. 4, which

1 ' 1 «woy clergy fruin acceasarirti before ihe

'ci II) murder Hiid aeteral olhiT uHeacei, ihere

» a protiio that every loni and lorttii of Ihe

C'liamml, and peer and peeri of Ibis realm,
'iog |d*ce and voice in parhament, apon
•t*ry mil icT merit for any of itie olTences afore-
aiHl, thall be tried by llieir peen, aa halh Imn
acciiitomed by Ibe Idas ui' ihi> realm. Here
>ic the very won Is me J inl£, 6, e. 12; yet
il cunid never be doubted, but notwithitandiug
lb«W wordi. peeresK* muil be tried by Iheir

Cwi for otfcDcn aeaioit tbat atalule ; and
dy Somersel [«ee ler case, vol. 2, p. 951]
■M tried by her peers for being acceswry
UIhe niurdrr of sir Thomas Overbury, nhicli
MI M uffciice aninst Ihai very statulo.
What gate riie proLablj lo this hialute, 1 E.
t, e. li, was anoilier stalule passed the
Wdb year, e. 3, providing for the punish-
RKDl nf vigabonds, by making them sinies for
two ymra 5 in wbicli act was a clause, lliat no
tKk convict (ball make bis piir^rition, but
thtlt be * slave for one year lo him who nill
ic bound with two sureties lo Ihe orilinary
him into hlB serrice, and be tliall be
w a vagabond ; and a clerk allainled or
, which by Ian cannot make his pur-
I, may hy the ordinary hedelivered loanv
f, who will give security to keen him as hFs
i fnr 6rv years ; and it shall be lawful lu
y penon, la whom an^ shnll he adjadged
't, Id put a ring of iron almal his neck,
r leg. To avoid all possible question
-■ p*er could be subject to any of these
-, Ihi* att, 1 E. 6, c. li. provide* for
rdiale delivrry, on prnyiu); Ihe be-
liile. Till* titatuti: 1 E, 6, c. 3,
■d and 4tb E. 0, c, IQ, but wa»
E. 6. c. IV, was made. The
hstute, IB Elia. c. 7, provides, thai every
^vhiehsballbeailmilled and allowed in
• hincfit of privilege of his clergy, shall
~npon tw d«livereil lo Ihe ordinary, as
' Hcmlonied ; but, sfier auch clergy
Md bumtog ia ihe hand, according lo
> In that behalf |>rovidHJ, shall fonh-
' it aod delivered out of priaon by
br« wltom snoh clergy shall tie
, Ibal CRUM notwithsiaudin^. Then
-So (letMiw), Ibal ilie jusiieet, belbre
* aiteh diowancc of ckrey vhull be
1 mh) tuay, ttt tba further eerrcc-

liun iif such persons li> whom clergy sliull b«
nllowed, delnin anil krep Ihem in pricim liir
inch convenient lime as the luime jnslite* in
ihrir discretions shall think convi^ulcul, tu as
Ihe same do nut eii^ett one yen'* iiiiprjion-
ment. This proviso plainly relates only lo
those persona inentioneil In the clause, that is,
such |>ersons as had been burnt in the hand oc-
cording l» the aiaiiilc in that cane made and
provided, meaning 4 H . T. Aa peers thereliire
are not in be bnrnl in the hand, lb<^ caniioi he
imprisoned ; for those only are lo be impiisuned
who have been burnt in the hand; and the
word 'juMices,' is more properly apiilicable (n
other courts of judicatnre ihan to this home.
TLeSlJa. 1, c. T, cannot relate to Ibis ques-
tion; for il relates to common persons, anil was
iolended lo put women on Ihe same fooling
with men, as lo small larceuies; and 3d and
4ih W. and M. c. 9, does the same in aH
clergyable leloniea. This bbeivs Ihe justice of
alloning tu tbe peeresses the same henefil tif
J E. 6, c. IS, as peers have ; and il is natural
to suppose, tUal when the legislature were pal-
ting women of iaferinr nuik on the same loot-
ing as men, they would have put peeresses on
the same l<K>ting wiib peers, had it not been
conceived that the same privileges were already
extended to both.

Upon Ibe whole therefore, by «lal, 1 E. 6,
a peer convicted of a clergyable felony is in.
titled to his imniedisle discbar|;e, wilhoul read-
ing or burning in Ihe hand, or being liable to
imprisonment by 18 Eliz.

This orivilege, g\rea by statute, being such
as may be enjoyed by a peeress, is by operation
of law communicated lo her, and puts her in
the same situalinu as a peer ; tbe consei{uencG
of which is, (bat a peeress, convicted of a cler-
gy able felony, praying lliebenclil ofthissta-

wilbonl being burnt in Ibe hand, or liaUe lo
■oy iujpriionmenl.

To IhetneDlinniiivol. 13, p. 03-1, ti leq. of
jlljleralenets in the clergy, Dnd in |iersnii« oi
ilislinction among the laily. may be added from
Mr. llDrringlOB, ■' tlial so Inte as tbe year
Vtti, Adam Gordon earl ofSiilhcrUnd and liic
countess, lubsctibe tbeir names with a pen led
by a notary public, as appears in the coseof tbe

^teiia of Sutherland iu Horn. iVoc. a. d.

...J." ObtervaliuiiB on I II. 6. p. 393, Note
[r] 4tb edition of 17TA. What Mr. Barringtou

n the same note says of Edward ibe 1st when,
princcof WnleHldnnollborou^hly uuderxland.
For iither parliculors reapeclinu such illilcr-
aieness, see Wartnn's Life of sir Xtinmas Popt,
and the passage in Pox cil. bv Ml. Walter Soou
Hi note 2, to canto 3, of tbe Lady of Ihe Lake.
Voltaire, <Dict. Pbilos. art. Ctcrc) mMiMilM.

651]

17 G£ORG£ III. Proceedings against John Hornet [66t

Then the white Ktaff beiogf delifered to
tbe Lord Hifrfa Steward by the gentlemaB
wber of the Black Rod on bis knee, his (ptice
stood ap nncofered, and boldiofi^ the staff in
both bis hands, broke it in two, and declared
tbe eoannaisHioQ to be dissohred ; and then,
leavint^ the chair, came down to the wool pack,
and said. Is it your lordships' pleasure to ad-
journ to the CMmber of Parliament P

Befit of clergy. Tbe passage affords an amoo-
iBg instance oif tbe ease with which bis senten-
^ous flipi>ancy compresses into a very small
•pace a copious mass of false statement and
iBpertioent reflection. ** On ^tait si sarant
Ters le dixibme et onsi^me si^ole, qn*il s'intro-
duisit one contmne ayant force de loi en
Prance, en Allemngne, en Anj^Wterre, de faire
gmee de la oorde a tout crimiuel condamn^
aoi sarait lire ; tant un bomme de oelte^ruili-
lion ^tait nfoissaire ^ T^tat. Guillaume le bft.|
tard, conqu^rant de I'An^leterre, y porta cette
ooflitume. Cela s*appelknt b^n^fice de clergie,
* beaeficioB clericomro aut clergioorum.'

** Nous tf ons remarqu^ en plus d*un endroit,
^ne de vieuv usages perdus ailleurs se retrou-
yretki en Anglelerre, eomme on retroura dans
rUe de fiamotbmce lea ancieus myst^res d'Or-

Sb^ Aojourd'hui ro6me encore ce b^n^fice
e clergie iobeifltechez les Anehus dans toutesa
Ibroe pour on meurtre commis sans dessein, et
poor UD premier yoI, qui ne passe pas cinq cents

Lords, Ay, ay.

X. H. S. This House is ad|Oorned to tbt
Chamber of Parliament.

Then tbe peers and others, returned back It
the Chamber of Parliament in the sanse order
they came down, except that his myM high-
ness the duke of Cnmberhmd walked aifler tbs
lord chancellor.

lirres sterlin^if. Le criminel qui sait lire de-
mande un b^A^fice de clergie : on ne pent k
Ini refuser. Le juge, qui ^tait r^pnl6 p«
I'ancienne loi nesaroir pas lire Ini-mfeme, s'a
rapporte encore au cbnpelaio de la prison, ^il
prtente un livre au condamn^. Ensnite il d»-
mandeau cbapelain, ' Leffit P' lit-il? Lecbspe-
lain p^pond, * Legit ut cTericus,' ii lit conoM
un clerc. £t alors on ae contente de fum
marquer d'un fer chaud le criminel ^ la pauaie
de la main. On a eu soin de rendoire de
graiasey le fer fume et fait un siflement, mm
fiure aucnn mat au patient r^putd cl«nc."

Conoeminff the doubt (mentioned, p. (MO
and aAerwai3s), whether ' homo' incliiddlbrtb
genders, see Barrington*s Ohserv. on 10 fid. I,
sUt. 3; SO H. 6, c. 9, and 1 £dw. 6.

For more concerning trials of Peers asd
Peeresses, aee the Case of lord Ferren, fd
19, p. 986.

552. Proceedings against John Horne, Clerk, on an Informatioa
in the King's-Bench by the Attorney-General, for a Libel:
17 George III. a. d. 1777.

said present sorereign lord the king prosecolff
in this behalf, in his proper person comes isM
the court of our said present sovereign lord tbe
king before the king himself, at Westminster,
in tbe county of Middlesex, on Thuradar aeit
after fifteen days from the day of Ht. Msrtio
in this same term, and for our said loni tbe
kiunr pfiveth the court here to understand sad
be ini«)rmed, that John Home late of Loodoa,
clerk, being, a wicked, malicious, seditious, sod
ill dis{MMed person, and being greatly di«affrcl-
ed to our said present sovereign lord tbe kiig
and to his administration of the government tf
this kingdom and tlie dominions thereunto b^
lunging, and wickedly, maliciously, and sedi-
tiously intending, devising, and contriving It
stir u|i and excite discontents and seditiM^
among his majesty's subjects, and to alieMit
and withdraw the affection, fidelity, and aBl"
gianceof his said majesty's subjects from hil
said majesty, and to iusinuate and cause it loli
believed that divei*s of his nu^esty'a inooedl
and deserving subjects had been inhuroaiil^

In this Case, the report of the proceedings
had upon tbe Trial at Guildhall, and upon
tlie Attorney-Generars Motion for Judg-
ment in the Court of KJug's-bench at West-
minster, was published* by the Defendant,
Mr. Home. I have subjoined an account,
(compiled from Mr. Cowper's Reports and
Brown's Cases in Parliament) of the subse-
qtient proceedincfs before tbe House of Lords.

1. The Trial at Guildhall.

London^ to wit. ij£ it remembered, That
Edward Thurlow, esq. attorney general of our
present sovereign lord the kin;;, who for our

• With the following title: • The Trial at

* large of John Hume, esq., upon an Inforina-

* tion filed Ex Officio bv bis majesty's attorney-
< general, tor a Libel, before the right hon

* William earl of Manstield, in tlie court of

* ]K.ing's-bench, Guil'.thall, on Friday the 4tli

* of July, 1777. Published by the defendant

* from Mr. Gorney's short-hand notes.

• ———Nee belltia tetrior ulla est.

• Uuaok ferri rabies in libera coUa furcDtis.'

* As to tbe operatk>n of tbcte words, iM
lord Ellenborough's Judgment in tbe Canrf
the King against Pbillippt, 6 Enit, 40C

>r ft Ui

Hy'^MCnld majesly't troop* iaib*
Mm_v, or (ilatilaliuo «f llie Husa-
•y in~New.liii);UDd, ID Americ*. lip.
tlie erotic ol* Ureal- BriUJD, ■nil un-
id iricWMlty Id inluce mil encourage
''■ inibjtrcM in tbe raiil proriuce, ca-
iniaiiuo, to ttmit aud uppoae hie ni*>
FrnmenI, on the 8tli ituy ot June, in
Mr of Ihe reign of' our present aove-
Opotm the third, by the erue of
reai-liritmin, France, anj Ireland,
In- of tbe faith, dec, nith force >nd
iHniiol) ■(orenid, in the pariah of St.
Aw.iD theVnril of Ciiea|i, wiokedl;,
I, and Militluutly did write and pun-
atwe and procure in be written and
* certain fatee, wicked, roallcioui,
, and aeditioua lil>rl oF' anil cnncem-
majnly't ^terriment and the em-
•f hia tnmps, according' to tiie tenor
fgllowinir: ' Kint['it-Arros tateni,
'Ja»l, 1775. Atasp«a»tme«in|f
~ *e«erftl membera nf the C'lnalilu-
V, riiirinK an odjttunimeiil, a i;en-
, inI that a anlwcription should be
ifyenleredialoby aiicb of the iiiein*
nit who miiiht npiirnte tlie pur^iose,
~ Ihe »iim of 100/, to be ippbcd to
of tbe widD»a. iirphani, and ai^ed
' otir bf-inveil Anierienn fellow nub-
>t faithful tn tlie chanicterof Eng-
preferrinir dralh lualafery, wereftr
I only iohunnnly iminlt^t'd by tlic
MninKhiaaaidinajeitiy'*^ ' tniupBal
xinftiin anil Cnnenri, m tbe pro-
'lasacbucela' (nieanm)[tbpiiaiitpro-
ly, or planiailun of the Uanachu-
Nen^England, in America,) ' on
•f hist April; which sum being im-
eel1«cted, it waf Ihirenpiin rcBulral
Home' (iileauiit|( himself the said
() 'dopay lo-morrnwioto the hands
BroWBn and Cidlinsoii, on account
ninliliu, Ihe aairl nu|ti of 100/. and
FranVlin be requcaied to apply the
he atMire'raeniiuned purpOM ; John
(nwtniog hiaiKi-lf ihe said John
~ npl of our aaid lord the klag,
of the lawa of tbia kingdom,
perniciouH example of ill others
Mfeoffbodio?. nod alna^insllhe
^^ir aaid nreaent sorereigii loril tbe
~"v and dignity : and the aaid at-
•f our aaid lord tho king for our
let fnRber give* ihe court here
and be infni'mcil, thai the laid
irinB aucb prsun as aforevaid,
inllwfiilly, wickedly, anil seditiousi v
'* ""* indfODtrivingaaalhrraaid,
n ilif «ih day of June in
...11. l/irreonil arm* at
.li Mijil wanlafore-
und ■edJIiuusly
lll^'■d and pcocuretl
il nuJ |<iiMf>li''il, lU a errtain newa-
Tho Murning Chrouicle and
■ ttftaii other r»lw,

D. 1777. [6!

wielmd', mallvioiM, •eindBlao*. and aediiii
concerniug hi^ said nmjeaiy'a ;

accnnliii^ to the tmior and effect (ullnwlnsl
that ii In (ty, ■ King'a Arm* tarern, CombM

• June 7, 1175. At a ajieeial meeting IB

' day of aereral members of the ConatltuliaB_

■ ikicieiy, during an adjonrtiinpDl, a gentle m||
' propuaed thai a subacriptton should be imm '^

■ diately rniered into by such of the membe

■ present who might apiirore the purpaae, fofe

■ raiaiug llie aum of looi. to be applied to th£

■ relief of the widows, orphans, and aged pl^fl

■ reals of our beloved American fellaw^ulijeal^

■ who, failblul to the chai'acter of Englisbmai
' preferring deOth lo slavery, were for lliai roil
' Bon unlv inbLiiuanly mur^WciI by ihe kiog^
(again niGaoing bis majeiiiy'a) * IroojM al ^

■ near Lexington and Cuuconl, in the pnivi
' of M)i«aacbiiselB' ^meaning ihe said prorii
rolooy, or plautntino of the Haasaehua
Bsy in New England, in America) 'o
' liiih oflast April; which turn being ii
' diatelv collecteil, it wna tlierviipon recolrtf.

• ihni Mr. Ilorne' (■i[ait) meaning himself llwfl
ssid JdIid Rome) ' du pay lo-murrow into tf'

• hands nf Mi^-s. Browncs and Collln<on, i

> Ihe account of Ur. Franklin, the asld sum 4|
' 100/. and llisl Dr. Franklin be rRjumleil I
' apply Ihe same to the a bnrr- mentioned pnv

■ poae; John Home' (agnin ninaning hin "'
the said John Horne) in conlempi of our
lord the king, in open vinlaiii'ii of ibe lawa f
this kiDgilnm, In the eril anil peniiFiona esaM
pie of all others in the like case offending. fMl
against tbe |>eacp uf our said lord the king, I'
Crown and digniiy: and ihe saiit atiomev |
□eral uf our said lord the king for our aafd

': the king forlher gifea the Court liere lo

deratand and l« informed, thai the ssid .
I Horne being sncb |)er«on as nforesaiil, and
; triring and wickedly and mahcinualy rietln
, and intending as aluresaid, allprwanltr, Ir ~

on tbeptb day of June, in the td<h yrtr t
' said, with force and arms at Londoa ~'~
I in tbe parish and ward aforeiaid,
I maliciously, and seditiously did print

linb, and cause and procure to be p
' published, in a certain other new>.p,
' tieil. The London Packet, or Flew Uoj
I r:»eiiinff Poet, a cerlam other ( '
I scRodaiouB, malicious, and aediliai
I cnncerning his oaid roajcaly'a g
I the eaiploymeul of hi* iraopa, ai
' tenor aod effect fbllowwg ; t
I ■ King's Arm* larera, C««M,

' At a Hpecial rncdmr iUa 4t
I ■ membersof theC«iBH*«w«rfSi
' ■ on adJuurDmeni, « g*m '

' a subscription fteiM fca
I ' into (by sue
i * might appm

'*um«flOOt,tot*ai
' • widosm, «
I > lelof ed A*
J 'fill tcthcri

B55]

17 GEORGE III.

Proceedings against John Home,

[656

■ inhumanly mordered by the kinf^V (meaning
his said majesty's) * troops at or near Lexiog-

■ ton ami Concord, in the pro? ioce of Blassa-

* chuseta' (meaning the said province, colony,
or plantation of the Maasachusets Bay in New
England^ iu America) * on the 19th of last

* April ; which sum being immediately col-

* Irttfd, it was therenpon resolved, that Mr.

* Home' (again meaning himself the said John
Home) * do pay to-morrow into the hands of

■ Bless. Brownes and Collinson, on the account
< of Dr. Franklin, the said aum of 100/. and
'that Dr. Franklin be requeated to apply the

* aame to the above-mentioned purpose ; John

* Home' (again meaning himself the said John
Home) in contempt of our said lord the king)
in open violation of the laws of this kingdom, to
the evil and peraicloos example of all others io
the like case offending, ana also against the
peace of our said lord the king, his crown and
dignity : and the said attorney general of our
aaid lord the king for our said lord the king
further gives the Court here to understand and
be informed, that the said John Home being
•ucli person as aforesaid, and contriving ana
wickedly and maliciously devising and intend-
ing as aforesaid, afterwards, to wit, on the 9th
day of June in the 15th year aforesaid, at
London aforesaid, in the parish and ward afore-
said, wickedly, roalicionaly, and seditiously did
print and publish, and cause and procura to be
printed and published, in a certain other news-
paper, entitled, The Public Advertiser, a cer-
tain other false, wicked, scandalous, malicious,
and seditious libel of and conceming his said
majesty's government and the employment of
bis troops, according to the tenor and effect
following ; that is to say, ' King's Arms tavern,

* Comhill, June 7. At a special meeting this
' day of several members of the Constitutional
' Society, during an adjonrnment, a gentleman

* proposed that a subscription be immediately

* entered into (by such of the members present
( who might approve the purpose) for raising

* the sum of 100/. to be applied to the relief of

* the widows, orphans, and aged parents of our

* beloved American fellow-subjects, who, faith-

* ful to the character of Englishmen, preferring

* death to slavery, were for that reason only
< inhumanly murdered by the king's' (meaning
his said majesty's) * troops at or near Lexiiig-

* ton and Concord, in the province of Massa-

* chusets* (meaning the said province, colony,
or plantation of the Maasachusets Bay in
New England, in America^ < on the 19th of
' last April ; which sum oeing immediately

* collected, it was thereupon resolved that Mr.

* Home' (again meaning himself the said John
Home) * do pay to-morrow into the hands of
^ Mess. Brownes and Collinson, on the account

* of Dr. Franklin, the said sum of loO/. and

* that Dr. Franklin be re<}uested to apply the
'same to the abovementioned purpose ; John

* Home' (agaiQ meaning himself the said John
Qome) ID contaBpt of our said lord the king,
ID opoD vwlaticp of the lawa of this kingdoaa,
10 the«fil uiA fcmuaow exwiplo of oil others

in the like case offending, and agaiBSt the peace
of our said lord the kiiig, his crown and dig-
nity : and the aaid attornty general of our said
{>resent sovereign lord the king for our saiil
ord the king further gives the Court here to
understand and be informed, that the said John
Horne being such person as aforesaid, and
contriving and wickedly and maliciously de-
vising and intending as aforesaid, afWwardf,
to wit, on the 9th day of June iu the 15tb year
aforesaid, with force and ariDS at London a'fure-
said, in the parish and ward aforesaid, wick-
edly, maliciously, and seditiously did print and
publish, and cause and procure to be priatd
and published, a certain other false, wicked,
malicious, scandalous, and seditious libel ofuid
conceming his said majesty's government lad
the employment of his troops, according to tba
tenor and effect following ; that is to sty,
' Kind's Arms tavern, Comhill, June 7. At a
' special meeting this day of several men-
' bers of the Constitutional Society, durii^
' an adjournment, a gentleman proposed tbit
subscription should be inimedjately eotered

j ' dowa, orphans, and age<l parents of our bekff"
' ed American fellow-subjects, who, faitbfol Is
' the character of Englishmen, preferring desth
' to slavery, wera for thai reason only iahB'
I manly murdered^by the king's' (again racia-
ing Ilia aaid majesty's) * troops at or near Lei-

* ington and Concord, in the province of Mu-

* sachusets' (meaning the aaid province, colssyi
or plantation of thcMassachuveta-bay in Ncv-
Engtand, in America) * on the 19tli of Uit
'April; which sum being immediately col-
' lected, it was thereupon resolved that Mr.

* Uorne' (again meaning himself the said Joha
Horne) ^ du pay to-morrow into the hands of
' Bless. Brownes and Collinson, on accouct of
< Dr. Franklin, the said sum of 100/. and that
' Dr. Franklin be requested to apply the sans
Mo the above-mentioned purpose ; John Home'
(again meaning himself the said John Home)
in contempt of our said lord the king, in open
violation of the laws of this kingdom, to tbe
evil and pernicious example of all others io the
like case offending, and also against the peace
of oUr said present sovereiflfu lord the king, hii
crown and dignity : and the said attorney-g^
neral of our said present sovereign lord ths
king for our said lord the king further gives
the Court here to understand and be informedf
that the said John Home being such persoa
as aforesaid, and contriving and wickedly and
maliciously devising and intending as aforeuid,
afterwards, to wit, on the 9th of June in the
15th year aforesaid, with force and arma at
London aforesaid, in the parish and ward afore-
said, wickedly, maliciously, and seditiously did
print and publish, and cauae and procure to be
printed and published, a cerUin other falset
wicked, malicious, scandaloua, and aeditiooi
libel, in whkh aaid last-mentioned libel an
GQntuDed, amoDgat othier thiDgs, difcro bk%

I
\

f

i

for a LibcL

out, malicioas, and seditious matters of |
otrninfif his majesty's government, and i
»loyment of his troops, according to the !
mo effect foUoiviiiir ; that is to say, !
I Anns Tavern, Cornhill, June 7. At a
I meeting this day of several memliers i
: Constitutional Society, durins: ^^ &d- •'
nent, a gentleman proposed that a sub- i
on should be immediately entered into •;
eh of the members present who might
re the purpose) for raising the sum of :
:o be applied to the reliet'of the widows, i
IS, and aged parents of our beloved '
can fellow subjects, who, faithfvt to the '
:ter of Englishmen, preferring death to '
^, were for that reason only inhumanly '
red by the kin;;*8' (again meaning his i
ijesty'h) • troops at or near Lexington !
locord, in the pro\inceof Massachusets' ■
ig the said provinco, colony, or plan- j
r the Massachusets Bay in New Eng- <

America) * on the 19th of last April/ |
mpt of «>nr said lord the king, in open
1 of the laws of this kingdom, to the
« I>ernicious example of all others in the
e offending, and albo against the peace ,
taid present sovereign lord the king, his ,
,nd dignity: and the said attorney- fife- ,

our ftdid lord the king for our said lord
; further (fives the Court here to under-
nd be informed, that the said John
being such ptrson as aforesaid, and
ulawfully, wickedly, malicioutdy, and
»ly intending, devising, and contriving
Raid, afierwnrds, to wit, on the 14th day

in the 15tli year aforesuid, with force
IS at L'Uidon aforesaid, in the parish
ird aforenaid, wickedly, maliciuuftly,
liouHJv did write and puiilish, and cause
;ure to be m liiten and publislied, a eer-
ie, wicked, malicious, scandalous and
i libel of ami C(»ncerning his said ma-
governnient and the enipluynient of
tps, according to tlir tenor and effect
^; *■ I* (meaning himself the said John
*■ think it prop, r to give the unki:own
tutor this ni»lice, ihut I' (again mean-
"-.elf the said John llorne) *• did yester-
y to Messieurs Hrounesand Collioson,

account of Dr. Franklin, the sum of ,
:d that 1* (ugain meaning himsi'lf the !
n Home) * will write to I)r. Frankliu, |
ling him to apply the ?;ame to the relief
widows, orphans, nnd agrd parents of
loved American fellow-subjects, uho,
1 to the character of Englishmen, pre-

death to Mavery, were fur thui reason
nhumanly murdered by the kingV
g his said mHJt'^iy's) ' troops ai or
lexington and Concord, in the pro\ince
Bochusets,' (meaning (he said province,
i>r plantation of the IMassachnscts Bay ;
England, in America) ' on the 19th of
pril; John Home/ (again meaning
the naid John Home) in contempt of

lord the king, in open violation of the
thia kingdoQi} to the evil and peroici-

XX.

A. D. 1777. [658

Otis example of all others in the like case of-
fending, and also against the peace of our said
present sovereign loni the king, his crown and
dignity : and the said attorney-general of our
said lord the king for our said lord the kiofl^
further gives the Court here to understand and
be informed, that the said John Home hein^
such person as aforesaid, andai;ain unlaw fully,
wickedly, and seditiously iutei>4>DK:t devising,
and contriving as aforesaid, afterwards, 1o wit,
on the 15th day of July, in the 15th year afore-
said, v^ith force and arms at Loudon aforesaid^
in the parish and ward aforesuid, wickedly, ma-
liciously, and seditiously printed and uubiisbed,
and caused and procured to be printed and pub-
lished, in a certain other news- paper, intitled.
The Public Advertiser, a certain other false,
wicked, malicious, scandalous, and seilitJous
libel of and concerning his said majesty's go-
vernment and the employment of bis troops,
according to the effect folloxting; tliat is to
say,' < V ^meaning himself the said John
Horne^ * tbink it proper to give the unknown
' contributor this notice, that 1' (again meaning
himself the said John Home) ' did yesterday
' pay to Mess. Brownes and CoHinson, on the

* account of Dr. Franklin, the sum of 50/. and
' that 1' (again meaning himself the said John
Home) * will write to Dr. Franklin, requesting

* bim to apply the same to the relief of the
< widows, orphans, and aged parents of our be-
' loved American fellow-subjects, who, faithful
' to the character of Englishmen, preferring

* death to slavery, were* (for that reason only)

* inhumanly murdered by the king's' (again
meaning his said majesty's) * troops at or near

* Lexington and Concord, in the province of

* Massachusets' (meaning the said province,
colony, or plantation of the Massachusets Bay
in New England, in America) *on the 19th of

* last April; John Horue,' (again meaning him-
self the said John Home,) in contempt of our
said lord the king, in open violation of the laws
of this kingdom, to the evil and pernicious ex-
ample of all others in the like case offending,
and also against the peace of our said lord the
king, his crown and dignity : and the said at-
torney-general of our said present sovereign
lord the king for our said lord the king further
gives the Court here to understand and be in-
formed, that the said John Home beinp^ such
person as aforesaid, ami contriving and wickedly
and maliciously devising and intending at
aforesaid, afterwards, to wit, on the said 15tK
day of July in the 15ih year aforesaid, with
force and arms at London aforesaid, in the
parish and ward aforesaid, wickedly, malici-
ously, and seditiously |did print and publish,
nml cause and procure to he printed and pub-
lishr d, a certain other false, wicked, malicious,
scandalous, and seditious libel of and concern-
ing his majesty's government and the employ-
ment of his tro«>ps, according to the tenor and
effect following; that is to say, *■ V (meaning
himself the said John Home) * think itpni|>er

* to give the unknown contributor this notice^

* that I' (m«aiiiog himself the stud John Home)

659]

17 GEORGE III.

Proceedings against John Horne,

[eeo

: * (lid yeslerday pay to Messieurs Brownes oncl

* Colliosoii, on the account of* Dr. Franklin,

* the sum of 50/. and that 1' (again meaoinc^
himself the said John Horne) * will write to
' Dr. Franklin, reque&tinp: him to apply the
*■ same to the relief of the widows, orphans, and

* aged parents of our heloved American fellow-

* suhjects, who, faithful to the character of

* Kuglishmen, pre/erring death to slavery,
' were for that reason only inhumanly mur-

* dered by the kingV (again meaniusir his said
majesty's) * troops at or near Lexington and

* Concord, in the pro? i nee of Massachusels'
(meaning the said province, colony, and plan-
tation of the Massachusets-Bay in New Eng-
land, in America) * on the 19th of last April;

* John Home* (again meaning himself the said
John Home) in contempt of our said lord the
king, in open violation of the laws of this king-
dom, to the evil and pernicious example of all
others in the like case offending, and against
the peace of our said present sovereign lord the
king, his crown and dignity : whereupon the
said attorney -general of our said lord the king,
vrho for our, said present sovereign lord the
king prosecutes in this behalf, prays the consi'
deration of the com t here in the premises, and
that due process of law may be awarded against
bim the said John Horne in this behalf, to make
hi 111 answer to our said present sovereign lord
the king touching and concerning the premises
.afoi;esaid, &c. £. Tuurlow.*

Fridaif, Julif 4, 1777.

As soon as the court was opened, the special
jury were called over : eleven ouly appearing,
Mr. Attorney General prayed a tales. The
•box containing the names uf the cninmon jury
standing open upon the table, tlit* Associate
took outapQper, and, shewing it to 31r. Horne,
nsked, if he had any objection to that man's
lining sworn on the jury ? 3Ir. Horne rt plied,
*' I object to that name, and for this reason : 1
desire that the box may be shut and shaken ;
and when that is done, I shall have no objec-
tion to any name.'' The box was accordingly
■hut and shaken, and a name drawn out ; but
another of the special jury coming into court,
the talesman was not sworn.

The following Special Jury were sworn :

Joseph Dalmer, Cursitor-street, merchant.
Philip Buikley, Fleet- street, druggist.
James Brant, Cheapside, silkman.
David Bnffar, Cheapside, woollen-draper.
William Watts, Fore-street, goldsmith.
Nathaniel Lucas, Fore -street, merchant.
William Abdy, Oat- lane, goldsmith.
Thomas Smith, Milk-street, merchant.
Tho. Brooks, Cateaton-street, linen-draper.
AI. Stanton, Aldermanbury, warehouseman.
Win. Loydd, Christ-church, woollen-draper.
Henry Morris, Fleet-street, silversmith.

* * Aflerirardf lord Thurlow and Lord Chan*
eellor.

Then the Information was opened by Mr.
Buller.

Mr. Horne, My lord, with your kirdship'i
permission, 1 believe it is proper for me, at this
time, before Mr. Attorney-General proceeds, to
make an objection ; and to request your lonf;-
ship*s decision concerning a point of practice
in the proceeding of this trial. Have 1 your
lordship's leave P

Lord Mansfield. Certainly.

Mr. Horne, Gentlemen of the jury— —

Lard Mansfield. No. Not to the jury. If
you make an objection to the iriegularily of
the proceedings, you must address me.

31r. Horne. i am- well aware of it: and f
hope that ^our lordship will, U(K)n this uA
other occasions, hear me before you suppoie
roe to be in the wrong. 1 was not guinir to
address my argument nor my objection to the
jury ; if your lordship will only permit me to
request their attention ; because I hare fre-
quently observed upon trials, that in all ctsai
almost, when application has been made to tbe
judge to decide upon any ol-jection, tbe jury
have been generally supposed to be in a maDoer
out of court ; and I therefore now address my*
self to the jury, only to request their attentMNii
and for no other purpose.

Lord Mamjield. Very well. Go on.

Mr. Home. Gentlemen of the jury, wkit
1 have said to his lordship, if you heard it, may
perhaps make it unnecessary for me to addrcH
you. Gentlemen, though ^^hat 1 am goiflff
to say to his lordship respects a matter oi
law and practice of the Court, yet 1 meant ta
request your attention, because you may fial
perhaps that the decision may concern \ouia
hear it. My lord, I understand (andltbink*
I see good reasons why it should be so) that it
is the usual practice and wholsome custom of
the Court, in trials of this kind, that unless tht
defendant exauiines witnesses in his defence^
the defenilant's answer closes the pleadio((:
and it is not the practice, in that case, that the
counsel for the prosecution should re)>ly. Bat,
m^ lurd, in the late (rials of the printers, for
prmting and (lublisl.iug the advertisement now
in question, 1 ob-crved that Mr. Attorney-Gc'
neral claimed and exercised the peculiar prifi-
lege of replying, notwithstanding .that no wit-
nesses had been called for the defendant. My
lord, with your lordship's permis<>.ion, I men
to submit my reasons to your lordship in sup-
port of my objection to this claim of Mr. At-
torney-General in the present trial.

Lord Mans/itld. You come too early fir
the objection ; because the (d)jecti(»n, if there it
any foundation in it, shouhl be when be getaaf
to reply.

Mr. Horne. My lord, I own I did expect
that Mr. Attorney-General would urge sooia*
thing of that kind against what 1 have said. \
stopped, expecting that answer from him ; be?
cause, my lord, he may, verv likely, imagint
' it to be a part of the duty of bis office to bafll
me in any manner, and lo take all ailfiBligit

2

S613

fir a Libel.

A. D. 1777.

[66S

vhicb be etn, whether fair or unfair, against
me, and to obtain a verdict against me by any
means — there are reasons why he should at-
leiD|ittodo so; and therefore, 1 own, 1 ex-
pected that the Attorney -General would have
urged that against me. But, my lord, 1 ap-
prehend, with great submission, that this, and
this only, is the proper moment

Lord Mansfield. Mr. Home, I will do so
far for you. • If the defence that you are to
make may in any manner be guided or go-
verned by a knowledge, whether the Attorney-
General has or has not a right to reply ; if Mr.
Attorney-General acquiesces in it, 1 have no
tbjection to your being apprized how it stands
iM^orehand ; because otherwise it would come
ifter you had made your defence: and if you
nean to calculate your defence in some way
differentl}', upon tlie expectation of his having or
his not having a rijrhtto reply, f will willingly
(I dare say tlie Attorney-General makes no ob-
jection to It) hear you upon that point now.
Ait. Gen. None in the world.
Ur. Home. Your lordship has hit upon one
efthe very reasons that I was going to lay be-
fore you. But, uiy lord, 1 had rather that this
kad come as a matter ot justice, than as an ao-
fuescence from the Attorney- General; be-
cause 1 suppose that every defendant, who
ihall hereafter Ntand in my situation, will have
tbesame ri^ht ; ami, if ii comes as a matter of
hfow froui the Aiu»rney-General, those for
whom 1 am murh m(»re concerned than my-
idf, may not perhaps meet with that i;onteel
acquiescence. However, 1 thank the Attorney-
Gojerai. I shall hetr then, my lord, at present
to make my olijeciion. 1 am sure I should
kfe been peniuited to make it, because the
aq^uments Hliich I had to use would have been
aacb as v^ou'd more particulnrly have affected

{our lordsiiip\ mind. It' then 1 am permitted,
ioppose that I um now to object to the right
if reply.

Lord Mantfitid. You are now to object to
die ri}(ht ot reply.

}lth. Home. My lord, if I should forget
aay thing upon this occasion, so new to me,
asd make any mistakes, I shall beg leave to
refresh my mVmory \%itli what I have written
down. Mv lord, I have been taug^ht by the
best authoritii^s, that the estublished practice
and apjiroted rules of the court are so, only
because they are reason, and reason approve>d
by long experience; and they obtain as rules
aad practice only tor that cause. My lord, I
believe I .vhall nfit be contradicted by your lord-
ibip, when 1 aver, that it is the established
practice and approved rule of the Court, in \
trials of this kind (where the Attorney- General
does not prosecute) that if the evidence brought
fiir the prusi cution is not controverted by any
Hber evidence on the part of the defendant, but
tbe fact, as far as it depends upon testimony,
tlkeo as the prosecutor's evidence left it ; that
Ikea the defendant's answer closes the plead -
iif. And this, my lord, has obtained and been
tWlMiilitd as the approved rule and practice

of the Court, because it is supposed the method
best calculated for the obtaining of justice;
that is, for the conviction of the guilty and the
acquittal of the innocent ; for both are to be
regarded : and when that is done, then only, I
suppose, is Justice done. Now, my lord, the
reason of this practice is not, like some others,
so covered over by the rust of ages, or disguised
by the change of circumstances, as that it
should be difficult now to discover it. On the
contrary, it is, to my understanding and appre-
hension, as plain and evident now as it was the
first day that it was introduced. But that Is no
part ot my business to enter into : the reason
of the practice it does not belong to me to
give. It is sufficient for me to say that such is
the practice, and being the practice, it must be
supposed the best method of obtaining justice.
Then, my lord, I humbly submit it to your
lonlship, that if this is the best method for ob-
taining of ju£tice, a contrary method rou^t be
attempted for some other end ; and that end
must be injustice, or the conviction of the ac-
cused by any means. 3Iy lord, the practicei
and this exemption from it, which Mr. Attor-
ney-General claims, cannot both stand : one or
the other must be given up ; because they can-
not both be the best method and most likely
means for the obtaining of justice. Now, my
lord, that the king, or that the attorney- ge-
neral in his name, should be permitted to pursue
any other method or practice than that esta-
blished method which is best calculated for the
obtaining of justice, seems to me completely
absurd. For the king, such as the law and
such as reason conceive him, can have no
other interest but in the obtaining of justice,
impartial justice. And if it was possible, my
lord, to conceive a king even with a leaning or
an inclination on either side, it must rather be
that his subjects should be found innocent than
guilty. But this claim of Mr. Attorney-Ge-
neral, my lord, absurdly supposes the contrary ;
and that the kint; has an interest in their being
convicted; and that therefore easier and readier
menn9, and greater means, are to be allowed to
the king for obtaining a conviction, than are
allowed to any other person, my equal or my
inferior. And y(-t, my lord, 1 must acknow-
ledge that the claim which I am now objecting
to, is not a new one. My lord, in the reign of
James the second, that man (fur he never was
for one moment a king) clainked the peculiar
rii^ht, prerogative, and |»ower of dispensing
with the lavisof the laud. Sir Edw. Herbert,
the chief justice of those days, and the other
jud<;es, decided in favour of that claim.* Thank
God, my lord, the glorious Kevolution — (and I
call it so : it shall not have less praise from me
because it is now grown ancourtly) — the glo-
rious Revolution put an end to that iniquity..
Unfortunately for this conntry, the principles
which produced that and many other iniquities
are now again revived and fostered; and

* See the Case of air £dward UaI^* v<»'- ^ ^»
p. 11^, of Ibis Collection.

I

e63]

17 GEORGfi IIL Pnee^Bngt agmntl John Home,

t864

•moogit many other most ihtmeful doctrinet,'
this doctrine of a dtspensiDg poirer if now re-
▼i?ed agiiQ — ooder another shape and form
indeed ; but it is the same power. It is now
a prr rogative to dispense with the rules and
methods of proceeding ; that is, my lord, to
dispense with the laws: for the roles and
methods of proceeding (and I have heard your
lordship say it in other cases) are parts of the
laws ot the land. My lord, I have been told
(and that by a greater authority than any al-
most that now lives) that ** the metho<M and
forms of justice are essential to justice itself.'^
And, my lord, the forms and methods of pro-
ceeding are particularly tender in that part of
the laws which is calculated for the protection of
innocence. My lord, the ]>enal laws are made
to bring criminals and offenders to justice ; but
the fornM and methods of proceeding of the
courts of justice are appointed singly to distin-
guish the innocent from the guilty, and to pro-
tect tliem against exorbitant power. My lord,
in the case of this particular privilege which
the Attorney- General claims, I think 1 could
spend a day in shewing how many received
1ml maxims and truths it violates : for truth is
Ofsuch a nature that it has a thousand branches
issuing from it ; and falshood, let it be as care-
fol as it can, will run against some one or other
of them. I do really believe I could fairly
iqpend a day in shewing the absurdity of this
claim. But yet, to my great disadvantage and
my great sorrow, when, in the Iste trial of the
pnnters, the defendant's counsel objected to
this claim of Mr. Attorney-General, your lord-
ship interfered hastily, and saved Mr. Attorney
General the trouble of vindicating his claim.
Your lordship saved him from the embarrass-
ment he would then have found, and which I
am confident he will now find, to produce one
single argument of reason or justice in behalf
of bis claim : arii this your lordship did by an
absolute overbearing of the objection, without
even permitting an argument. And, my lord,
that is a very isreat disadvantage to me, as well
as it was to the defendant in whose cause he
made it: for, my lord, the very ingenious coun-
sel— (I beg the gentleman^s pardon for at-
tempting to distinguish him by that epithet ;
there is no want of ingenuity at the bar) — hut
the very honest counsel who made that objec-
tion, would have been able to support it in a
very different manner from any in which I can
ex|»ect to do it. My lord, the trial may take
up some time; therefore I will no longer hold
you on this objection. I shall reserve to my-
self the right, which I did exercise in con-
demning the action of the king's troops (which
I did then call, and do still, and will to-mnrrow
call, because contrary to law, a murder) so I
•hall reserve it to myself, and not now take up
more of the time, to say what I shall think
proper by argument and reason on the decision
of your lonlship ; which decision roust come
mAer your lordship shall have heard the At-
torney-General's answer, and my reply : — for
I tike it I ha?e a right to reply. 1 shall then

reserve that power to myself to speak at fredy
of it as I should do of any other mdifferent ac-
tion in the world.

ImvA Mansfield, There is no occasion finr Mr.
Attorney- General to say any thing. I am most
clear that the Attorney -General has a right tc
reply if he thinks fit, and that I cannot dcprira
him of it ; and there is no such mle, that ro no
case a private prosecutor or private plaiiftiff
shall not reply, if new matter is urged which
calls for a reply ; new questions of law, aeir
observations, or any matter that makes a reply
necessary. No authority at law has beca
quoted to the contrary. A party that kegina
has a right to reply ; there is not a State Tiiat
where the solicitor-general or the attorney- g«i-
neral have not replied ; and I know of m> law
that says in any case the prosecutor may not
reply. But, fur the saving of time, rules by
usage of the bar are received. Two gentle*
men don't examine the same witness, but yet
they do very of^en.^ They don't reply when
there is no evidence for a defendant, and no-
thing new to make it necessary to reply : tbsa
they don't do it ; but if a question of law wa^
started, which nobody thought of in the begin*
ning, they do it then : then they have a right
to reply, and must reply, for the sake of jas«
tice. And therefore I apprize Mr. Home that the
Attorney- General certainly has a right to reply.
Mr. Heritf. Your lordship must be very sen-
sible how untoward is my situation in this case.
This is only a repetition of what happened be«
fore ; if your lordship will thus do the business
of Mr. Attoniey- General for him. Aly lord,
you now take from me what you ffive to hin ;
you take from me that rii^ht of reply which by
the practice of the court I have, whilst yoa
give to him that ri^ht of reply which by the
practice of the court he has not. 1 have a rifj^ht
to reply to the Attorney • General's answer to my
objection, but f have no ri^ht to reply upon the
judge. 1 beg the Attorney- General may do hif
own business. He is full of reason and ar^Q'
ment. He smiles. Indeed he well may.
My lord, he can surely prove the justice of l»i»
claim himself, if there is any in it. My lord-
Lord Mansfield. Sir — hear — Your proper
reply to the juilginent I have given is a roottoa
to the Court ; I never here decide. — It is speak-
ing to no purpose to persuade me where I htvc
no doubt. — The Attorney-General here will be
of the same opinion ^^ ilh me. Hut your proper
reply to me, is a motion to the court ; and if
the suffering him to re[ily is a^^ainst law, itti
an irregularity in the (rial, for which the ver-
dict .will he set aside. You will have a remedy*
Mr. Home, O, my lord, 1 have already siu*
fered under your lordship's directing me to re«
medies.+ "f he most cruel of all poi*u>uers arc
those who poison our remedies. Has yoar
lordship forgotten ? — I am sure you have sot
forgotten that 1 have, once before in my li^f*
had the honour to be tried before your lordsbif

* See the Case of Doe v. Roe, 2 CampbeH**
Nisi Priui Kep. 280. f See vol. 0, p. tl^

665]

Jbr a LiteL

for ft pictnded libel. My lord, this AiUer of
replj I know to well to be the practice, not
omjr from the intelligence I have bad npon that
flvlgecl, hut from that very trial at Guildford,
on the action brought against me by the present
lord Onslow. My lord, I could then have con-
tradicted his evidence. 1 will just mention two
or three particulars in thu case. It was the
OMSt scandaloos one that ever came before a
oonrt (Your lordship cannot forget the parti-
culars in that trial.) 1 was prosecuted by him
Ibr a libel. On the first action which he
brought, I obtained a nonsuit. Upon that, a
fresh action was brought. To that fresh ac-
tion (in order to try it in Surrey, where the
pbintiflT bad his influence) in that fresh action,
words spoken a year or two before were added,
words of a different nature, and upon a different
sniNect. W e came to trial before your lordship,
and I do remember some very strong cases
(which indeed 1 intended to have published) of
voor lordship's practice in that trial. But, my
lord, however impatient I may bethought to be,
I am very patient under personal injuries. I
have never complained of the practices used
•gainst me on that trial, nor of the mistakes f to
sneak gently) which your lordship made.
Your lordship then told me, as now, that I
ihootd have a remedy —

JUiomey- General. I beg leave to object to
this way of' proceeding in a trial. What can it
Is to the issue that is joined in this cause, any
part of the history of what related to the trial at
Qsildfbrd f

Lord Manifield. If I remember right, you
bad a remedy there, for it was' determined not
to be actionable.

Mr. Home. True, my lord ; but it cost me
900/. The remedy was almost as bad as the
verdict would have been.

Lord Mansfield. There must be an end.

Bir. Home. Not of thiii objection.

Lord Man%field. No ; an end of going out
^tbe cause. You must behave decently and
properly.

Mr. Home. 1 will surely behave properly.

Lord Mansfield. This is over, i tell you
beforehand, I apprize you of it (which is going
^t of tlie way), that it is not in my power to de-
^ve the prosecutor of replying, if he sees
canse to desire it.

Mr. Home. Now then, my lord, I entreat
3^00 to let me decently tell yon of the situation
you put me into. When I offer to prove by
^rgoment the ri(;ht which I have to make my
objection at this time, your lordship kindly
ttops me, and takes it for granted. Then, at-
terwarils, it seems, it is you who apprized me.
Tou tell me you have, out of the rule, apprized
me : yet, because I accepted that which I knew
to be my right, as an apprisal which you were
wilting to gif e me, not meaning however to
froclude myself from the argument, your lord-
ship makes use of my acceptauce of this ap-
prisal to defeat my objection. First, your lord-
ship interferes to save Mr. Attorney-General
fton attempting to give a reason, which you

A. D. 1777. [06^

both know I^ cannot give ; and then Mr. At*
tomey-General gets np to save your lordship in
his torn, and to stop me from explaining vour
lordship's conduct. Thus between jronr lord*
ship and Mr. Attomev- General, a defendant ia
in a blesoed situation f [Here some promtscoooa
altereation ensued, after which Mr. Home pro«
ceeded.] What I was speaking of was merely

this ; that the practice [Here again some

interruption] I was going to shew your lord-
ship (in answer to what fell from you, and not
distinct from this cause, nor from what yonr
lordship had said) I was going, and decently
going, to shew your lordsiiip, that it was the
practice of the oonrt that the prosecutor should
not reply unless eridence is called for the defen*
dant I was going to shew it to your lordship
from my own particular case before your lord*
ship at Guildford, and that I suffered under it
considerably; and I mentioned the instance.
I am tfure that is not wandering from the pobt,
when your lordship has said, that it was nof
the practice of the court. If the Attorney ' Ge-
neral had said so, I should have had a right to
reply to him. But I must say, as before, if
your lordship is to do the Attorney- Generara
business, ami so cut off my reply, and then
Mr. Attorney- General is to get up and say.
This has nothtog to do with the cause ; betneen
the Chief Justice and the Attorney* General,
what am I to do ? My lord, I l»eg leave to men-*
tion to your lordship, that if the Attorney-Gene-
ral had said truly, snd if I had wandered from
the case, it would not be wonderful that I, unused
to these matters, should warider a little ; and
your lordship should have some indnlgence to
my situation. My lord, I was going to men-
tion to your lordship my own case : all 1 know
of law IS from my own case, and from what I
have been a witness of myself. I, in that case,
at Guildford, did suffer a false evidence to pro-
cure (by your lordship's mistaken direction) a
bad, fafse verdict ; becauKe I uas told by my
counsel (some of the first couoKel in this coun-
try) that the words themselves were not action-
able; and therefore, though I could have
proved by gentlemen in court that the words
sworn against me were not sfioken by me ; yet
my counsel told me it was hetter for me to let
those words go as proved, than, by calling evi-
dence, to give to the prosecutor a right of reply,
which otherwise he would not have: therefore
I suffered the words to he supposed to have
been spoken, rather than give to my adversary
a right to a reply. But now 1 find he had that
right without my calling evidence; that is, I
am told so by your lordship, though I have
been told otiierwise by all the counsel and all
the trials I have ever been at. My lord, as for
quoting laws for the practice, I hope your lord-
ship does not expect me to quote law in a mat-
ter of practice, and indeed in hardly any other
matter, except the law that 1 have learned from
your lordship. I was a constant attender of
your lordship some years ago, and I have ga-
thered from your practice some things whicn I
take to be, and some which i take not to b«

667]

17 GEORGE m.

Proceedings agaitiH John Home^

[66S

inaxims of lavr. Now, in that case I mentioiied
at Guildford, 1 suffered words to go as pro?ed,
whicb 1 could bave disproved — aod there are
gentlemeD in court now who know the fact,
and would ha?e been the e? idences — I suffered
words to go as proved, because I would not

{five the prosecutor a right to reply. Your
ordship directed the jury to find a verdict for
tlie words; and your lorasbip said, if your di-
rection was mistaken (because my counsel had
argued that the words were not actionable) your
loniship told my counsel — (he published a
pamphlet aflerwards : — he was much hurt at
It) you said that what be bad advanced sur-

Srized you ; that it was new law ; such as you
ad never heard before— (be was much hurt at
it; he felt it: be was hurt at your lordship's
declaration: he published a pamphlet after-
wards addressed to your lordship, which I am
inire you must remember).-— My lord, in con-
sequence of your lordship's direction, a verdict
was given against me for 400/ ; and you said,
if you were mistaken in vour directions, that I
had a remedy ; 1 need only appeal to the court :
I had a remedy. What sort of a remedy ? The
expence of the remedy was almost equal to the
verdict. The verdict was set aside, that is
true ; but your lordship knows that a verdict
makes the defendant pay his own costs. I
■bould have had the costs, if the verdict had
iiot been given against me. What sort of re-
medies are these, that are worse than the fair
bonest punishment that can be inflicted upon
the charge ? Therefore I do iotreat that your
lordship will not send ine to reme<lies which I
hardly know how to take ; especially as I have
always found that such kind of remedies from
your lordship are like giving a roan a wound,
and then telling him where he may find a
plaister: it is not a thing that I should uish to
do, nor would your lords^hip like to suffer it.
And as your lordship says that no law has been
quoted to prevent his reply, I intreat that I
may hear from Mr. Attorney-General, or from
yourself, that law that gives him a right to
reply.

Lord Mansfield (to the Attorney-Qeneral).
Go on with the trial.

Mr. Home. I shall hear no reason then
from either of you? Well! if so, I mustsub-
tuii under it.

Attornej/ General. My lord, and gentle-
men of the jury, there is nothing in this case
(unless the behaviour of the deteudant should
constitute that soniothin*^) that can make it at
all different from the most ordinary case of a
plain delinquent in a most gross oifence being
brought before a court of jusiicc. J have looked
round with a degree of examination to see if 1
could see whether there was one amongst the
numerous bystanders that I saw here, who had
conceived a favourable iuiprcs^iiou fi-om so ex-
traordinary an interposition as one has heard
to-day. 1 certainly should not rise to take off
or repel loose slander scattered about without
being pointed «t any one individual particularly,

much less shouM I take notice of that sort of
slander which, affecting to point itself, only
disgraced itself in the manner of that affecta-
tion. For my own part, 1 should think I was
stooping exceedingly below that character and
that situation in the world which I hope I am
entitled to, if I were to set myself to defend my
own peculiar part from anv aspersions that have
been thrown upon me. It is the duty of my
office to prosecute with inte^ity those whom,
according to the best of my judgment, I believe
to be fair objects of prosecution. It is the duty
of my office, as far as I can govern that duty,
to conduct the prosecution with the utmost
clearness and the fullest honour. And if I have
taken a part in this, or in any prosecution that
any man can fairly stand forth, in a manly style,
and challenge directly and pointedly, let it be
challenged, and let me be called upon to answer
it. But to be told that I stand here read v to
take all manner of advantages, fair or unfair,
aj^nst the delinquents whom 1 call into jus-
tice, it is a sort of aspersion below refutation;
and I will not stoop to take notice of it, unless
it should condescend upon some particular act
in my conduct that makes me an object of thai
species of animadversion. Whether 1 am
whether I am not to reply in such a ca
as this, it is, in this moment of it, not
much irregular to advance it, as impossible i
foresee. When I read over the case, when
consider the effect of it, 1 cannot forctel th
slightest occasion to trouble you by way o>
reply : for of all the plain and simple mat
that ever I had occasion to lay before a cour^^s
of justice, there is the least degree of compli ^
cation in that which I am about to state to yo«aj
now.

This is an information brought against Mv«
ITorne for being the author and the origin&:B.I
publisher of tiiis libel. Tlie crime that I puC
most upon is that which I staled last, that Ise
was the original puMi^her of this libel. It is
in that respect that his crime ai^pears to nie to
differ most from those that have been called
into justice before. The circunislance of bis
name being printed at tiie lM>ttoui of the lil>e/
was an additional at^i;ravati(>n in this respect,
because it seemed to imply a holder insult upon
manners and decency, and the laws of the
countr}, than a simple publication of a libel
without that name would have been. It .^ccwcd
to imply this, because, while that name lay bid
behind the printer of the paper, the st(»uiest
champion for sedition could not have defied the
laws with greater security ; for, thoui^h it stood
in capitals upon the front of many thousaoa
pages, yet it was as in^icrutable and impossible
for me to follow, as if the name had nut ap'
peared upon the paper at all. For the rest o»
it, I put it u|>ou the puMication, chiefly b^'
cause that seems to be the whole object ais^^
drift of the composer ot the libel : lor as ^
composition it is absolutely nothing. I do n€T^
mean to speak of ii by way of derogation froi^^
the parts and talciits of the ingenious gentle
man (whose parts and talents I ubver baani

i:

for a LibeL

IB T have done to-i]av) I do not mean
t io deroi;ation of tliem ; no doubt but
hafe writ a belter (hin>jf : but his un-
ig n as industriously let down and sup-
and the vtry purpose of this writintj^
ake it ribaldry and trash. For the
if it was (lis it appears to me) the in-
it was notiiinf^ more than to defy the
juKtirr of the country, proclaiminj^,
e, thus: either punish this libel, or
at there are no laws in the rountry
a libel ran he ptmi^hed. Others have
d vutDcient malice ag'ain^t this conn-
rs hate been anxious enouf^b to ex-
30 ; hut this is written chiefly with
Me of trllinf^ iiuiukind — ** Thus I dare
e insult the laws without havin^j^ any
liin^ to state to the public, except an
Ki the laws." Sometimes a hbel is
hou^h thinly covered fnoiigh) with
ice of informing' mankind, or of dis-
ublic subjects for the use of mankind :
•t even the affectation of giving^ infor-
liere is not even the affectation of dis-
but the writer tells you in so many
nls (of no kind of meaning' in the
t to convey reproach and scandal)
ersons who were employed by the
nt arc guilty of murder; and the
bo employed them con^jcpiently in-
the same (^uilt. For what is the na-
he libel that is published — '* King's
'ern — At a meetiuij: held during an
ent" (1 do not mean to make any
n u()on the meeting durinsf an ad-
I) — ** a gentleman proposed that a
on sboulil be entered into*^^-(thi8 1
It be a device — not a very rich one in
uvention — but a device to introduce
'h followii) '* a gentleman proposed
bscrption should be entered into by
in members preseht who might ap.
.he samf>, for the purjiose of raising
of 100/. to be a[>p!ied to the relief of
s, orfihitns, and aged parents of our
American fellow -subjects, who, faith-
I'liaracter of Encrlishmeu, preferring
liivery, were for that reason only in-
niunlered by the king's troops."* —
by the king's troops ! What kind of
(justitication it is absurd and non-
II Ik of) but what kind of palliation
iven to the charging men with the
nurder, by writing against them in a
er .' Is it to be laid down for law,
f to be tolerated in a civilized coun-
Times of the most heinous sort »hall
mI to men by a public reviter in a
*r, who yet dares not stand forth as
r ? Is that to be tolerated in a civilized
-the writing against men that they are
murder who are not to be accused of
? ? Is it to be tolerated in a country

*. account of this business is exhibited
is*8 Memoirs of Home Tooke, vol. 1,
t teg*

A. D. 1777.

[670

where an orderly g<»vernroent preraila, and
while the form of government subsists, to write
against the transactions of that government, at
ir stained with all the crimes noder heaven, and
calculated for no eaithly purpose but of com-
mitting those crimes ? To suppress liberty (the
only object for which government is or ought
to be erected) to sunpress'that Hberty by the
means of murder, is miputed to the transactions
of the government of the freest country now
under heaven! and it is called liberty to ito
that ! whereas men must be short-sighted id-*
deed, a man must l>e drivelling like an idiot
that does not see that the maintaining of regu-
lar government is the true, the only means of
maintaining liberty. Js it libertjr to pat the
characters of persons, the properties of every
individual, under the tyrannous hand of anar-
chy, and of every roan that thinks proper te
seize them, uncontrolcd by law P Is that li-
berty? And is there any one by-stander of
the most ordinary understanding that hears me
now speak, that has so gross an understandinr
as to imagine that be would be more free if it
were in the power of any man that thought
proper to revile his character, (which is the
linestion which is now immediately sub-
jected to you) or to injure him in his person or
fortune, or in any other manner whatever?
This therefore is not to be coloured, as far aa
I can foresee, by any kind of argument what-
ever. The nature of the libel is too gross to be
commented u|)on; it does no honour to anj
body that baa been concerned in making it.

I shall content myself with proving the fact
of this paper havini^ been written, of this paper
having been published originally by Mr.
Home ; and the conclusion to be made upon
that is too obvious a one, and too broad a one,
for me to foresee at least any kind of difHcultj
about it. It was my duty to lay it before you.
1, charged with the duty of my office, have
brought it here; it is your duly to judge of it.
j You, charged by the oatli that you have taken,
1 are to determine upon it. If you can be of
opinion that this licentiousness is fit to be tole-
rated, according to the old and established lawa
of this country ; if you are of opinion that the
fact is not proved upon the defendant in the
manner in which it is stated by the witnesses ;
it will be vourduty, your oaths will bind you
to acquit him : but if'the fact should be proved,
if it should stand as clear as to my judgment
and apprehension it now stands, you will be
constrained by the same necessity of duty, and
Uy the additional sanction of an oath, to enter-
tain exactly the opinion of it which I have
found myself constrained to entertain. I have
no wish (I did not know Mr. Borne) 1 have no
wish to prosecute any one individual ; nor have
I been desired, if 1 had such a wish, to proaecute
him. And I hope I may add, that no desire
could have compelled me to prosecute a man
whom I myself had not thought guilty, not-
withstanding any thing that has been said od
the contrary side. I go upon the evidence aa
it if in my poaseifioii ; I go upon the efideuce

i

671]

17 GEORGE III. Proceedingt agaimt John HonUf

[67S

at it is iQ my power to produce it. If there be
•By evidence on the oiner side, and if that is
■ufficient to refute tlie imputation which the
evidence that I have to produce lays upon him,
I shall be as ready to examine that with exactly
jibe same decree of candour, and, 1 hope, of
nprightoess, as I have done the present. My
duty is done by laying the matter before you.
Your duty, I am sure, will be done to your
•WD honour and the support of public justice
by the verdict you will \^iye upon the occasion.

Evidence for the Paosecdtion.

Tkomoi Wilton sworn.

Examined by Mr. Solicitor General,^

SoL Gen. Look at those papers. (The se-
rtnA Manuscripts from which the advertiso-
ments were printed in the newspapers. The
witness inspects them.)

Do you know whose hand -writing those
fapers are?— They look like Mr. Home's
liaod-writinff.

00 ]^ou know Mr. Horoe? — I have seen
him write.

Do you take these to be his hand -writing^?
—They are like his hand-writingf. 1 will not
upon mv oath say that they are bis baud- writ-
ings ; I believe that they are.

(The manuscripts ot the two advertisements
read in court.)

Henry Sampton WoodfallBwom,
Examined by Mr. Wallace.

What business are you ? — A printer.

Do you print any newspaper? — Yes.

M'bat paper? — The Public Advertiser.

Mr. Wallace, Look at these two papers
(shewing^ the witness the manuscripts of the
advertisements. The witness inspects the ma-
nuscripts.)

Have you ever seen these papers before ? —
Yes.

When did you see the first of them ?-— About
the 7th of June 1775, as near as I can recollect.

By what means did you come by the sight
jof it ? — Mr. Home, the defendant, ij^ave it me.

For what purpose? — To publish in the Pub-
lic Advertiser.

Did you accordingly publish it ? — 1 did.

Had you any other directions from Mr.
Home? — Yes. He desired me to send it to
several other papers, which I did.

Do you recollect the names of any of them ?
—The whole, I believe, of them ; I cannot ex-
actly recollect.

Did you follow his directions? — I did.

Was anv thiner paid for it?— Yes. Mr.
Home paid the bill.

For the publication? — Yes.
Mr. Wallace. Look at those news -papers
(•hewing the witness the Public Advertiser of

* Aleiaoder Wedderburo, afterwards earl of
Boaslyii, and sooocsiivaly Chief Joitice of C.
S. and Loia ChuoiUor*

June the 9th, and of July 14, 1775. The wit-
ness inspects newspapers.)

Are those papers published by yo« ?— -I print
that paper, and 1 auppoee they are.

Cross-examined by the Defendant

Mr. Home, I am very glad to see yon, Mr,
Woodfall. I desire to ask you some questions.
Pray what was your motive for inserting that
advertisement?— Your desire.

Had you no other motive ?.«-l was paid lor
it, as the advertisement is paid for.

Pray was it by accident, or by my desire,
that there should be witnesses to see me write
that advertisement ? — By your desire.

And did I, or did f not, formally, before that.^
witness, when called in, deliver that paper ai^
my act and deed, as if it had been a bond ?
Yes.

It is true, I did. Did I not always di
you, if called upon, to furnish the fullest pi
that yon could give ?— You did, Sir.

Now then. Sir, if you please, say whether
have ever written any thing in your
paper before ?■— Yes, ^ueotly.

How many years ago, do you think ?— '
first renoarkabie thing that I remember,
something about sir John Gibbons, aboot
mistaking Easter for a feast or a fast.

How long ago is that ? — About the y
1768, aboutthe election time.

That is about nine years ago ? — Yes.

Have 1 at any time desired you to screen IB9
from the laws?— No.

Has not the method of my transactions with
}rou at all times beep, that you should at all
times, for your own sake, if called iipon, give
me up to justice ? — Certainly ; that has always
been your desire.

Pray, Sir, were you not once called upon hy
the House of Commons for Rometliiiig that I
wrote in your paper ? — Yes, Sir.

Do you remember that I did or did not, wheD
I took care to furnish such full proof of thif
advertisement, give you the reason for it?— I
cannot say 1 recollect the reason.

I will mention it. Whet her was this ibe
reason ? That in the last transaction before the ^
House of Commons it was pretentled they let i^
me off, because they could not {^et foil evi* ^^
dence. Do you remember wliether I rehearsed i J^
that or not ; and said, that if they now chose 1^
to take notice ofthis advertisement, they should |^H
not want full evidence?—! do recollect thit
conversation.

You remember that was the reason I gare?
—I do.

Will you please to look at these newspapers?
(shewing several papers of the Public A(lve^
tiser to the witness. The witness inipect*
them). Do you know these news- papers f^
I do.

Do you believe tliat you published themf"'
I do.

Look at the dates. I will call them over to

Jou from a list— May the 30th and the 3U^»
una the 6thy the 9th, the 10th, the ISHh, ^

^

»■«

87S}

jbraLM*

A.l>. in%'

[«74

15th, ud Hie 10tb, 17^5 f^I hare looked 8l
the ptnen : tbev are all of m j publieatkrD : the
date ur one of them I cannot make out; it if
lane aoroetbing.

We will go on — Jnne the 3l8t and tbe 37tb,
1775; then there is January tbe llth, Fe-
bruary the 8th, February the 7th, the llth,
Inne the 9d, and June the SOth, 1777 P— They
ire likewise of my publishing.

Pray, Sir, do you recollect the contents of
the paper of May 30, 1775 T^No, upon my
■ool, I do not.

You are upon your oath. — I know that in-
3eed.

Read that part (pointing a part out) ; read
Tom ** In proviDcial congress, April 36, 1774,"
Sown to that part (poiotinic it out).

Mr. Wallace, The officer sminld read it;
tliongh not now. You will be intitled to read
t, wbenyou come to your defence.

Mr. aorne. Pray do you know Mr. Arthur
Lee?— Yes.

Did you ever receive any account from him
*clatjTe to the persons who were killed at Lex-
LBgton and Concord f — I really do not recollect.

Do you recollect that you erer published his
same to an account? — I think I did ; rekting
he bis agency for some coIodt.

Look at that, and see whether you remember
kliat, and how you received it? (Witness in-
•petrU Public Advertiser of May 31, 1775.)—
Yes. 1 think I received this from Mr. Arthur

Pray who was Mr. Arthur Lee ? — He is of
Uie bar. 1 have seen him in Westminster-
kail. He was there at the trial of Mr. Wright
the printer, upoo this very affair. 1 believe be
wu retained there.

Pray was he retained in your cause when
yon were to be prosecuted for this advertise-
hwat?— -Hewas.

And why did you retain him ? Had you any
partieular reason ? — I presumed he knew more
•f tbe subject of the advertisement than I did.

Did he ever tell yon any thing upon the
iQl>|ect?— We have had private conversation
tsgftber as a matter of news.

Did he ever tell yon he had lodgeil affidavits
Whh tbe lord mayor of London ? — He did.

Sic, did you ever tell me so?— I do not re-
collect

Pray when had you, for the first time, any
■otice of a prosecution for the publishing of
Ibii advertisement ? — Al)nut two years ago.

Pray did that prosecution go on ?~No.

Do you know why ? — Yes. 1 let judgment
|ft by default.

The fiMt time? — I was never called upon
lill last January.

It began two years ago ; and yon were never
^lled forward \ipon it till last January?— I
thiuk that was al>out the montli.

As near as you can recollect ? — Yes.

Wheu were you first applied to, or were you
*ver applied to, to be a witness in this cause?
**! was not.

You never were?— Noi

Ho# enm^ yon to be an evMMiee f — 1 b^rd
Ibat If I oouul produce my author, tnattetil
might be better for me ; and as you hM ntl
sort of objection (which you told me M tlM
time) 1 did of course produce those copien that
appeared there to Messrs. Chamberlayne and
White, the solicitors for the treasury.

Should you at any time, if ?ou had beeil
called upon, have declared that I was the an«
thor of that advertisement P— Most certainly ;
fbr you desi^d it.

Ami would have given your evidence? — Yefi

Whom was the application made by? — U
was no aort of application at all ; I beard of it.

By whom ? — My brother.

You never refused tofurniab evidence againul
tbeatrtbor?— No. ^

Yon never were applied to, todohf-^N^t
I was not.

You have said that I nerer desired you to
conceal me from the law for any thing ybik
pttblished from me. Did you ever reeeive anjf
letter or meaaage from sir ThomA Mills i*
your Kfe ? — A private letter I have.

But did not that pif vate letter relate to th*
public paper ?— Never.

Did you never receive any message not to
insert any thing in your paper about lord Mans-
field's earldom ?— No.

Upon your oath ? — Upon my oath, to tb^
best of my recollection, I never did.

From any quarter ? — ^No.

Sir, were you ever sent for by lord Bute f-^
No ; I never saw him.

Were you not oent for for inserting u peral^
graph about tbe kmg's marriage ?— No ; 2 ana
not consulted by Um higher powers, 1 tssure
you. ■

If I had tliought you were, T net^ shoUlA
have trusted you : i do not think you are.-^
1 am much obliged to you for your good opi-
nion.'

Mr. Home, I will give you no more troiAle.

William Woodfall sworn.
Examined by Mr. Walleee*

Please to look at that paper (ahewing tbto
witless the manuscript of the adrertisement.
The witness inspects it). Have you seen that
paper before ? — f have. f *

When did you first see it ? — Mr. Home de-
livered it into my hands in my brother's compt-
ing-house on the 8th of June^ to be inserted in
the Loudon Packet and Morning Chronicle ;
both which papers I print.

Was it accordingly inserted in those papers f
—It was.

Look at those papers (shewiAr the witness
several papers of the Morning Chronicle and
London Packet. The witness inspects them).
Are those papers published by you? — ^They
are.

Cross-examined by the Defendant.

Mr. Borne, Mr. William Woodfall, I will
not repeat all the same quetitions to you. Did
you ever receive any — "— -'-^ » •»--

C75]

Your

17 GEORGE HI.

iiwer is or (be rjuicbeit Hkd you

hear the question? — I |ire*uTne jron

ii> nsk Ihe Mine i|iin.tiiin you put to my

; u you laiil ■□ emphuis upon Ihe word

taire,

or ilenire, or m|UF«t, iifmny kir
ner, not lo inserl any ibioif in your pi|i«r reU-
'()•« to larit ItlaiicfifM'* earldom, on jour oatbT
•—On my uilti, 1 neter recei«eil any letter.

Messagp, or requral, of any biuil, io any
pnauner, Mir, Trom air Thomaa Alilla, I aik
you?— No, I iliinkniit.

Vou Qiuat be ■ bitle tnor« p4>nti>e, becauEc
my qiirntion mil not admiiot a ' tliiuk,' — 1 ilo
IMt ruculkcl f did.

Tbeii take a little lime— I don't rerullect
Uul I did. I bnxw very well, ihni aume per-
>on or o'ber, once, mei)tii>Dr<l it in rae.

Tliat ia an applH-iiiiiin. To mention it lo

fou la ■ aln)nK<'r applicHtlun thau a teller. —
had some rouveraaiian about it. I dim't re-
collrcl thut 1 WBt dfsireil not to puMisb it.

Was il In rrqupst ynu not lo inicrt uuibl or
may lhm|[ ?_l recuUeci I M insert it.

What? — Lord Alan^ibeld's promolioo loan
•arhlom.

What «u Ihat appUcalion ? That you
' w-iuld' ioKerl paragrajibs sUoul it, or ' would
sot' ? — It was a convvraatiun, not of the nature
of biuinem ; nor soy exprrai detire lo me ;
some (uotcrsaliuu, as migbt be belwees two

Upon your oaili, you bad ne'er any appli-
cation 10 omit iaaerling any thing ot'ihat Liod?
•—Upon my oath, I don't recollect Ihdt I bad.

Norbiiveyoueier aaJd thai yon had?— If
1 don't recolfeci that I received any applicaiiou
to keep oul any thing reldlive lo ii, 1 conie-
quently csnunt hate sjioken of it.

l>id yon, or did you not, ever speak of it 7 —
>Joilhatlnmawjreof

But you will not twear noMiitefy yoo Deter
did ? — I had DO direct appliuaiion to me to keep
out any Ihiog.

' Direct' — My qunlion waa ' direct' or ' in-
direct,' or of any kind.^Iiuean loaniwer 'di-
teci.' I don't recollect that 1 was erer applied
to, Id keep out any thing ; or that 1 eiCT aairi I
vai applied 10, to keep out any thing.

More than that you cannot recollect F — No.

[The A^sneiale read the adiertiaementa io
the ceTeral papem that had been proved and
put inio court on Ibe pari of ihe prn»ecutioa.]

Alt. Cen. My lord, we have done.

Hr. llorne. GeotlemeD of Ihe jury ; Ism
much bapiiier, i[entleineu, io addrviaiiig' my-
self lo you. and I hope and beliete I ahall b«
much more tbrtunate as well aa bappy, iban
in addreaiing mynell' to the jud^je. i have
been betrayed, genileoien, I hnpe, into no un-
■eeinly uarmlh ; hut yet into eome warmth,
i ha«e tell myaelf hke • man Grat put into hot
water ; but I liaie non been long enough in il
lo b« perfectly cool. Aud, ([entleniep, lome

againit John Home, [679

small allowaocea roii>bt have beea nude fi«
me by my jodge who preiidea upon ihia caua^
when he coniidera Ibe peculiar diisdiBDiaga*^
in which 1 stand here betiire him. Geiillemeib
1 am an absolute novice in these matters ; bM'
yet opposed to gentlemen some of Ibe moalemii
neat in their professinu, sod some of ihe motfc
conversant in practice. But Ihat ii not all; T
bare a farther disailTaoiage. I aland ber^
genileroen, before you, a culprit as well ■■ a
pleader; personally and very materially in-
lerented in the issue of Ihe cause which 1 ban
lo defend. And every geotlrman in the court
must know — (some perhaps by iheir on
perience. all by ibe reaaon nf the Ihing)-
*ery different la the Eporlfiil ciimbat will
from ihat which is seriously disputed itilb
baled swnrds; and how frequently Ihe flull
iog of ihe heart, in Ihe latter siluaiinD, ha* '
known to enfeeble the steadiest wrist, as
dazzle Ihe clearest and motiqnick-sighiede]
Gentlemen, I have read even of cuunael,
neni In Iheir profession, cooiersant in praeli
approved anti sp|dauded for their ingenuity
the defence of others, who, ubea Ihey car ~
slaud in the aame ailualion io which I
sland, have cnmplaineil In the Court (and
with an indulgeuce which I bate not), ll
ba*e cotoplainrd to Ihe Cnurt of Ibe aame i
adsiolage which I now frel. GeDllemeDi ^
ba»e lialened lo Mr. AtlDrney -General's decl**
mition with as much patience, and, I beliere^
with Oiuch more pleasure, than any one in tb«
cnuK. That pleasure I do acknon ledge was
personal lo myself; arising from the futility of
Ihe support which Mr. Attorney-General hae
attempted to gire to the serious charge wbicfa
he has brought against nie ; a pleasure, bow*
ever, mik:ed wiih some pain, when 1 consider
Ihe wretched times at which we are arrised ;
when s geullemau of bis uaiural asgacily ia, I
own, jusiilied by recent expenence for aup-
poaiog il poKsibJe lo oblain from a London jucjf

a Terdict tor the crown, Ujion a mere coir

place ileclamalion against acandal and
cency in general, withnul one single syllanie i
reasou, or law, or argument, applicable m thi
particular charge which lie has brought ^ai«
nie, anil wbicb you art^ now upon your o«ll
to decide, tieoilemen, you know, as Weill
I do, that I am personally aod io all re*pe«
an abwlote ilmoger to every one of you.
am glad of it. I do not expect or deaire Trfl
you either friendship, or farour, or indiitgeaa
It is ynnr duty to un impartial justice, ami
only request yanrBltention. I began irilhn
qoealiog il ; aod I requested your allentiw
ihfit ynu may be able lo judge for voarKin
and that the verdict which you ahall £iT«<
personally as il respects myself it is totally 1
different W me— but thai the terdict whii
you shall give, may be really your own, •■
ought to be, and not the judge's. That is ll
only thing I request of you, and I requeal j
because il is your duiv and your oath.

Gentlemen, ai for ibe charge ibat is braug
againat me, you cannot b« ignoratil that J n

en]

for a Libel.
ipardoDiblt crinie

liiugtA with the only

wbicb ean, at tliU time, ue coiumiiieii. i bid

Meiian) of a libtl-

Hnnler and (odomy, you koow, haie in
Amu out 'lays oftbn I'ound succesal'ut solicitors ;
ud the lawt aguiosl pn|>ery (Itiuugh nnre-
pciled aod in lull leg^l force) art, when re-
■nud to, ibought, by ilic maj^iilrale who pre-
|M«a hrre, too rigornuii to \ie guffered lo httve
Ihcir ftce course ai^iiisi a reli^oo so deitruc-
tmoTlhe ci«il riubii o( maDkiud, aad lo la-
Toarable to aUnduie and arbitrary ])o<ver. Bui
whiln thai has Wen laTuurtd beyoiiil the laws,
iuibiii|; Iwyond t)ie Hwt has been Ihnuglit ri-
piraui aud (Tfere eoouijh aj^ainsl the charge
oflilicl. Murder, attended with the muni ai{-
(ravaiing circuinslances, hw lieen rfptiaiedly
pariloned ; and treason, the blackest Ireasnii,
•jiaiait lh« family on the throne, and (whnl is
of much more consequence lo us than any To-
■aily) almost llie Tree consiiiution uCihis cnuu-
Irj, tiu been iint Only pardoned, but lakfl

tiidlhe.

'5 har

«m«* the hi|;heNt niountsins of iniquity, has any
one or yiiu pter spieil ihe stiiallest tiiulei de-
s«vuit>n)| Kiwanlt the valley of the hbellerP
UasMiiy inanctiarffed Hiih a librl (and what
hBBMDMU charged as a libel?) — has any man
a«ebar|[ed eier yet met with ineri-y F (ieiitte-
Eo, I da not call lisck a^ain these things lo
Mr remembrauce in order lo arraigii ihi'in ;
It i* not my ^eteni huMiiFM : I only men-
n Ihem to cain lr»m you, llie only thing I
with, your attention. You wdl hv pleased then,
rMtilrineii, -js one motive Inr your atlenlinn, lo
■emroilwr the nature of Ibe crime charged.

Gentlemen, if the ttatiire of the crime and
l)w THficuur with which it ia pursiieil, if that
strong resson thr your jiarticular cau-
care and aiienlinn in ihissnrl ol't'ials,
ft lB<tch stronger reasiin i'lderd uill he aRurded
— 1 bj liie nature uC the picnecutiuD, It is
ffl an inl'-noatinD ix officio.^ The term ex

r. Huriie'i mention of the resloraiion n(
■lea "f ci'Ovicl Irattora alludes 10 ihe
'if'-iivrsl Fraser, i-ldesi sun of lord Luvni
IS rxeculnl in 17 16. See ibe proceed.
xinst him, vol. 18. p. 530. Iliee, alHn,
; 14 O. 3. e. %-t ; S4 U. », star. S, .^. 57 ;
). 3, «. 63.
^In tbecHehnled 'Letter,' wbicb has heen
~M V) Loid Chaucrllor CmiHlen, an<l nlin
r. 8»licilDr General Dunning, ' ruiiceniiui;
Warrants, llw Beisure uf Pap<-Ta, ami
a for Ihe Peace or Behaviour, tie. by
leFxher of Candur,' are alleKed with t^tciil
r many objeciiont B);iiin«i ihe Atlomey
9, of which ihe
, n my apprehen-
I, *ety alarming; and a thinking man can-
Mat refrain from lurprise, thai a free peojite
ilMid mtfer to odious a prerogative lo exi^l.
U bM fctw, Kid maj most ceriBinly be agBin,

Graersrs latbrtnatioi

[6»

t tt lu you. wlim be boasied of hit
i:e, and his intrgrily, and duty ; for it

Ihe mpaus of great peraecutioD, In iruth it
seems s power necessary fur no good purjiose,
and capable of bein^ put to a very bad one.
For, although a man may doubt ivheiber ■
grand Jury in liiues of violent party would
always liud a bill of indictment or present, yet
there can be none bui that a court of Kiog's-
beuch would grant an Inrormaliun, wherever it
cnnld, by any adtniuiHtratiOD, be applied for
with ihe least Ibundatinn."

Aud in another place he says, '* The prero-
irative which an Attorney- General ansunies of
tilinit an lalnnnalion against whomsoever be
pleases, is certainly a reproach to a free peo-
ple; and if the regular iiiformaiion awarded
tinon special tiiotion by the Kinu'a bench wera
hkeuise taken away, I do doI think thecon-
nlituiion would lie injured by it: in which caM
the uld common Uw methoil of indicting tor*
libel, as a violation nf the peace, would be Ihe
means thai every Ixidy must resort to; and in
my opinion a grand jury are very competent
and the propcrest judges, whether any puhli.
cation lie dextructive to the w etiare ul the state
or not." And for ibis last clause which I bav*
cited, he refers to llie valuable treatlKe upon
Grand Juries, called, > The Sfcurily of Eng-
lishmen's Lives,' atiribuied to Mr. Soianieis.

The attempt 11 ihe lime of ihe Hevolulion 19
lake away Infnrmatinns in the court of King'**
bench, ia noticed in the ' Letter cnnci-rning
Libels, Warnints,' &c. ; bui I had not the pas-
sage in iny reculleuliun when 1 wrote the Note
10 Ihe Case uf sir William Williams, tol. 13,
p. 1360. In the case of Rex n. Mary June*
and another, mentioned in that Note, the vexa-
tious ojieralion of the Altorney-Geoeral's Infiir-
malinn was, that it caused two poor Welsh
persons, cunviciedof aminoroflenceagniostlhe
revenue laws, to come from the pi incinalitj
to the bar uf llie court of King'n-bench ul West-
miuslrr, in order to rt-ceive Judgment, which
would have been passed tipon them iu llieir owa
neighbourhood, if the proceeding against tbem
had been by indictni'-ui.

In (he case of PhilippB and oihers, Tn'n.
4 G. 3. U Burr. 1Sti4, lord Hunstield declared,
ihat ihe Cuiiri wouM iievr grant an Informa-
tion upon the appticaliaii of ilx' Atlamey Ge-
neral, in cases prmeculed hv the vmwn; be*
cause the Alt omey- General has o right hini-
selffT officio 10 Filiibit one: and in the same
case lie »aid. "ihe Atlorney-Ueoeral may, if
he think.* proper, suinmoii the parties to vbe^
CBitae, why an Inforiiistloi) should not be ex-
hibited, before he signs it."

And in the caie of the King t>. Wjtllani
Davis Phillips, esq. Pasrh. T G. 3. 4 Iturmw,
9069, Ue Grey, Attorney -Gen era I, having (on
the pan of the crown) moved for a rule npon
the defendant lo shew cause, why an lolunaa-
lioQ sbotild Dot be yarned agaiiut biia, (b*

. ?79]

n GEORGE lU.

u cerUinly so]— m o^io meaoi, tbal wbleh
lie don froin a aeuse ul' duly, ir in this yoa
iyniidi^r only jast what meets ibe ear, Ihere is
lio liBtin ID i\ ; il is a gooU ltua]f : iluly h &
good lliifif . But ir ^ou examine tbe real furce
(ind ci'iike^npiiceii ot Ibe term, as bi^rc upplied,
jrou will bad il ta coDlaiii ef cry ihing tbat cud
be itDugiurd illegal, unjusl, HJckeil, anit o|i-

SresBiTe. Fot ni,v own part, I am utuiiisbed
lat Boy iDBD, at this lim« uf day, exercising
■uch powers as are not according lu law, and
are mucb lesB according to reason, sbould talk
io jou, with an open face, of inli^'rily, of ho-
tiour, of duty, ofconacieDCe ; aad that, im-lead
AfBegravaliiig aud sheniog you in ivhst ibe
char)(e ivbicli be has brout^bt again:,! mi^, in
whal my crime consists, be has employed baU'
fcia barangne in Loasliu)^ of bis uvrn cliaracler.
ir any man in Ibe court who had not known
fbal 1 was ibe defendant bad come io at the
time ibal Ibat gealleman was talking nf bis in-
tegrity, bis cuQscience, and bis duty ; I auk.
would be ruil immediately bave concluded that
Hr. A tloroey- General was ibe defendant tben
making bis defence P He must Let tbe gen-
tleiitau'i lulegrity and honour be as grcstas be
tetlsyou itis; wbul baa Ibal to do niib me P
Wbal has Ibat In do with tbe change which be
bas broughl against me? eiccfit indeed this;
thai, having notbing really Io charge me wilb,
pe sets up liis own ^real, lumnculate cbaracler
■u oppoaiiJDD In mine; that you may gite a

Proceedmgt againtt John Home,
Terdict against me, berauK he i« i

Ibe A Homey- General ibongbt it right, ibai ati
InforruBiion shouM be granted, lie migbt grinl
h himaelf i if he did not think so, he could not
crpecltbe Court to do It: and lord niansfSeld
Uid, •' If tbe AltorDey.Geoergl should have
any dnuhl about ibe propriety of it, he might
iend Io tbe person complained against, to !ibew
Iiim cause why he should not grant it."

Willi respect to an Attorney- General send-
ing to a perKOD to Ehew caiuic why an Infor-
Jnalion should not be Hied agsinst him, see
, what was said in parliament upon tbe conduct
of the Attorney -General of Ireland in the case
ofPilzpairick, ad. 18IU, 33 Purl. Deb. pp.
99G. 998. 1081. 1086, 1CS7- 1111, tt K7.

For more concerning the Infnrmalion ez
^cio, see the Case uf sir Wilbam Williams,
Tol. IS, p. 1SG9. See, also, 16 New I'arl. Hist,
pp. 40. 1137. 1175.

Mr. Hargrave has, more exteusitely than has
•ytt appearrd in print, investigated the subject
ttf the Information e.c officio, as well as that of
Ibe ejiamioablcness of commilmeuts by a tlonso
nf Parliament or Court of Justice, for cuntemjil
or breach of privilege. 1 1 is Io he hoped thai
Uie result of bis investigaliotiB may be made
pubhc.

See, also, diitinctioos an to the rights of ibe
Attorney. General in mailers of prBCii(»t when
Be proceeda for l|i« critwu as format prose-
cutor ; and when he prore^ds for the cronn as
actual prosecutor, iu S Slra. 316, (cit. Tol. 17,
p. 3I1J, audlBurr. ijlMf-

d that e.r offieio eonlaincl
IS illegal, unjust, wicked
I will prove it to you. £|i

tow

nour, an uncorrupi man, a pure mao of intai
grity, and would not charge ne, if he did oOf
ibink me guilty. Let him think what ha
pleases ; if yuu do not think me guilty, I cae||
very liille wbal he profeanes to ibiiik. I kn»it
that he is manly enough ; and I honour thai
part of his character. He bears a mail's bean
in bis bosom, and (though bis office has mwit
bim bold tbe iMiguage he does) I defy him n«^
to respect me. I know be does. I am sut^
olit.

Gentlemen, 1 siid
every thing that was
and oppressive ; and I

o^ciu— (a liille specimen of il you baTescen}^
ei officio means a power to dispenae with aO
the lurms and proceedings of Ibe courts uf jtu^
lice, with all those wise precauiions which our
laws have laken lu preienl the iuiioceni Iroai
being oppressed by exurbitant and uiifuU

Gentlemen, I was llirown olTmy guard. I
OH'D I was. I bad prepared an argumenii
which I believe bis loriUbip perceived: b*
therefore granteil me wbal 1 iolended to hav*
iulbrced; and, hating granted it to me, thai
grant was made use of to pievenl we from
gaining any argument in tnawer, ol'anj' kind.
You must have taken notice uf it ) ii is yoar
duly to take notice. Juries bave been loa
much considered as men out of court ; anil
when an apphcaliun has been made lu the
judge to determine upon a puini nf law, ib*
jury has been considered as having nothing to
do with the matter. Nu more they bate, in-
deed, to decide il. But tbe jury has this to do
with the matter: Ihey aie to make a true de-
liverance ; and they will see and will judge
whether the defendant has justice done Itiin
or not, even in the practice of the court. I
know nolbingof tbe law : I am not sorry for
Ibal: this is not a queslion of law; and I am
happy Io bave Mr. Altorney-Geoeral's autlio-
rily to say, that it is " the plainest, the siiu*

E lest question ; and that it was too obvious fui
im to foresee adifficully inll." Hesaid. itwat
" the pUiinesI of all ibe plain and simple mat-
Ifrs thai were ever laid belbre acouri;" and
being so, you are the best jodges of it. Afl4
indeed the nature of a lihcl always makes a
jury tbe best judges of it; fur a lilwl (if il b*
m) is intended foi- miMhief : it must therefore
be inlelligible to the people, or no mischief
could be produced by it. If a man writes a
lihel that a common jury could not undernaud,
(aud you are a special jury, genllrmen) ha
must tail in his design. Obseive iheu, grallc-
men, this adTerlisement is Ibe plaiiieht aud
simplest uf all the mailers that were ever laid
before a court io which the Attorney -Geaeral
UBS concerned : and in ibese two yeun and a
quarter Ibal be has bad Io bring it to trial, faa
has not been able to see a difficully in il; aarf
yet he bs> had a special jury lo delenniue tl ;
a commoD jury could not.be left 10 delcrmin*
it: and (ball will ezplaiaWjaubuufuti I

JiiT a ImkH,

VTvy veil, that not only juries, but many

other penNoit wbo apply ef en lo tlic praciiue of
the la», never trouble itieir bead* lo inke inl«
GOiMMlerMion allof el1i«r the epurniou!! wkke4-
nn* of ibe imwcri cJaitneiJ in ituu »nfl ol' [iro-
aecutioD. Il ilioll he my buiiness therelbrt to
«x{ilain it to yun. You fhall judge of the ho-
Buur, anil integrity , ■nilcuUBcienoenftlusgcu-

tFD whn UK lliHiii and eujny tliem.
id, finl of til, an iolorinalion mrans no
idiaa an accusatiuo. Ap^teaj, inilicirneni,
nwlktn, are, as I take il (sihI 1 ahall hi
eted if I am wrong; it will be well cor.
J bulb by tbe Atlurney- General and Uie
Itidge) — I take il ibey mean uo inure ibati ac-
cuMtKin ; and Ibey have a ililTerent specific
name lircauae orihe different maiioer in wliicL
Ibal aecuMlion ii brought liirwnrda, Th«ii,
ffroUeoieii, ihi* ia an accunatiun by duly ; oul
ulduiy: and by this ineaos, by ibis his duly,
}hc AllOruey-CIeneral is enabled, contrary to
~' ~ 'iwanl'tuelaad, lu accuse w bum lie pleases,
|fbai be pleases, and Hlien be plesaeR.
^he pleaset) lie nnly accuses llkem, and

■ brin^ it to trial : he guea on barassini^
pbjecl wiib inform ulioii upou jnrormatioD,

■ fleaaea, and never brinics ibu man to
If, biiwefcr, out of his mercy, or oul of

Nttment, be iluex cbuse ai U«i to briufr
Irial i wby, genliemea, he, in general,
llbjr whom be pleuaes. Gentleman, when
~ ea to trial, he trie* it iu what manuer be
I, he takes wbat adTtutages he pleases,
be eiveu I'lir those advan-
I (•entleinen, during the cuurae and pro-
»f tbe trial, il', 11011* itbaland in g ihose ad-
B baa al(>-ady taken, be aeei anine
Mpcct that the rcrdict i* likely to go
), ba dainia a right to stop it if he
I, willtuut any ilecitiun ; for be claims a
(i«hi to wiibdraw a juror, aa il ia called ; ihal
uioaay. You ahall uol come on lo a verdict.
Tbe Atlnrtiey-Genvral muil not deny it, unless
Udeed the practice of the Court i* cbauged in
Ikat particular.

Tb« practice of tbe Court we see does sooie-
li»ci clisnge ; for I have it oovr from the
Ja4((, that iu all eases the jirasecutur bus a
ti^ to re|ily 1 whidi truly 1 did nut belure
%»k in be tbe practice ; but, bowrtrr. tbe Bar
Miiake uolii^ now ; for tbey wid smiu have
(UN ID whicb they may enjny that bcnetit and
tritil«((e, il it be one ; the proaeciMar baa a
iifhl ID r«ply, even tbougb uo erkletu.'? ii
taHad lor the iMouilsat. I altnlt aee mms
■M« iMW lUTlboda of pruceeding in Inula ; I
^a seen a good many. I tbink Ibere mum

Mas with ■pLTitBuaugb. — suuu; gi^nilaiwiB or

Inuov I hope ihere are, wlwi will (ufmii
bI wMra tbey niaji be (irnsecuton), who
s U>Bl aillaillag* that has liecu allowed
mU viH O&r m reply where aned-
iwlhij 'I'bere w<r« sime ball' wonta
' drapiwd al»nl xiaitar ul' law, but 1
ilin»beBBd«(il*)n.
i-kuif.Uw.A»>miej>-0«nc>ltlo»Mil

A. D. 1777.

ffiSS

■lop Uie cawe triihnut coming lo a deciiion,
bill thinks be ahall get a verdict in bis ow«
favour, and iheielore auflers tlie cause lo ga
on ; if be loties ibe verdict, be suiTers noue of
ibuse displeaxiiig iM>oae4uencea which olber
Dieo mull auffer ; rvr the i;rt)wn pays no coals—.
linnaat all: — he can pniaecule aa ofleo as bt
(deases, and wbmn he pleacen, and paya ■•
cults! Out ihal is uol all. Muppoie be baa
f^inrlclrd sis, bcven. or eight men iiir tbe saoM
oSeuee, he exercises the sovereign power of
pardon ; be calls to judgment whii'h of tbem
be pleuea. and leis go by wbidi of ibem Ii«
pleases. It haa huppeaed in tbe proseciititn
iiir Ihis very paper: — out of Several cuaiicu^
but ibiee have been called up to jiiitgment.
Tliat to aome part 1 shall explain to yon. BtK
Ibst ia not all : the man or ibe men whom h*
Cilia up tojudgmenl, lie, llie pruieculor, ag.
gravaies their punisbinenl a* Ite pleaaaa; »a^
that I will prove to you. Iu Ibal, I Ibiuk, J
ahall not be conlradicled, becauae 1 have ibc
aulboriiy of Ibe judge who is uow Iryiugtbas

So tlial in every stage of Ibe busineaa voa
will fiod that there is an uojual, an illqal, a
wicked, and an oppressive adrauiage. And
that you may net think that 1 am ileclattning
wilhoiil any pruufs, I will bo far trespaia ii)Hm
your lime as to coiue a bllle more to parti'

Aod firat, gentlemen, for Ibe beginning of
such a prosecution. He brings it on aa ha
pleases; he bas no resort to a grand jury, vt
Ibecoiiniry Iu accuse; but, contrary toexprest
law, and what ia much stronger, contrary M
the tlrangfist sad tbe very fundamental reHoo
of tbat law, be has no recourse at all u> a grand
jury ; and tbat beosnie il ia tlie preleiided suit
of the crown. Now, genileiiien, if we waM
10 eQi|uire (wbicb is not ofien done, I know,
iu court* ol Justice) wby any gi'aud jury i' why
a grand jury at all? It is not owing lo lUa
oalure of the iilTeave; grand juries are id
capital ulTeiicea and in sioall nffences. Wby
are a grand jury to find the accusaiion ? for
vou must luit be Ird away by technical leriM.
Inl'orination, appeal, iudiclioeut. all mean OM
and the ' " ' ' '

Tlien why Bgrand jurv? I would lell ynn
in my own words, il 1 liatl nut ibe wonls of
a (lermu more to b« reliecl upon. Sir Jobn
tUwlensay* — these are Ins words — "Tbetrua
reason of a grand jury — "

But, genikiiuen, I aball jiiat obviala an ob-
jeetioQ firai, because 1 shall not have an op-
pi)i«untiy slier 11 is made. It may lie objeoitiii,
ihat i bute take!) ihis from Ibe :*ute Trials;
anil I ba*e beard from tiie beueh tbat the S[aM
Tnsls are no aulboriiy. I bave aUu beard
I'roHi an ufKcir >ery high in the law, atiJ of
very great ai-knowleilged abilities, who ajts by
Uie Side of tbe Atlamey-Geaanl, tbat lUcy ate

683]

17 GEORGE ni.

Proeeedingi againtt John HonUf

rflu

ft mocli better aatbority (1 fpeak it beetnee
1 heard bim say so) that they are a much
better aothority than the scrawl of a Dame-
len Reporter. But I will tell you why the
Bute Trials ia certain cases are the best ao-
thority ; and thatgis, for this reason: becaose
they are equally good authority, whether what
Aey relate is true or false. It is a strange as-
•ertiOD, but their aothority is eaually good for
the purpose for which they are brought, wher
thef the things they tell are true or false, t
hsfe heard them called from the bench (and
called so for very good reasons) " libels opon
the jud^."— '' The State Trials are so far
from being an authority, that they are libels
vpon the judges.'* — ^Are they so ? Then they
are stHI better suthority than if they were true ;
that is, authority for the purposes for which
they are brought ; that is, for the condemna-
tion of the wioced doctrines which they expose.
For are they libels upon the judges ? Was the
intention of those who wrote them to blacken
their characters? Would the libellers then at
that time of day (some a hundred, two, or three
hundred years back, or according to the length
of time) would an enemy hare put into the
judges' mouths doctrines which were honour*
able P No ; if he intended to libel them, be has
falsely made them the propagators of those
doctrines which their souls abhorred. Can
there then be a stronger evidence abo|it the
opinion which men had formerly concerning
these doctriues? If there cannot, then there
can be no stronger autliority against the doc-
trines exposed by the State Trials. True or
false, the State Trials are the l>f st authority
which can be had ; and better if they are false
than if true.

Then, gentlemen, 1 will proceed to my au-
thority : ** The true reason of a crraud jury is
the vast inequality of tbe plaintiff and defen-
dant ; and therefore the taw has given tlits pri-
vilege to tbe defendant on purpose, if it were
possible, to make them equal in the prosecution
and defence, that e<|ual justice may be done
between both. It considers that the judges,
tbe witnesses, and the jury, are more likely to
be influenced by the king than by the defen-
dant : the judges, xs having been made by him,
and as it is in his • <>wer to prefer or reward
them higher: and i hough there are no just
causes fortbeni to Siiain the law, yet there are
such cau: 3S nhich. in ail ages, have taken
place, an«< pn»lMbly .-ilways will. Nor was it,
nor is it, possible but haf tbe great power of
enriohing, iionouring, :!nd rewarding, lodged in
the king, -ilwa^s had .ind yet must have an
influence ;m the witne: * ' s and jury ; and tliere-
fore ii is .hat tlie bw \:.\s ordered that at the
king's pr^xiecution no u.-An shall be criminally
question*':" (this is a r-iminal question) ** no
man sb'jtO be criminal v questioned unless a
grand jot y, upon their oi-«i knowledge, or upon
Sie evidence given them, ^''ill girea verdict that
they reaiiy Mitve.tbe ai jusation is true.''*

. . ; Sea vol. b, p. 898.

1ft i^entlemen, there are other roaaoni flbr a
grand jury than these, if there are othen, yo«
will have them ; and though it will oot be par*
roitled to me to do (what with the utaaost ci-
tent of my ignorsnce of the kw, which it vciy
great, I am atill aure I could do by coHMaeo*
sense and reason— i toean, refute those n^
reaaoDs;) 1 aay, though I ahall not bo per-
mitted to do that here, voo and all the worU
will be able, at your cooler boors, lo determine
opon the force of those reasons that shall ks
given, from whatever authority they bmj
come. And in this respect 1 shsll be happy;
for 1' shall have the honesty and tbe unocr*
atanding of the public at laive to judge of tboM
doctrinea which my imbecility might not per-
mit me sufficiently to refute.

Gentlemen, it is true that the court of Kin^t*
bench haa also assumed a power of aecoM
men. They say they may safely be trauM
with it. 1 believe their claim illegal; but I
have nothing to do with it: and 1 acknowlsdga
that it is much aaier there, than in the bsMi
of an Attorney- General, who is whipped iassd
whipiied out just as the minister, whose fiiml
he is, goes in or out. ■

But that is not all. The court of King*!-
bench cannot grant an information without m
affidavit, without an accusation upon oatb ; ai
one of the judges of the court of King's-bcsch
can do it ; and yet they are a little more is-
dependent (they nave fewer hopes, and there-
fore fewer fears) than the Attorney- Genenl;
yet no one of tbe judges of the court oaa ac-
cuse a man. it must be tbe whole court, ui
they must do it in consequence of an oath. If
I am wrong, you will have the pleasure ofcoa-
tradicting it (tuniintr to tbe Attorney Gencrii).
But the Attorney- General accuses men neitlicr
upon the oath of others, nor \et upon hisows
oath. If he believes the matter of ilie atrcuii-
tiou true, it is but tlie belief of oue man, %ni
he a prejudicf>d man, and the most im|tn»fier
man in the kingdom for hm aultiorii} to be
taken in such a case. But, ireiitteiiHMi, what
is much worse, it frequeiill\ ha|)|M*ns that oo
man whatever avows the accusation, or bt-lievei
it; no, not the Attorney -General himMlf wlis
flies the inlbrmation. * I will pro%e it h> and-
by, even in the case of the Attorney -(it-neral
who flled this declaration. Genilemen. I sbaM
desire by-and-hy, for your satisfuctum and
mine, to And out whether there is one man ia
the country that believes me gtitlty of tbs
crime laid to my charge ; a crime of that oa*
ture that is to have a punishment ««hich il
called by the law a temporary death, an txda-
sion from society, imprison nent. Tlie appa*
rent ot>ject of this prosecution is to take t»lisl
little money out of my jKicket I may bava
there, and to imprison me, and so exclude las
trom that society of which 1 hate rendered
myself uaworthy. However, 1 ha%e the pka*
sure to see that there sits a geutlemau by ilM
judge who ia now trying nse, who, aa well «
myself, has charged the kiog's troops with
nuudcr } a charge wbiok si Ibit tint tsoHi

1

le fwgt iiul lb«I {[Enileaisn hare been
■u^biDif »ll lh« time of iliia Irist ; tlif; liate
■lynynl carlt niher'a cvm|jany excesdingly [a
rreal Uu^h Tor sonie minulFs of the h hole au-
lienM'1. VVfrll, icenllemen. (Iurniii|r luvrards
Mil ManififUl anU Mr. Wilkes) I hufecautei}
iiMtlier liugh bctMtf n ilie i^ntleiaen ; but il
fitn Me pkuure tulhink, thai ireier I am la
Mm* 01)1 vf iiriioti aKairi (if you arc so kiail ai
Lo piit me iherf) 1 tai> mny liaf e the boonur (if
Il be onr) ufsitlin)f cbirck hy cheek with ibe
iad», anil laug^liing at tome olber libeller. 1
NJiT, if I cnine out a^in — becauie ifil ii )>os-
■ible thai I ihuiili] be pul Ibere fur lUi« cbarge,
1 hdtere thai will neier ba|i|ier). I will never
MMe repMlini; the chaise I hare made, till
IbiMM men are leKallv Irieil anil acquilled nlm
an Euiliy of ^vliai I call murUer. I will not
U e-mlentti) with one, uor »ii1i ivro, nor with
twftiiy juHei. I will repeat Ibe cbai^ nf
Tmmler ii|H>ii ibe Iroops etery ilay, if this ilw-
'■II. f g«« M far even as tu a'ltnubi ; and I call
, <ri (be .(itoroej' -General now, if he may, if
' > i»n, if lie will venture wilboiil tbe |ier-
iiii%i.ion of lUute luinislera wboie bnmbte aer-
tiW alone be iaj if he may venture, I call
Opun bim lu pleil^ himtelf lo brinK an infnr-
maiiau for a anlitionit libel a)[ainii Ihe king
••d ibe itorerniDent every time 1 cbaiiire Ihe
tnMpa with murder. I pro<niie hiro I will jipve
liim buiiiiMa enough, and 1 ho|i<^ he will (if he
tiuy venture to do ll} iiromise to gtu an tnfor-
muiDn every lime I charge them with murder
*hn ihey coramit it.

Bui, gentlemen, T have tvandpredi lbou(;b.
<f I iRi lo he ihul up ID soon, a few excuriiona
Wforc it may lie excnsed me.

The Atlorney- General iloea not apply (hen
to Ilia tcrand jury, and there is no peraun nhose
Keaaation upon oath it ia.

Wben be has filed hia infurmalion, be pro-
wdi or not opou it as he please*; he files
'nab iul'urmaiiona if be pleases, when hi!
llnaM, M often as be pWaaea; be ums il if
w pleaaen ai a vexatious metliod ivhich may
iiran and ruin and deslroy the {[realest Ibr-
hiae ia Ibix ciiuutry. Il hna been used vexa-
Inuily. I do nul say by the present Atlnrncy-
Uocral I I do altaalulefy acijuil him of thai ;
k* unit, ibat I know of, ha« been ^uilly of
'•ill prautive ; but I do know Attorney-Ge-
''ilt who bave : htil that 1 may not seem lo
'I ill ibe world, I will not meolion them nor
- (■*«.• When the Atlnroey-General has
' I'lflii hii BL'Ciisaliuni and renewed und de-
' '-'I it •* murh aa he pleitiea, if he ehases to
' ' It. I ««id, he Iriea it by almoil whoi:i he
. 'iva. It may Brem pcrbapa a atrangelbin^
>' HIT lo aay W a jury who are Irying my
''"r 1 hut il 1* ■ foci ; fur he is alwaya sure
' I'ltea 'pwialjiiry lor Ibe trial of tbisaiirtof
'i^-icr. L-M ID always irird by
i- I N-.W ibia «eem<i a trry

^irthC"

' "HiH ■lliiaion w.is I Lebeve Jesiirued
Wr M air UwUry Itydcr.

A. D. 1777.

KT IBere ja an expence attending il. ^ _

lemao, 1 auppose, would not be thought tu btt
jniiecessorilv lavisbofllie income oflbe crown,
which has lately been found so deficient i be
surety would not voluoiarily throw it away.
And yet a man thai came from Brentford (mj
clerk formerly) had two {juinesB for bis ex-
pences. He is a very honetl man ; it was ft
very luckv mutlt^r fur him: I wish, for hii
sake, that be might be called a witness against
me once a week upon such a prosecullon.
Now if Ibe ground uf the charge happens lo
be, Bs this is, " of all plain and simple rnattera
that ever were laid hefure a court the moat
simple ;" il is a very strange circumstance that
tbe Allomey- General shoidd chuse lu have ft
apeeiat jury lo try a lliiog in which there !■
nothing special ! Special juries were never id-
lended or appointed fur ibal purpose. They
were inlendeil lo examine into merchants ko-
couota, or any criiital or nice matter ; for yom
know we are told that you have nothing to do
with tbe law : yon do not therefore want anw
legal education ; and yelapecial juries are al-
ways made usenf in mailers of libel. And in-
deed why should Ibey not ? Il cosia the At-
torney. General noibiog. In the ca»e of any
other prosecutor, it would l>e at bisexpeoce;
but (be crown pays this, that Is, the people pay
it against ihemselvea. However, ilial is no

look ai

iflhe

last year 1776, as ibey are delivered in to par-
liament, you will find that they arouunt to the
lillle io«ienificant sum of 60,000i. A defendtat
against ihe crou n ia in a blessed siluatiun 1 But
as the expence Is no reason against Ihe Allor-
ney-General chusing lo Iry il by a special jury,
lie has a very strong reaacin for chusing a spe-
cial jury ; and thai is, because, by thai means,
he Irien It by almost whom he pleases : I do
not mean by tbe particular individuala whom
he pleases, but generally by Ibat deacrlplion nf
men that he iileases. Now Ibia, genllemen, is
pnrlicuUrly unfortunate io my case ; for tttc
Attorney General said {I heard bim say it npoa
the-firsi trial for this advrrlisemeni) that nine-
(enihiof the people appn>vcd of all the mea-
sures of Ihe ministry relative to America. The
method uf striking a special jury seems at first
sight fair enough. Forty. righi men are itruck
from a hook. The defnndaol and the prose-
cutor eacli strikes off twelve. Thai seems very
fair and just; but it is vviy far from being so
fair; forifniue'teolba of the petiple (which he
h I msel I acknowledged) are ol (bm wny of think-
ing (a way of thinking ronirary (o «bat I may
well seem lo he) you will observe thai the At-
torney-General strikes off iwo-teoihi and half
a tenth out ofthe furty-eigbi ; so that be will
be sure not to have one man of my way of
(binkini; concerning America: 1 mean, it will
be so, if at kaat they know what Ibey a eslwnt :
so thai ytw we ihrre is sure lo be a litlle pre-
jiid i-e Btrsinst the drfendont in Ibe minds ol lh«
jury. |i h line, indeed. iliaLlbe opinion i'< th«
jury CDDCernrng Ibe measures relative to Ani^

887]

17 GEORGE in. Pneeedingt agmuf John Home,

[68S

Item hss notbioif fairly to do in this caiim ; bat
the prejadice may be extended frooD one things
to the other, rfe all know fery well bow
men's minds are apt to run. But that is not
all. This prejodioe .will be the case, even
thougrh the special jary are fsirly struck : but
they are not fairly struck. I believed so ; but
J never was sure of it till this case of mine :
and whatefer I may suffer, I think it a cheap
purchase to know what I now know by this
means. The suecial jurors in the counties,
especially in Middlesex, great numbers of them,
are qualified by the crown ; they are esquired
by the crown ; and these crown esquires al-
ways attend upon the special juries. In the
ciiyt gentlemen, to which you belong, you
know fery well whether the description of
merchant has or has not changed within some
years past. You know, I dare say, many of
you, what merchants were— what merchants
are. You all know well that the very numerous
and extensiffe contracts which are going for-
ward bring a swarm of merchants in amongst
you. Every man that has a contract becomes
a merchant ; every man that has a contract is
liable to be struck upon a special jury, and he
is siire to attend, if he is taken : and you must
observe besides, that the Solicitor of the Trea-
sury, who is constantly in this employ of strik-
ing special juries, knows all the men, their sen-
tinnents, their situations, their descriptions, and
the distinction of men.

Now, gentlemen, for the method of striking
a special jury, which I shall not wonder that
you are not acquainted with : and for the coun-
sel, it is a matter that they are not concerned
in. Observe, I do npt lay these things to the
charge of the Attorney-Greneral ; he only uses
the powers which others put into his hands..i—
The special jury, you may imagine, are taken
indifferently, and as it may happen, from a
book contaniing all tlie names of those who
are liable to serve. I thought so when I read
the act of parliament appointing the manner in
which they should be taken ; but when I came
to attend to strike the special jury, a book with
names was produced by the sherifTs officer. I
made what I thought an unexceptionable pro-
posal: I desired the Master of the Crowu-
Office,* (whom I do entirely acquit, and do

^ Within the period of a few years after this
trial, Mr. Home (I have not, m my cursory
inspection of Mr. Stephens's Memoirs of him,
discovered when the additional name of Tooke
was assumed) twice, as candidate for a call to
the bar, presented himself to the Masters of
the Bench of the Inner Temple : and upon
both occasions sir James Burrow voted for his
call. The former of these attempts by Mr.
Home Tonke to be called to the bar was made
in Trinity term 1779; when only three benchers

Sr James Burrow, Mr. Baroo Maseres, and
r. Wood) voted in hisfkvofir, and eight voted
against him. Upon tbia occasion the benchers
or the Inner Tsnkple bad consnited Hiose of
Ibt otb« thnt luM ^ Court respectiog the

not mean the slightest charge upon) T desired
the Master of the Crown-Office that he wookl
be pleased to take that book ; open it where be
would ; begin where he wouldy at the top or

propriety of calling to the bar a gentlemift
m priest's orders (Mr. Home had received
priest's orders). Eleven benchers of Lincola's-
mn, who took the matter into consiteation, re-
ported, June 16, 1779, their unanimous opioiHi
that it was not proper to call to the bar a per-
son in priest's qrders. And a verbal answer,
expressing a like opinion, was sent from the
benchers of the Middle Temple and of Gray'ii-
inn. See 9 Luders's Rep. of Election Case^
p. 381, Note.

Mr. Tooke made his second attempt to ks
called to the bar in Trinity term 1789. At tkii
time lord Shelbnrae, af^rwards the first mar*
quess of Lansdowne, was First Lord of tbs
Treasury, and as it was known that he wished
well to the application (as did his fViend M
Ashburtoo), It is probable that a sQccessfal is-
sue was expected : the attempt however faiM.
I believe that in favour of Mr. Tooke voted tbs
earl of Suffolk, sir James Burrow, Mr. Bana
Maseres, and Messrs. Coffin, Jackson, aid
Wood ; and that on the other side voted Meiwii
Annesley, Daines Barrington, Baron, BarMi
Beareroft (in 1788 Chief Justice of Chester)^
Coventry, and Hall.

In Mich, term 1793 the benchers of the loDcr
Temple sent to the other law societies an ia-
quir^, whether a person in deacon's orders was
admissible to the bar. In Trin. term 1794, a de-
legation from the other societies met a depots-
tion from the Inner Temple, at which aggrvgals
meeting it was the opinion of all the depntiniC
the four Inns of Court, that a |>erK(in in deaoon'i
orders ought not to be calleil to the bar. la
that same term Mr. Tooke's name b^iug agsia
inserted among the candidates for adnnssioB
to the bar no bencher moved his call.

Particulars concerning the last mentioned
proceedings am to be fuund in the Order Book
of the Inner Temple; in the Black Boi»k of
Lincoln's- inn, under dates Dec. IS, 1793, Juss
9, July 9, July 39, 1791 ; and, I conjecturS|
among the documents of the other societies.

It may be observed, that on April 30th, 179f|
Mr. Tooke had in person conducted hi« defenos
to an action instituted by Mr. Pox. for certiia
costs occasioned by a petiti<m against his retuni
to parliament as member for Westminster, li
the minds of those who wished to preserve tbs
decencies of the tribunals (»f justice, and IS
guard against wanton insults to her minisieis,
Mr. Tooke's de|K)rtnient in that iraiMe of bis
own, could not, I lliink, excite oreneourairesa
inclination to authorise him to conduct tbS
causes of ottiers.

in the case of Hart (Pasch. 20 Geo. 3, fi*
ported in Dougl. 353) lord Mansfield Uid down,
that *' all the power of the Inns of Court roarer^
ing admission to the bar is delegated to ibeia
from the judges, and that in every instance lb*
eoadact of those societies ia sulked t» ibe cmi^

>

s

I

i

I

I

i

1

Jor a liheL

mttODi ; and only take the first forty- |
lines that came. I aaid, I bopeil that
• pro|io«il the Solicitor of the Treasury
ave Dothinff to object. I was mistaken ;
ifomeihin^ t(» object. He tboufjfht that
ir way (turning round to the Attorney- !
I). There were witnesses enough pre-
nd I should surety be ashamed to mis- j
It what ei^ht or nine people were pre-

He thoiisfht that not a rair way. He '
; anil pro|iosed as the fairest way, that .
uld be taken out of erery leaf. That I

tlie judges as visitors. A Mandamus

lie to compel the Masters of the Bench
III of Court to call a candidate to the
'rom the first traces of the existence of
s of Court, no example can be found of
|>osition by the courts of Westminsler-
jceedinpf according to the general law
ind ; but the judges have acted as in a
c forum." It a person conceive himself
[grieved by the Benchers of an Inn of
1 refusing to call him to the bar, ar in
og him, it seems that the proper ap-
1 fur redress is a petition of appeal to
ve judges. For other matter connected
s subject, see the reports of the pro-
B in the House of Commons on the pe-
' Mr. Farquharaou, presented on Feb.
10, Pari. Deb. vol. 15, pp. 552 et $eq.\

pp. '27** et $tq.\ 45. 8ee, also, the
CJunnin^hani v. WfCfg etal. 2 Bro. Rep.
icery, '241, in which case a bill fur rc-
f leases of chambers having been filed

the benciiers and other oilicers of
inn, the defendants pleaded that GrayV

governed by bt'iichers, who coorerning
ugof chamlH*r8 make rules, subject in

dispute to an appeal to the I«ord Chan-
mi the twelve Judges. And, by lord
V, Chanc. ** It is a good plea. There
istance <)f a buit relative to the disci-
' the property of cliamber*<, in an inn of
The defendants say, as far as they have
liey are liable to the jurisdiction of the
It is a claim among |>ersons having
e ; therefore this is not the proper juris-

respect to the influence of episcopal
an by im|>osition of bauds, and the dis-
( concerning the operation of this in-
in the different cases of bibhops, priests,
, et aL see the Debates in Dom. Com.
notion for a new writ for Old Sarum,
1801, and those which occurred in the
USPS of Parliament during the progress
tat. 41 G. 3, c. 63, * to remove doubts
og the eligibility of |>er8on8 in Holy
to sit in the House of Commons.' 8ee,
this Collection, vul. 5, p. 754 ; vol. 16,

and Mr. Luders^s report of the case of

>ugh of Newport 17U5, and his Notes

Reports or the proceedings in Com*

of the House of Commons upon Con-

1 Elections, vol. 3, pp. 269. 30B. tdit.

.XX.

' A. a 1777. [090.

objected to. I calleil that picking, and not
striking, the jnry. To what end or purpose
does the law permit the parties to attend, if two
are to be taken by the Master of the CrciviD-
Office out of every leaf P Why then need I at«
tend ? Two may as well be picked in my pre-
sence as in mv absence. I ol»jecte4l to that
method. The blaster of the Crown- Office did
not seem to think that I had proposed any
thing unreasonable. He began to take the
names ; but objected thai he ci»uld not take tho
first forty -eight that came, because they were
not all special jurymen ; and that the names
of common and special jurymen were mixed
together, and that it would be a hard case that
the party should pay the ex pence of a special
jury and not have one ; that they were expected
to be persons of a superior rank to common
jurymen. 1 could have no objection to that,
provided they were indifferently taken. 1 said,
Take then the first forty 'eight special jurymen
that come. He seemed to me that be meant
to do it. He began ; but as I looked over tha
book, I desired him to inform me how I should
know whether he did take the first forty-eight
s|>ecial jurymen that came, or not ; and what
mark or description or qualification there was
in the book, to diMtinguish a special from a
common juryman ? He told me, to my great
surprize (and he said he sup|M)sed 1 should
wonder at it) that there was no rule by which
he took them. Why then how can fjudge f
You mnat go by some method. What is your
methoil? At last the method was this: that
when he came to a man a woollen- draper, sil-
versmith, a merchant (if merchant was opposite
to his name) of course he was a S|>ecial jnry-
man) but a woollen- draper, a silver-smith, i5cc.
he said that there were persons who wer«
working-men of those trades, and there wera
others in a situation of life fit to be taken.
How then did he distinguish ? No otherwisa
than this: if he personally knew them to ba
men in reputable circumstauces, he said, ha
took them ; if he did not know them, he passed
them by. Now, gentlemen, what follows from
this ?

But this is not all. The sheriff's officer
stands by, the Solicitor of the Treasury, bis
clerk, and so forth ; and whilst the names are
taken, if a name (for they know their distinc-
tion) if a name which they do not like occurs
and torus up, the sheriff's officer says,.*'0.
Sir, he is dead." The defendant, who uofs not
know all the world, and cannot know all the
names in that book, does not devire a dead man
for his juryman. ** Sir, that man has retirtd."
*< That man does not live any longer where
he did." " Sir, that roan is too old." •• Sir,
this man has failed, and become a bankrupt."
'«Sir, this man will not attend." «« O,"
(it is said very reasooablj^) ** let us have men
that will attend, otherwise the purpofte of a
special jury is defeated.** It seemed very ex-
traordinary to roe, 1 wrote down the names,
and two of them which the officer <>hjvc\ei\ lo
I saved. •* 1 begged him not to kill i^^^ ^^^^

«91]

17 GEORGE IIL

Procee£iig$ tgahst John Home,

[69B

without remorse, ms they have doM in Ame-
rica, merely becaute he underatood ihem to be
friends to tiberty ; tliat it waa very true, we
shall see them alive a^^ain next week and hap-

Sy ; but let them be alive to this cause.'* The
rat name I took notice of waa Mr. Sainsbury,
a tobacconiat on Lud|fate-hi1l. The aherilra
officer aaid, be had been dead aeven months.
That struck me. I am a souflT-taker, and boy
my anuff at hia shop ; therefore 1 knew Mr.
Sainsburv was not so long dead. I asked him
Strictly if be was sore Mr. Sainshory wan dead,
and bow \ang he had been dead? ** Six or
aeven months." ** Why, I read hia name to-
day ; he must then be dead within a day or
fwo : fbr 1 saw in the news- papera that Mr.
Sainabury was appointed by the city of Lonilou
ane of the committee" (it happened to be the
Tery aame day) ** to receive the toll of the
Thames navif^ation :" and as the city of Lon-
don doea not often appoint dead men for these
purposes, I concluiied that the sherifrs officer
was mistaken ; and Mr. Sainsbury was per-
mitted to be put down amongst you, gentle-
men, appointed for this special jury.

Another gentleman was a Mr. Territ. The
book aaid be lived, 1 think, in Puddle-dock.
The aherifPs officer said, ** that gentleman was
retired; he was irone into the country ; he did
not live in town." It is true, he does (as I am
told) frequently go into the country (for I en-
quired). His name was likewise admitted,
with some struggle. Now what followed P
This dead man and thia retired man were both
struck out by the Solicitor of the Treasury ;
the very men whom the .sheriflf a officer had
killed and sent into the country were struck
out, and not admitted tp be of the jury. Now,
gentlemen, what doea that took like? There
were many other names of men that were dead,
and had retired, which were left out.

There is something more unfortunate in the
case of a special jury. The special jurymen,
if tbey fail to attend that trial for which they
are appointed, are never censured, 6ned, nor
punished by the judge. In the trial of one of
the printers, only four of the special jury at-
tended. This is kind in the Chief Justice, but
it has a very unkind consequence to the de-
fendant, especially in a trial of this nature ; for
1 Hill tell you what the conaequence is. The
best men and the worst men are aure to attend
upon a special jury where the crown is con-
cerned ; the best men, from a nice sense of
their duty ; the worst men, from a sense of
their interest. The best men are known by
the Solicitor of the Treasury : such an one
cannot be in above one or two verdicts ; he tries
no more causes for the crown. There is a
good sort of a man, who is indeed the most
pn»per to try all this kind of causes; an im-
partial, moderate, prudent man, who meddlea
with no opinions. That man will not attend ;
fbr why should he get into a scrape P He need
not attend ; he ia sure not to l»e censured; why
should he attend P The consequence folkiwa,
that fnquently only fpur or five meo attend.

and thoae auch as particularly ought not to at*
tend in a crown cauae. I no not any that it
happens now. Not that I care: I do not dmu
to coax you, gentlemen: I have nothing to
fear. You have more to fear in the venlicl
than 1 have, because your conscieDces are il
stake in the verdict. 1 will do my doty, not
for the aake of the verdict. Now what toUowi
thm permission to special jurymen to attend or
not, as they like best P Why, every man that
is gaping for a contract, or who haa one, ii
sure to shew his eagerness and zeal;

It happened so in the trial of the 6rst casfe
fbr thia advertisement. The printer sbewd
me the list. Amongst them, one of the flrrt 1
observed, was air James Esdaile, aldernsoof
liondon, and a contractor for the army (tbnt
were several others ; 1 do not mention the gea-
tlemen*s names). He would have struck bin
ont. f said. No ; there are so many bad that
ouffht to be struck out, leave in sir James: it
is impossible that a magistrate of Loodsa!
with so much business ! a contractor under Ibl
crown ! if he has any modesty ! he cannot, la
alderman of London ! go down to be a spceiil
juryman in Middlesex! — He was the forema
of the jury. He waa sure to attend. And m
they got tne first verdict, in order to give then
this influence upon men's minds. — ** We bavt
got a verdict. This question has been det«^
mined by a jnry."

Well, gentlemen, having then got socb I
special jury as he usually does get (for it seldsai
happens tliat twelve gentlemen have seoM
enough of their duty to attend, as happeas It
be now my case^— the Attorney-General brisgl
on the trial. He then claims, amongst oditf
things, a right to reply, though no evidence il
called for the defendant. You have heani whit
passed upon \\\i% subject with the jutlge. I
will leave that matter now, though I lliiDk I
have enough to say upon it ; however, I viO
leave it unexamined now : I hope to lire to
argue that point for my client, and tlierefoif
will not now trouble ^ou with that argurorot
You will yourselves judge whether an}' reasoo
was given to me, or to you, or to any msa,
why the Attorney-General, prosecuting fortbo
crown, having all the influence, power, and a^
vantage that he can possibly have, why ba
should have that advantage of reply— -which
my equal or inferior shall not have!

But besides this, I told you before, that bt
claims a right of stopping it« when he pIrasifSy
by withdrawing a juror. I should be glad It
hear that contradicted and given up.

But further, if he loses the venlict, he psyi
no cotsts : the crown pays no costs. I'lie mi«
serable man that is harassed, even thous^h in*
nocent, though gaining a verdict under all i)i«^
disadvantages (if it in possible, and whirh vel*
dom happen?), yet still he must stand t»\ liii
costs; and they maybe, you see, wlniviff
they please to make ihem.*

* " The aecrecy, ease, and certuiiit y t»t l;« %■
ing a man under a heavy proaecuuou m tl'iO

fr Ife AiMtMy-GtncrkI giin* k v<r-

iMthiit wtiiiiii li« |>leiue$, »nil when

I ibinb liierc were eight cunilc-

i> adrerliiemenl, yet hill thtee bate

I up (•> juilgment. One, I ihink,

r, hecauM there wai ■ Tillle fntie-

) the vise bv »n oAicer under the

I tllow it tu nave beeD cerrainlv a

bwaiiu he ii R gpnlleman of cha-

UJ therefore il is accounted for how

^t olf: bul how the olher iirintera

hinhvr Irani ibe bpnevolence of Ibe

^nml, 1 do not know.

> nol oil. He B^jriTHiea lbs puoiib-

die |>enoa a{^iiust wliom he geli •

tf lie pleases. 1 ivas prewal in court

■trd Ibe judge nbo now tries me (and

^erliapt ^ive liic euiue intGlli^nce la

4>!ll Ibe AUorncj' General oflliat time

uw duef Ju&lice n{ the Comraon-

lea be noreil thai Ihe con>icl (who

Kcc, without any controul, by tliif
ifarmalion, are what rentier il much
lidable than the cuiiiinoo, n-guUr in-
wbicb, bv lirlue ofaataiuteuagied
the KcTDlutioD," [Il » the act 4 Si
I. c. IB, ' To prf vetil ntBlicioui In-
W in the court of Kin^'a-heucb. aod
mare eoijr RcTeritaJ ofOuiliwrie* in
I Court*] " caiinol now be filed, for
wa ur iniidcnieaiior, wilhoix expresa
iw Kinij'a- bench, and the inlortiieni
ilo a rcrognizance lb pay cnsia Id the
MMquiilcd upon the trtal, or if Euch
b not (iroceed nilliin a year, ur pro*
fil Promjui. The Ailarney-titneral,
t imtarming ei officio, never pays any
^thMbe loay harass lite prac«U' nny
b« mlM, and put btm to a g^riernui
- wilbtal ever trying the ntalter at all.
) eoata of tbe Crown Otfice are so
L Uutaay maii of middlriig circum-
hII be undone by l wo or three plun)[ea
MM bnnVaeUera aod piinlen know ihia
•nd benoe so lew of Lhero cnit be got
a jrtrloiure upon auy adminislraiion."
i^> Il ■« still more wonderful that, since
knlire it endured, there has been no
M to auliject ihe Attorpey-General,
beiid ao4 punue hi) infurmaiion, or
|l mu nauauiled, or hsd a TerilicI
in. to ibc payment of full coats lo the
■H." Letlerconeeruini; Libels, War-
^■Mttre of l*a|ieri, and Suretiea fur
■ArDetnvioar ; with a viuwloaume
Mdingt, and the Defence of ilieui by
by, 7th cditiou of 1771.
Krili of tlia Attorney- General's tz
imialiMl were diacnssed in the Ilouae
M dw irUi ot July, IU11. in a de-
Ihe qnwliun fur the second readlui;
wblcn liad liern iiiimiiuceit by lord
8m tbe Parliamentary Uebatea of
«l, >ol. 93, p. tl}69. Hee, also, p.
Lllll,ul'llwtaiDe Volume.

A. D. \m. [«l

jwigti wbm tlie Atlorney- General moved duj

Mr. Wilkes miglit be commillej lo the K>ii|tV
bench prisou, lord Manifield instantly laid %
Mr. De Grey—" The king's AlliirDey-Geoen'
may cbuae his priaun : all Ihe prisoDS are if
king's. The Ailornev-Geoeial may, if I
plewes, move lu have bim tent lo Newgats,.
Hit lordship mentioned Newgale: I beard {|
And observe, this

Allurney-Generd, who surely, of all r
the world, least needs inslruckion : and
in a case where he was prosecutor) an
criminal mailer, and proiecutor loo f
crown. And this instruction was nel ii
to oblainjuslice against tbe offender ; Ih
past ; he bad been coniicled many years
fore: — hut it was merely in aggravation
puoisbmenl. I did not know norlieliete ll
the Attorney- Geaeral bad that righl: I ahoi
not have known it, if I bad nol learned ' '*
so ffrent ai autborit}'.

Genllemen, having rehearsed what tbi
claims are, 1 intreat you to consider who it
thai enjoys these powers; superior to
powers which any one judge in this cdd
eBJoys ; superior to the powera which evei
courtsenjuy. It isihe AUorney-Grneral. Ni
who is ihs Atlorney ■ General ? who i "
whose ufBcer is lie P what sort of olGcer
1 will tell you what a Scotch author of raeril-w
(Ibi* is nol law, but it is very good reason and
great truth]— I will tell you what be says of
Ihe office of ibe Attorney- General. Wbai I
say uow, gentlemen, does not go against the

Cerson now inlruited wilh il ; it goes agaioal
is office. I do not ipcak of this genlleniaa
parliculariy ; all Attorney -Genera Is. at least
mosluf ihbm (some ot ihein indeed would not,
but mOBl of Ihem will) use these utijusl puwera.
Mallet says, in tbe preface lu bin life of lord
cliBocellor Bacon — " The offices iif Allnmey
and Solicitor-General have been rocks upon
which many aspiring lawyers have made ship-
wreck of llieif virtue aod human naiurr. Sums
of these genllemen have acted at the bar, as if
they thought themselves, by ihe duly of (heir
places" [tbiit is, a officio) " ahiolteil from all
Ibe obligations rif truth, hunnur, and decency"
— (hut not absolved you find from talking of
Ihem) — " hut ibeir namei" (be uys) " ar«
upon record, and will be trantmilled In afier
ages with ihosecbaracleraof reproaoh and ab-
hurrente that are due lu"- (to whom? Tliia
■nail is as unlorlunalc in hii style as mywlf}
" the wiimt sort of murderers, llione that
murder umler the lancllon of justice. " — Ha
WIS never prosccuteil fur it. He charged ibe
office of Atlorney 'Generil (which i* Mime-
tiling liinre respectable tlian llie uffice of a
cii III luon soldi et) wilh bring the wont son of

Bui tile Atlomey-Geoeril, ilii»id, isehiMea
by ihe king: that is whsl in jireleDdeil. He >•
Ihe king's officer ; hut he h<dds it by a very
Ilia future hopes

V i hi<
u prvpurliuu. Ubseri*

I

«953

17 GEORGE III.

Proceedings agaiiitl John Horne,

[69S

he enjoy* these powers on the behalf of the
kiDg", aij^diiist wliom, particularly, all those pre-
cautions were lakeu ; for these precautions are
not :aken between subjects who are upon a
looting ;%ut all these precautions and ailvau-
tair^s for innocence (that it may nut be op-
pressed) they are all taken, not a^^ainst the
Kinir« hut ag^ainst the crown ; against that power
which is roor< often abused than any other
power; more liable to be abused, because

freatest. But, gentlemen, the matter is a great
eal worse than this. He is not the king's
officer. He knows better where his obligations
lie. He is not so ungrateful. He would not,
at a table with his friends, say that he is the
king's officer: he knows a great deal better
than that. He is in truth tlie officer of the
minister : and if the minister goes out to-iinor-
row, out goes the Attoruey-GenGral. We can-
not possibly have a stronger instance, and a
happier for me, of this rery thing. There sits
here in court a gentleman* who should now
have been Attorney-General (he lost not the

Jilace, I 8up|»ose, for want of sbilities) who re-
used a brief in this very cause ; because he
thought it scandalous at the distance of two
years and a quarter. I suppose he might have
still stronger reasons. If 1 knew them, 1 would
use them. If I knew his reasons why he
thought this prosecution scandalous, you would
hear a very different defence from any which
I can give yon. Put in then another minister,
and the Attorney -General thinks me a very
honest man : but if there comes a different mi-
nister and a different Attorney -General, — " O,
put him out of the world ; he is not fit for hu-
man society ; shut him up like a mad -dog." —
You see it is not the king's officer, it is the
minister's officer. Gentlemen, it is very well
known that the Attorney and Solicitor-General
make a considerable part of every administra-
tion. They sit there in the House of Com-
mons on each side of the minister; the two
brazen pillars, the Jachin and Boaz of the mi-
nister in the House of Commons. However,
gentlemen, though this situation of theirs may
make us smile, it is a very serious thine, espe-
cially when their honour and conscienee are
to go to you for proof, and instead of argu-
ment.

Now let us see, how have those powers been
exercised ? I have shewn you what they are ;
J have shewn you who enjoys them : now let
us see how they have used tbeni ; I mean the
present Attorney-General. I will not go back
to tell you that the bishops were reckoned
l^uilty of a libel, not because they opposed the
introduction of the Popish religion, but because
they, would not lend their own hands to the in-
troduction of it. But how has it been used by
the present Attorney -General? I am driven to
this inquiry. He has talked much of his con-
acience, and that if he had nut iinagioed that
lie was executing his duty, he never shoukJ
have thought of the prosecution: he did not

I ■ ■ ■ ■ I ■'■■■■■! I I ■ I

• Mr. Dunoiiig,

know me ; it was merely a matter of duty.
Now 1 did not apprehend that it was a matter
of his stirring, and that his motive was duty ;
but as he takes it upon himself, upon himself
it must lie. Now, therefore, -how has be exer-
cised this power which he enjoys io right of
being the king's offieei' ? I say, that he bu
then Cfqually betrayed his own conscience, and
the dignity and prerogative of the crown (if
injustice must pass by these naraes)-^! ssy
that he has betrayed them all : for he has acted,
not as the Attorney-General of the king, hot is
the Attorney -General of the House of Con-
mons. Never before this gentleman's time did
any House of Commons, I believe, I am sure,
never did they direct any Attorney -General to
file an information. Who enjoys the power
then ? The House of Commons filet informa-
tions ! Worse still ; the Attorney -General filet
informations, not from his own mere motioa,
not from the direction of tlie crown, but by
the direction of the most corrupt asseinUy
of men that ever existed upon the face of
the earth. It may be called indecent to cill
them so; but, gentlemen, I know, tbatifevei^
man was to speak but one word expressive «
his opinion concerning what I say, there an
those, perhaps within hearing, whose betrts
would sink within them. There is no nil
doubts it, and 1 shall not be afraid to say it.
But, gentlemen, now observe; this officer, tto
Attorney-General, was never permitted to bsve
a seat in the House of Commons till- the tins
of sir Francis Bacon. He is no officer of tbt
House of Commons ; he never was nenmtted
to sit there till that time ; and out or the ex-
treme veneration which they paid to the grestdt
of mankind (for he was so), they permitiei
him, for the first time, to have a seat as a pri*
vate member in the House. Now where bars
we got? He has no longer a seat in the Home
as a private member ; he is the officer of iks
House of Commons: that power which iiTpre-
tended to be exercised lor the crown, is exsr*
cised for the minister. The House of Com*
mons is the minister's ; for he would not be
minister, if he had not a majority. The At*
torney- General is broui^ht in by him ; tbe
House directs the prosecution : whereas tbe
method formerly was, that the House of Com-
mons used to address the crown, to desire tb^
crown to order the Attorney-General to file ti>
information, or to prosecute. Never till ibif
time did the House think of directing the kio^*
officer to file an information. The coiise-
quence happened to be, what at the very tioK
it was natural to foresee would happen. Tbe
Attorney- General prosecuted men vdiom be
thought innocent. I happened by ctealth (I
am not of\en permitted to be there)— 1 btp*
pened by stealth to hear the gentleman ^
the House of Commons speak a langua^
which no man could mistake. Whatisinl
more, on one of the prosecutions brought, tbs
vote fur it was either rescinded, or some bealilf
vote was afterwards put into the Journals of
the House of Commons, for having caused a

}

A. D. 1777.

[698

ntt Bt w^rt • ]icrMi> *
^ tuuntl 10 b« iiinocviii. Hrre is a iliiiii,'i:roui
>i ■ r inilrvil ! Wtio iiiiy not, It' tliis t» \yer-
. J iinl, f)lf ail uilcirinilion Bgainsltliu iuAi}vv\f
w hm ■ priwerii this iii llir liHiiili of* (oiiii&ler
tn Tulu ! ri'r il'l vn uoiriilntKl, il in Ihr gc-nlle-
min'i nurriij-. 1 tlimk him for tint mtrey ;
lor he iniglil every leriti tite hii iaturtnotioD, it'
tie plnufH.

Kaw, ([vnllcmen, consiiler in whvl Borl of
• cliorse lion he enjoy ibrse exlraoriliniry
powrn. Yum will finil. ihKI B» he is the last
mm in the worlil (I appak nnl oftUe man, but
the officf) that uu^bt lu be (ranted nitb tbese
psKirni, Ml be mjoyi llirm in (bat kinil of
cliar^ in wbieh he sliniiltl leail of all enjoy
liieni. I'ur, ecDllenien, libel as well bh Aiiur-
.. y General itepenilt very much upiin the ml-
irr. Why, dun'l we all hiiow Tery well,
i.i ihry wlui werepillnried't'ur libel in ihe la>t
'■.'^a are peniloiieil in tins? Wbat then, it) Ihu
i.>u kini] of charge iti wliicb tills open Joor tn
iipprMmun ihould be left to tbe Aitorney-Ge-
oeral and in the minister f II i« not for crimes
•piinn the ttute ibat this power iaterferei, but
for partial polltii'al opinionn ; and the man wbn
n ptllorled or itnpnaoned to-ilay, may, lor the
nme ant, be jieniioned lo-marrow, just as the
Iniids ebonge. U' thin pnrty goea down, it ii
hlieli iFitromea up, It il merit, la it in thl«
kuii) ol charge tlial au AUurney- Genera I abonld
enjoy all ihetc unjuit puwera? I need not bid

!uu oonudef anil recollact what aort of ihinBB
M» breu Hitir^eii a* liliels: there i* nothing
lliil hug nut lieeu in charged. SermonH, — pe-
liiioiii.^hoiika against playi.f — aaymg ibat
ouiiiry >iill firrupl men, nothing but barely
niMiiiiiii'rii; ilie effecta ot money, — all hare
Wu |i(»*''fiilF'il, and punished, and ear* cut
«f, and tbnae thinga. iur libcla, lii abort, gen-
llraien, yun will always lind (your memories
mU go back enough to dad it without reading)
Ilul whaieier ii contrary to the iDcllnatioriK,
■■tfTMIi, or even Ihe viuci of a minialer, his
■1*ay« Iieen, and ever «ill be, charged as libel.
Kiri at (Ilia lirOE, if tlie Attorney -General's
fiitatt. Mr. Iligby, bad l>een Attorney- General,
or (a direct ilie Alli'mey-tii^nerul to file Infur-
niliaiu for liliels, the present Speaker of the
Housa of Commnn* would bare been ace uaed
of a libel, for recommending osconomy to (be
crmen. We know that be would ; and there
" iiriihing extraordinary thai a Speaker of tbe
i'liine ill Commona should bare an iornrma-
<i a tilHctti tiled icaind him for a libel. The

*Ttiil alludea to Dr. 8liebbeare. Id tbe
■f Mr. Grenaille'a!i|ieech on February
9, waiBtl (be motion for expelling Mr.
It IS policed ihat l>r. Sliebbeire was
f under ilie authority of a general

■gamal Mr. Wilkes.
• the Caae* of liaobeverel, toI. IS,
iTllM !4cTen BUhopa, ral. U. \>. 163, and
tyiiB. i«l. 9. p. *«!•

"8pcd(«r, nilliams, bad »oe tiled tRbmH him
for puhlialiiog ihe .Imimnls ot ihe IliHise.*
Tbey are now wiser. Indeed (ha( case baa
been acouled.

If llieii. genllvnien, lliese enniiileraliODa
thouhl make yi>u cBruliil and atieniive in a
trial upon a proaecuiion vl ibis hind ; Ilie
freijiiency of proM-cutimia fur libela. I aup^Kiae,
slinuld Slid to yonr care and allentiuD. F<ir,
gentlemen, when ia it tbat hbela are niifct
frrijiirnl ? When ia it Ibat pmarculixna lor
libels hare been most fretpirni ? Hare they
lieen under the best gorcmmeois, under
the best adiDiniMraliona (Iur gnrernment it a
word abused: I mean under the ministers)?
Hare tbey been most frequent under tbe beat,
or always under the wonlf It is only bad meo
lliHl will accuai.' tbe good : gnod men don't ac-
cuse good ihings: uolwilbilandiog which, you
will lind thai under the best admiaiilrationa
few libels, and mncb fewer proaecu-
tions ; and undi^r tbe norsi adminiatralions ynit
will alwava find tliem aitarm. Whrifacr it
happens that under tbe worst admiiiiatratinni
(for there i« always lolly wiib wickrdnea!) the
miuister is an loolisb, as that, nut atimding to
the |irincipl(s of the penon recommend^ to
him, he, by mistake, chusrsa good Attorney-
General, who bus skill to diacnrer and honesty
pursue those crimes which are detrimental
society ; or whether It happens, tbat a good
□ister chuses n bad Attorney -Gen era I, who
a nu hunour or understanding to care for or
to diseoTer ibeir evil tendency, and therefore
does Dot pnisecuie at all ; — but so it happena,
tbat under b goud minister there are no prose-
itions for libvl, under a bad minialer yon meet
iih little else.

Gentlemen, if the general nature ol ihis kind
of proseeutiun calls for your particular atten-
tion, tbe parlicnlar unfairness uf thia prosecu-
tion mnre strongly demands i I. Gentlemen,
you will be pleased to remember, that tbe ad-
rertiarment which is now brought before you
wuB published on the Qih of June 1775. Ob-
serve, loo, wliai is the rhsrge. Nut any harm
that it has done ; no, but only a tendency, Th«
charge of the libel is a tendency to exrile sedi-
tion ; a tendency to alienate the minda of bis
majesty's snhjecta ; a tendency to do a great
many other bad things: I do not rrciillect
there, nur care about iliem. What 1 come two
years and s quarter afierwarda tn prosecute (ur
a tendency (not actual miachiel, but a tendency
to mischief) li was so dangerous a thing,
tbat it trta siiflrred (o rage and bare its full
influence without any check or cootroul ; and
then two years after (when ila tendency must
lung since have ceaseil) comes (he prosecution
In check the tendency! 1 believe no giand
jury would bare found a bill lor thia proaeou-
n at this diilanve of time : nay, I hrliera
It all ihejudgea of ibe King'a-tienoh wouki
t baae dona it. The AttorDey-Uenerol waa
>ll awareuf tliia olyection upun tli« trial af

* See (be Caae ia rol. 13, p. 13eo.

099J

17 GEOUUC: IIL

Proceedings againsi John Horne^

[700

thefiral printer. «< Why DOt?" laid the At-
torney-General—" Will folly uy, that that
which was a crime in 1775 ii no crime io
1777? Will folly say?"— Why, wba^ will
not felly aay ? Fully will say any things : and
what wonder? ,when even a man of his natural
good understanding, if placed in his peculiar
situation, is oflen obliged to aay wfiat a mode-
rate folly would Mush at. « Was it a crime,"
■ays he, '* two years ago, and is it no crime
BOW ?" That is not the question : but, whether
ksboahl be prosecuted now, a(^r two veers
delay ? Thai was the question which he should
bave spoken to. And would that be thought
to ridiculous • positioo to be hourd in a court
of common law? You all know very well, thai
A simple contract debt cannot be recovered after
six years is snffered to elapse. Now, will folly
■ay of that money, and the benefits of it which
A man has ei^yed for six years, was it a debt
tix years ago and is it no debt now ? No ; no
nan will pretend that the debt b not accumn-
Jated. But what then ? If yon have soffcrad
(hat time to pass by, you shall not sue for it
now. So the unjust possession of an esUte for
/orty or sixty years (according to the rules
which the Courts have laid down) the unjust
poisestion of an estate quiets the possesskm.
Wkatthen,does it become just? Havel robbed
another family for so many years; retained
the principal aiMl the income ; and does it now
become just? No, but you shall not recover it;
the door is shut against j^oursuit. Appeals
for fekinv, for rape, and for murder, they must
be brought within a year and a day. If you
let slip that year, you ahall not prosecute.
WhaM Does it cease to be felonv ? Does it
cease to be rape ? Does it cease to be murder ?
No; there never was anjr such folly that
said that ; no folly ever said it: but the law
says, You shall not prosecute : you hare lost
your time. But there is still a stronger cir-
cumstance concerning this doctrine, which I
love best, because it came from the gentleman
himself. The estate of a man, the most ob-
noxious for the blackest treason, by an act of
parliament, was proposed to be restored to the
son. J rejoke that he has it : but the argu-
ment of this very gentleman was, that — ** ob-
lifioo ought to pass over it : it was treason, to
be sure; but it was twenty years ago." Good
God ! if twenty years shall prescribe against
treason, or silence, or put oblivion upon it ; if
forty years possession, fur a large landed estate ;
if aix years, for a simple contract debt; if one
year, for appeal in cases of rape, felony, or
murder; what shall not the mere tendency—
(not actual mischief)— but the mere teudencv
of an insignificant libel in a news-paper (if it
was a libel ; but it is not) what, shall not that
be permitted a two years prescription ? I shall
have others besides folly, 1 believe, think with
ne in this question.

But, gentlemen, whether it shall be prose-
cuted or not, the hardship is equal to me. I
do not say, that it is absolute law that it should
not be prosecuted ; for this has never been ad-

judged : indeed the case baa never happened
before. The Attorney- General has produced
no precedent of such a pruaecution as this ; be
can produce none to you. But 1 desire the
Attorney-General to remember what I now say
to you and to the Court. 1 say, that thia abuse
of his power and prerogmtivo, and of bis uiyust
claims, will cause some method of quieting
men in respect of libeb, as men have been
quieted in respect of possessions a^inat the
crown. It will be necessary : for it will bt
considered that the nature and the eflfecia sf
the charge of libel have been verv coosideraUy
changcNl in the preaent time. The charge af
libel now affrata both Houses of Parliameat
Privilege b gone ; expulsion may be tke eon*
sequence ; incapacitatton foUowa f To what art
they exposed! I caat my eyea by accident to-
wards one—l beg the gentleman's pardon-
there aits near the judge one of the moat dis*
tingnisbed members of the Uoose of Com-
mons ;* be is as liable to an information lor a
libel as I am at thia minute. In bia book, in
hia book the charge of murder is aa completely
made as in my advertisement : it is lately pob-
lisbed ia hia Letter to tke Freemen of Briatal:
be sUnds as liable to be expelled, to be punish*
ed, to be shot up firom society as a mad dag ai
I do, and with the aanse pretence. Gentle*
men, there are now great officera of atate wbsm
I know to be more liable to a prosecution for
libel than 1 am ; who have written what has
much more the aspect of a libel, than anv thing
to be found in my advertisement; Midwkid
may l»e proved against them by the same maa
that has proved my publication. It istrue^
tboee, wbo are not concerned in the GasHte,
may at prasent kave lefi off the practice : bat
what aiginfies that ? The Attorney- General wiM
tell them, that the number of yeara aigaifts
nothing: it is folly only that will say that;
even though it was written ten or twenty years
ago, (fbr he has drawn no line) it is only lolly
that will say, it is not a crime now, if it was i
crime theu. Crentlemen, I must beg you par-
ticularly for your own direction to observe the
strong reasons against this practice of bringiog
a prosecution for a libel, long af\er the csuie
of the charge was given. Consider the chaagei
which are made both in the persons charged,
and the appearance of change which tliere aisy
be in the thing charged. A man liereat'ter ts
be charged with an offence so uncertain wi i
libel, may, thinking himself in perfect secorityi
change his situation ; which he would not ksve
done, if he had known that there was a prose-
cution fur libel hanging over his head : and
perhaps the Attoroe^r-Geoeral uould net have
brought that prosecution, if he bad not changed
his situation, and thereby made himself vol*
nersble, wbo was not so t»efore. Why, a man
might have had a wife and children since ikt
publication of this libel ; and it is known liiit
to have them is called—** giving hostagea la
fortune." — A man might mve given hootogift

* The celehntad Mr. Buika.

lo fbrtnne, inil then eompii « vindiciiie Aitor-
ii«j-G«^cra1 Biiil limes Itim Riray rrnm liis
l<»c>l'ul rrnnily anil Bre-siik, dragt him away
for ft liWI wriilrn ten years fgo : Tor he hut
drawn ao line) 1» (lii« III be Iximef it Ms lii
tw •ufltn'ml T I ihank Goil, iliu is nnt ray sitiia-
ifio. There it, however, a change in my
iitaalinn i but ul' Ihal 1 ihilt say nolhiii);;
tfaonjih I finnly belicie, that that change in
my litualiun ciitieil thia itinwculion : and you
youmlf f a ijiali coniider. It is uow two yean
•nd a ntloolh ago, or iherenlioiila, upiranlt of
tirn year* oan. thai ihia adverlifemeDt was
pufaliihtMl. Thry were rery aore at it ; it waa
oouaiili-red aa an affront by those who ncre
f Ud that the men were killed. ITovrerer. of
■hem I know tinthing; I hare not accused
■hem. A proaeeution wni soon after cnm-
mrnceil ag^mat llie prinlrr n ho liia here been
iileaceii|;ainaiine; and ll glojiped: he heard

A. D. 1777.

[702

e of ii

sleep, nnd v

lakpn up aifain. When? — Im mediately after
ii waa known tomeuhere, that I bad (aHer an
interval of iweoiy yearsj eniercd nfjain into
mnmttna at iheTeni|>le, in order In do thot Inr
aih«r* which 1 am now brought here to do fur
BiyMir.* Then rr-commenced the proseca-
lion ; then am I liecorne a libeller: hut it
■Irep* till (hen; It was hronglit asaiD fjresii
into life by that act.

Bill bejiitei this, gcnlletneo, there i« a great
{hang« nnt only in llie person chnrgcfl, hut
ikere ia a grpal change also in the ap|>earance
if the thing which is charged to that pemon,
iy tengili of time. Tliis ndreriisenient was
"hiiea in a lime or prolbuiid peace. A civil
«ir bu liiiee taken place; much bluod haa
btfo ihed : mui-h miichrief of all aorls has lieen
nSnvd; and I wiih I could »*y, that there
•u not much more in prngjiect. You cannot
|Dur«elve« tlierefure eaaily put hark your minds
» Ihat ailualioQ in which they would hare
tmi, hail the proaectilJon followed cloie upon
Uiit pnbhctiioo. You cannot recollect the
'>In when certain proclamatiotiB itsued; you
ODaot rKotlrct the dates when certain iuiuries
look place: un I cm one made it bii parucular
nudy, there ia nnt one uf you can tell, whether
'kitaolputed nthia time, or ibia proclama-
'"Ki at ifiit lime. If there i« one of you who
«n recollert. yoii will And, that all thtne raea-
•Urn which lake place againtit reheli, have all
^ itinct lhai ndvertiiement. General Oage,
"bom I tuhprenaed. and who would not attend
)'>u, who liiya, that he is gone away to Ger-
htny, he abould have proved to you, Ihat he
hblished a praolaniBlion in which be give*
nouce til the Americana Ihemielvcs, lotig eder
fill afTuir at Lexingioa and Concurl. He
i<"li<^e to come in, and warns thrm
1 111 BO, otberwiao they should be
iiliela; it irai not therefore known
.1. cunsidered, In America, aa re-
1 (iroclamalioii came. That pro-
- 'I BOtk (ome effect; it miiNt

Note in p. OBU.

either be intended to make them rebeli who
were otherwise nut; or to make ihciii known
lo be sn, wIhi were bii. If they did not in
America know that they wrie lebeU, till that
prm^Iamalion came, how thauld I here la Etig-
land know it hjog before thai proclamaiioD did
come P There is a great change in the appear-
ance of llii* adrertitement brougbl lorwaid
fbr prusecution now, from what il woul4
have had to vour minds at that lime. Thia
vou are bounil lo consider. Indeeil it was said
i'rom the bench, on the trials of the prioiers,
that ihis advert iNemeDl blamed, and censnreil,
and libelled " alt the measures of goveriifiienl"

measures of gnvcmmeiil I
Ihal happened since the publtcatiooof it, anrrly !
and if llie V can find in th»t ndierliaemeni, that
it censure's all the meaiurea hefure. 1 will he
canleni to lose a verdict. You wdl nol, (r^n-
tiemen, li>r you must nol, lake it upon what
Ihat gentlemHn sny«, « hat f meani and what
I thnugltt If you can make onl that meaning
Irnm the advertisement, then do ii; hui ynu
will 6nd DO word hinting at or censurinif any
rain or any measure but thai one measure of
the Americana being put to death by the i[uo|i9.
If you can find in ihal advertisement an v nunie
hinled at or alluded lo, or any thing of that
bind, the Alloriiey-General will be much
obliged Id you; for he cannot. If be could,
he wouM have shewn you in which |iarl il waa.
He would hare siiil. Here ibii measure is al>
hided to; there Ihat great ininialer of slate >i
nlludcd (o. lie has not, nor can do that : ha
has a reply coming forwaril, and, if be cen do
it. he will do it then. Therefore, geuliemen,
yoD see Ihal tlial migbl be a libel, if ii was
wrillen now, which was not a libel al ihe lime
when it wai wrilten. Gentlemen, I don'i iiiran
that my advertisement would be a hliel, if it
was Hrillen now. I know Ihe contrary well ;
and so well, that, if it is become adouht in thia
country, Ihat il is a sediiious libel against the
king and the government (o charge ihe iroopa
with murder, I will wrileit again and again.
If il is not a question, then I am satisfied; but
ifit is made a qurslion in thiscouulrv, ihit »■>
man shall charge a soldier with mmder wllb-
□ul being guilty of a sedilious libri airainst tba
king aou the government, then 1 will go into
prison for life: for I will regularly charge the
king's troops wiih murder (if they put men to
death unauthorized by the law) regnlariy and
couitaoilv : and sn I would do, if they road*
Ibe puuianment death. Gentlemen, it' ihe ad-
rcriiseiDcut had the aspect of a libel, il shnold
hare been pmsecutrii aa conn a* it was pul>-
lished, that so the niisclilevous leudency ol' it
might have betn prevrnied, and ihal fair play
might bare been done to me, and that you
might uol come In try an advertise men I. for-
getung that the adveriisemenl preci-ded, and
did not follow the rebellion. But if Ihe Altor-
ney-Oeneral has piased his lime, I ought then,
gi-Dtleiiieu, as iu all other cases by law I sbonld
have, to have Ihe beneSl of the tauli of my a<

T03J

17 GEORGE III.

Proceedings against John Home,

[70t

versary. I ought not by his neglect and faOlt
to be put iolo a worse situation than 1 ahould
have been, if he had done hia duty. But the
iLitorney -General said at first, in excuse for
that, that it was owing to an accident. If true,
so much the more fortunate for the defendant.
But how appears it? How does it .appear that
it happeneil by an accident ? Is that to be so
slightly taken up, upon the Alturnev-General's
just hinting it? What was the accident? Has
he profed it? has he named it? He cannot
name it. Let him account for it. I heard the
late Attorney-General (the present Chief Jus-
tice of the Common- Pleas*) declare, that it was
liis doty to account for his conduct in brintfing
thai prosecution against the letter of Junius;
which was brought quick too, not in this man-
ner. He said, it was his duty to account why
he took one printer before another ; because he
looked upon himself in filing informations to
be exercising a judicial, oflicial power, and not
merely an advocate at the bar; he thought
himself bound to justify his conduct. Let the
Attorney- General tell us the accident. I know
something more of the re* commencement of
the prosecution than he thinks I do ; and a ?ery
strange circumstance it was that brought it to
my knowledge : however, I don't think 1 want
that But that is not all. An accident, he
says, prevented the prosecution at the time
when, he must acknowledge, it ought to have
been prosecuted. Aye, but there is another
accident. What is the accident which has
happened, that makes it be prosecuted now ?
There are two accidents. He has only just
hinted one of them (he has not told you what
that is) ; but he is totally silent about the other.
What is the accident that makes it to be pro-
secuted now, at the distance of two years?
Yqu see there is one accident which caused it
not to be prosecuted at first, in a proper time ;
there is another accident that causes it to be
prosecuted at an improper time. He is bound
to justify himself (not only to you, but to every
man) ; he is bound to tell you both accidents.
1 believe he will explain neither. Gentlemen,
I am sorry to take up so much of your time.
1 protest upon my honour, it is not to gain a
verdict for myself : 1 have business to do that
will take me up much more time than the
judsi^rs dare to confine me on this charge. I
am already a prisoner : I have been a prisoner
in my own room much longer than they will
chuse to imprison me. They will take care.
The doctrines concerning libel have now risen
to such a height, that they call for some re-
medy ; and they wilt have it. The coming
necessity of the times will produce it : and if
we shall not have it from justice and honour,
we shall have it from necebsity.

Geutlemen, there are many other unfair
practices in this case, besides this delay of pro-
secution. Oliserve how it conies on. The At-
torney-General takes the printers first. Why
not lake the author first? He has said indeed,

• Sir William Dc Grey.

that though it was signed (and he makea that a^
great piece of impudence) lie baa said, that
though it is signed witli my name, it was—-
*< as inscrutable and impossible for him to fol-
low it, as if the name had not been put there."
These are the very words : <* as inscrutable and
impossible, as if my name had not been p|it
there." — Now, what said the evidence that be
brought to you ? He told you that he had never
refused ; that he had never been aaketl ; tliat
they had never made the slightest enquiry aAer
the author. Now 1 appeal to your own coo-
sciences : is there a man in this court that
doubts whether the Attorney- General doubled
or not that I wrote that advertisement? Is
there a man in this court thinks so Basely and
so meanly of me, that, having signed my name
to an act of that kind, and paid (as 1 will prove
to you) the money to the banker ; is there a
man in this court that doubts that the Attorney
General would have found a difficulty to coiue
at me ? There is none of you that can believe
what he says in that respect : iudge then of the
rest. Gentlemen, he took tbe printers first
I will tell you Vhy he did that : it was to gain
the influence of a verdict He meant to take
nie ; be did not think it inscrutable or impos-
sible. AAer he had gained the influence of a
verdict on the printers, then he comes to tbe
author. The question now comes with a pre-
judice before you. A jury has determmed
upon it, has declared it to he a crinoe. Aly
God ! where is his honour and his conscience?
But be says, that he did not know the author.
He did know it; he was in possession of tbe
proof before he tried one single printer ; sad
therefore the printer, who is now the evidence,
was not brought on to trial.* Tbe informattoa
was filed against him, and he withdrew bis
plea, upon an agreement with the Attorney-
General ; thinking perhaps (you may suppose)
that 1 should play him some cunning trick, and
sink the evidence. I mention this, because it
has been thrown out, as if I had escaped from
the power of the House of Commons for \^aiit
of evidence. The gentlemen (looking at tti«
Attorney and Solicitor-General) know the case
better ; they know better.. 1 know the gentle-
men and their understanding's. — They knofr
how I escaped, and I will tell you presently.

But, gentlemen, he takes the printers Hrst ;
and which printer? — He who printeil it Jastot'
all the others. Now, why did he take kiui
first ? 1 will not tell you myself, but the priatrr
shall tell you. He was a strnnger to me, aD>l
he writes to me this letter— " The printer of
the Whitehall £vening-Post presents his mo»t
respectful compliments to Mr. Hurne, sod
takes the liberty of sending Mr. Home a copy

* " The fashion, now (a. d. 1764) ininn
ducing (for the first lime since the Revolution)
of proceeding against printers after the author
is known, breathes a spirit of persecution (I
may say cruelty) hardly to be endured.**
Letter concerning Libels, WArrants, ScixuTt
of Papers, &c.

I

Jot a Ltbef.

oT the ioibnnUion filed i^inst him Tor pnb-
lisbin^ iheadTertiaeDieDlsigncil by Mr. Hnrii
on babalfof the CnuMituilooal .Socitly ; Biid
the priotcT hu Rreal reawiD Id Ltlieve, I'rotn Ilia
living in HidiUcae]!, ihat BiliniaisCralluD wi
male* (beir Krat attack upon LIm, as lli«y ge
tierally deem themsHiea sure of a jury in thi
co«iiiy," S(c. — Genilcnen, Ihat was there!
•on why they look the printers (iral, and that
frioler firM: anil (which la a rery lin^lar
llnllir) thuuifh lliey convicled thai printer, ihey
baiv neier broiii{bl him tip l<i juilginent. But
ttr. Attomey-Getieral said (and I had like to
bale forsol to mpniion it) ihat he dill not ki
that I was the auihor. 1 have prnTfd In _
thai be did kaow it barore Ihti trial uf the
piialen. Coinnmn Ben«e shews to you Ihat be
did know it, and bat! evidence a^ainsl rue, But
then, I suppose, he will aay, he did not slop
(he trial ui' ibe printers, because that Hould
k*te caused a delay. — It would liare caused a
delt>l What, afier staying- two yesrs unrea-
MoaMvatMl unjustly ?—li would bate cuuied
Utdotay itfalerm Id rake the aullmr first, nud
fm bim lair play. Will he hy-and-by say,
dttlbr dill not slop ihe printers' lr'al->, and bring
B»e OD firoi, merely lo avoid delay f Tbe

rterv would haie been much oliliKed lo bim
the delay; tbev wished and deinred It.
Tbajp offered bim evideacc. 1 totd this hniiert
tHa (trhoae face I never saw before} when he
now la me — (Ihr Ihe printera were not de-
falked in the manner I wished ihem to lie da-
faadcd ; the lillje advite I (rave was not ful-
ln*d)— atnenest ihe rest I lold ibis printer of
IhilVhiiebull Evenin^.posl, ihnt I ilid not be-
Kete he cuuld escape bring trind Ural; butl
M him he should send biii altoruey lo Ihe Al-
twavy-tieoeral, and ni^ke excuses, and heg
aai pray Ibsl he mieht nut then be brought on
It trial, but sMy till alirr Ibe London jurien
kidlHed the cause ; and I advised— (ne had a
MMiiigi 1 roijfut to ask the witness the ques'
■il) aod I ihen advisKi ihat printer who was
ttQMldence, ihat Ihe Loiidoo printers should
vadesTOur to press nn Iheir trials ; and ur|(e
ttsi Kiispeuee waa worse to them limn any
Viineihalvonld follow a cunviclioa ; and that
Ihe Middlesex printer should beg for deluy. —
*al ib»t ibe Aitorney-General might be im-

KU|H>n ;— nu, it would have been nothing
Fit and reasonable :— Imt becnUFe I would
VJIbn coviT a insu h iih slitime. if he refused
i^ OTM least (and so far kindly) prevent him,
ifpuuilda, from csposing himself, by pretend-
i^L-tliU all this is the natural course of acoi-
'' til ; ihul il was dune lo avoid delay ; that it
""inieilrity, hnno'ir, purily, and conscience.
~HoMeTer, I Dould lint prevail: so ^eal is
dw loflueuce ol* that genllemaii's office, and
cnnitecliuiia which it causes. Thuii)[h
pnnirr was esijer for il, his atlomry said,
' I csn'l be coucemed in the cause; 1
not foi 500J. 1 cau't speak to tbe Aiior-
■ay-Gcnemt ; for Und's sake, g^i auoiher al-
" ■■ No, Mr, 1 doii'l mean Ihat yon

L lilbsf

fOL. XX.

In

A.D. 177T. 1706

j-oil conM have no objeclion la go to the A t-
toriiey- General and pray drlay, till after the
olher printera hud beeu iried ; ynnr client'c
wife is near being hroaifht lo-hed." — .Sn lii*
Middlesex printer was tried first, and s verdict
gained. I did ool wonder at il : I expreied
it. Genlli'tncn, thnu|{h ibis wasan aci'idenl, I
musi be^ you to observe It la an accident which
has always occurred. For In Ihe cai.e of Ihat
teller of Junius whirh was pro«eculeil,ihefirat
person pri>secuted was Almon (who waa not the
pablisber, but had sold II at bis shop) wha
[ived iu Westminster. Here loo was llie same
■eodent; and it had the same consequence;
except, indeed, ibat In that cose the Loiidua
juries recollected ihemwlvcs ; and Ibuutjh tltef
had. a verdict^of a Middlesex jury, Ihe Loodoa
juries cast il out. There was liowever, a slruj^
gle in their rcrillcts i there was toineihing —
hut I will nut enter lnti> that now : Ihvy would
not, hoHerer, autTer their minds lo be eiiltreljr
influenced and alTecled by the prior verdict so
obtained. A e^ollemao who was a juryman
upon that occasion in Mkldlesex, is uow a btr
mnel,* and of greal eonivqueiice at ibe lndia>
house. Grnllemen, if you make yuursetves
useful, there is a better (rack open to y>iu than
Ihe honourable and just nins of yunr pro-
l-essiun. You will observe then that llie lam*
acciJpnls always return, and ihey are never
explained.

Gentlemen, there is one part of the treatment
of me in Ihii ptosecullon that 1 think 1 have a
ri^hl to comiituin of aa mat) to man. I gave
Iheoi no trouble ; I made no nhjeclions ; 1 re-
quested when ihe jury waa struck, from theSn-
licilor uf the Treasury (before witness) I told
him I lived in Ibe country, that I was alwaya
at home — I desired he wuuld save me uiinecM-
aary trouble, and Ihat be would do, ns men saj
to ibe executioner, Uo your office like a gentle-
man. He seemed to l>e well disposed towards
It, and treated me with great civility sud cgin-
plaisance. I desired bim to present ray com-

il myself) and deaira he would lel me know on
what day be wttuld chuse lo have tbe trial.
The solicitor promised rae he would. He kept
me upwards of a forlnlgbt, never letting me
know that It would ur would uot be tried. !)•
kept me till seven o'clock at nig^ht the day be-
fore the last day of the siltins>> uncertain wh*-
llier I was to conie here or not the uext morn-
lug'. What waslhecoDseqiience? I had told bitn
tbe consequriice. t had a wiiness lo send liirone
hundred and Ally miles. I sent for him, and I
have again bmught him (I am ashamed of the
trouble 1 gave Ibe genllemnn, a stranger to me,
I never sa>* him till now) I gave him the
trouble to ceine and to go back two hundred
aod eiifhiy miles The jiersnn — (and it is not
a common person, a porter, or innsenger ibal
can be sent with asuiipcann, when ynu douot
koow whether the wiliicsb will conic or lioi) —

TOT]

17 GEORGE in.

Proeeedingt agaimt John Horne,

[708

J Hasi forced to send him the same way. The
Solicitor for the Treasury knew it ; yet he
never would let me koow till last Tuesday
Diffht (last Tuesday afterouon I suppose oiy
solicitor knew it) wbeo the trial would come od.
My witness was forced to go back aud come
•f^in. Now, what is your verdict, (suppose it
filfased the Attorney-G^oeral to go on so two
or three sittings more) what is the effect of
your verdict compared with that expence?
Your replict is the gentlest part of the prose-
cution. When 1 say your verdict, it is because
then follows the judge s senti-nce.

Gentlemen, if you don't know, it is proper
that 1 should inform you how the London ver-
dicts were obtained. I was present in the court.
One jury, I think, brought it in (at first) i^uilty
4»f printing and publishing [See the case of
H'oodfall, A. D. 1770.] a most stupid verdict !
I am sorry that honest men should be so im-
posed upon. Guilty "f printing and publish-
ing! I beard a gentleman once say, who has
some skill in the law, that there was but one
possible (Tuilt that there could be in printing
and publishing; and that was, if it was printed
upon gilt paper. The pyn is poor enough ;
but not too stupid for the doctrine, not a bit.
There happened upon the trial of another of
tlie printers to be some difference of opinion in
the jury. They came into court ; they de-
aired to be heard, A juryman desired to know
^' whether or not th^ were to find their
verdict according to the mformation :'* that was
his question (I don't know bis name) which he
desired to know. It was plain enough what
that honest man meant. It is true, he did not
express himself in the technical legal terms of
the Uw, perhaps; but i did then say aloud
(and 1 firmly believe that his lordship heard
me ; there are gentlemen in court that stood
by and heard me) 1 did say (a little heated)
** hrs lordship dares not answer that question."
I said it out loud (I might well be supposed to
feel a little) ** he daf^es not answer that ques-
tion ; for he dares not deny it ; it is too gross :
be dares not own it ; fur then he loses the ver-
dict." His lordship did not answer it ; his
lordship did not. Are you to find according to
the information ? — Why you are to find the in-
formation according to the evidence. You are
to find the thing, with which I am charged,
firoved. The juryman said — according to the
information — Why, he was to find according ;
for according means agreeing, and means no-
thing else. The evidence agreeing with the
information ! Why yes, to be sure, what is he
to find else ? f le must find that or nothing, for
that is tlie only thing before him. However,
that question was not answered. Then a little
conversation, of a strange nature, took place-^
(his lordship loves conversations with the jury)
•—a liitJe conversation took place about inten-
tion. 1 hope, gentlemen, 1 tihall at least have
this benefit by my trial, that the doctrine of in-
tention will come out fairly and unequivocally
to you ; whether the jury have a right, whe-
^^'~ it if their duty (it it the very gist of the

i^hole matter) to determine vrbat was the in*
tention. The laws have confined the jury to
one single word (so careful have they been.)
That word is guilt ; that guilt which ia charged.
Guilt there ttitk be none without intentioo; If
guilt can be found without intentioQ, ao be it ;
l)ut I hope that you, gentlemen of the jury, nor
this court, will not be permitted to go away
from, hence with these equiv4»cal sayings whida
hitherto have been. Let it cume out fairly, aod
let us know, in the name of God, what the doc-
trine is.

Gentlemen, 1 did object, if you remember it
^-(1 don't now intend to go into it, for I shall
still be longer than I wish ; but I thiuk I
ought to mention it, and I hope you will ex*
cose the loss of your time)— gentlemen, wt
talked something ainut the right of the Attor-
ney-General to reply — If there comes, said hit
lordship, fresh matter. — There can come no
fresh matter, unless there comes fre^h evidence.
The evidence is the matter ; the pleading is a
different thing. The prosecutor is bound to
foresee all that can be urged in defence by tbt
pei'son accused ; and to answer it before it
comes : that is, he is to make gooil bis charge.
If it is not so» see the other case ; see, oa
the other hand, what 1 am to do. I am
then to foresee what he has to urge agaitit
me ; and if 1 do not, what follows ? WbT,
all that he urges in hia reply (as he csUs
it) is a new part of the accusation, which I
shall have no opportunity of answering. Tba
fact of publishing the advertisement is not dis-
puted ; I never disputed it ; the whole matter
that we have to do together is, for him to prove
it a crime by law or argument : therefore
whatever argument he uses in hia reply, if it
has any effect upon your minds, I may be con-
victed (if convicteil upon such argument) with-
out ever having offered the least defence ; tliit
is the blessed consequence of his right to reply :
so that he is not to foresee what may be tin
swered to his arguments ; but the roan charged
is to foresee what arguments may be urged
against him.

Gentlemen, there lives this day a Tery great
man in this country, whose doctrine and wboie
practices were diametrically opposite. He ea-
joyed the office of Attorney- General. He bu
been a chief justice. He, as I am informed,
never prosecuted but one libel, and that was
Dr. Shebbeare, who is now pensioned by those
who made this gentleman Attorney-General.
What was bis conduct.'* If ever there was aa
infamous libel against government, surely it
was that (it is a great many yeara ago, but I
read it). What was lord Camdeu's conduct?
He lefi the whole to the jury ; intention and all ;
the n hole : he cut you off from nothing of yoof
right. He did not hold the threatening language
— '* you may, if you will, take it upon you."-*
Why that tlireatening ? You may commil
crimes, if you will: you may beas iodeceotaa
I may be supposed to be for repeating tbtt;
bot, upon such an occasion as thia, I reckon ift
not indeceot. But— ^* you may if you wiU.*'«^

709]

Jbr a LibeL

A. D. 17T7.

[710

Wby yoa not only nay, but yoa art bound to
doit; nor do you discharge your comciencea
nor your oatbs, if you do it not : but I hope you
will lia?e it eleany said, whether you are
baood or not. Lord Camden's remarkable
words, when he finished his charge against the
defendant, were, that he did not wish the convic-
tioo of bim, if any man whatsoever donbted of
his guilt.

Gentlemen, another thing was said, which I
mnst warn you against j it was said that this
advertisement (1 belicTe I mentioned it) ar-
taigned all the measures of government (at
least, I think, you need not search into the ad-
vertisement itself to be assured that it did not
arraign the measures of government which
kave followed the publication.) The printers
who have been brought to judgment, have been
tenteneed a hundred pounds ; and tliey suffered
what they were not sentenced to, a week's im-
prisooment. Their fine, it was represented,
was mitigated, for that they might have been
or were imposed n|»on by the author, the libel
esming in the shape and form of an advertise-
ment, which disarmed tbeir caution ; and there-
fire the fine was no more. Formerly our laws
panisbed men for being knaves ; now I perceive
they shall be punished for being fools. If a
printer, for the sake of two shillings or balf-
a erown, is imposed u|>on by a wicked incen-
diary, who, under the shape of an advertise-
nent, disarms their caution and slips it into
tbeir paper ; the jury have, vou know, nothing
todo with their intention ; therefore there must
ke a verdict against them of course : the
jadges find the printers have been imposed upon,
ind therefore only imprisKin them a week, and
fbM them one hundred pounds. It was a dear
JMlf-crown they gained! If the prinlera were
iaposed upon, tiiey should have been acquitted.
Bat by the evidence given now, yon find they
were not imposed upon by me : there was no
iaiposition by me. What was my conduct to-,
virds the primer? This advertisement I am
^ giving you will offend certain ministers in
tbis country : it is perfectly harmless and safe,
iodfree from the cognizance of the law : the
letter of it is just ; it is true ; but the law af-
fbrds no guard or protection now from the
pawer of the ministry in the HoutieofCom-
iMos, who vole men guilty! and vote things
eriines! They have given out, owing to my
Airbearance (I did not witih to expoae the na-
tsreof that defence which caused me to go
Ne from the Houst* of Conimoos), being silent
tbey have propa|/ated a report, as if (Tike an
Irtful trirkuig attorney or solicitor that is not
tned to bouuurable practice) 1 had made a
cbai^e upon thero, and sneaked out for want of
evidence against me. 1 was determined, for
tbe take of the laws of this land, that they
ikoQld, either by forbearing to take notice of
tbis advertinemeiit, or by takiiiflr notice of it,
kl it appear that they nave no power to pu*
tiib a mao hut by the laws: and thererore
1 fumiabefl full evidence, in order to shew
IbUtvea witb the fullest evidence the Hvum

of Commons have no power to try or to
punbh the subject I knew I was safe from*
the courts of law, at least thai I must there be
tried by a jury ; and they may do their duty,
if they please. — Gentlemen, for every minute
af impnsonment that those printers suffered, 1
do freely and frankly confess that I deserve at
least a year, comparatively. If they deserved
a minute, for every minute I certainly deserve
a year; and for every farthing of that hun*
dred pounds which they were fined, proportion
onl)r our guilt (if there is any guilt in the case,)
a million of money will not be sufficient for my
crime. If they can justify their sentence on'
the printers, I will justify the court for the
most ample punishment they can inflict on me.
If I am guilty, no man upon earth an guilty.
it waa the most deliberate act of my life ; it
was thought of long before I did it. I made \
the motion; I called the meeting; i sub-
scribed a great part of the money ; 1 procured
the rest from my particular intimate frienda :
but I shall come to that by-and-by.

Gentlemen, J have ahewn you the method
of proceeding by information ex officio : 1 must
now desire you to observe the method of punish-
ment, when it comes to the court. Observe
how that passes. The man is convicted this
sittings : he is called up for judgment next
term : Go to prison, says the judge, and then
we will think of your sentence. They sentence
him a hundred pounds ; but for what was the
week's imprisonment? It is put into the sen-
tence indeed ** and imprisoned until he pays
his fine.' Well, but could the man pay bis
fine till he knew what it was P Observe the
distinctiona which are made ! A general offi-
cer who is now in America, generki Bnrgoyne,
was prosecuted. He comes into court to re-
ceive sentence for hiring ruffians to destroy the
electors coming to poll ; what ia his punish-
ment? He is fined 1,000/.; but he is not sent
to prison whilst his sentence is deliberated
upon ; he is released instantly. Now what says
our law ? Our law says, that ** a corporal punish-
ment, however small, is greater than a pecu-
niary puuisbment, however great." * (^unlibet
' poena corporalis, quamvk minima, major est
* qu&libet posnk pecuniarift,quamirls maximft' or/
something of that kind. [See vol. 3, p. 129].
Well then, the greatest ofi'endcrs, you see, have
not the greatest pnnishnient. The miserable
printer who is imposed upon by an incendiary— <
to prison with him ; we have not time to tell you.
now what we will do with him: and yet iidoea*
not seem to be a very difficult case:- but in %
very uncommon case, that of an officer of thn
king's troo|>s hiring ruffians to destroy the
electors cowing to poll, and thereby gaining «
seat in parUament ; in this cave no deliberation
ia necessary : or it is taken properly, before he
is brought into court, that he might not auffer
a moment'a impriNonmeut. You see the dif-
ference. The delinquent was wisheil good
morning; the judge from the bench, when thn-
general paid down his fine in court, wished
bim goon morrow. APPtber man waa latelj

71!]

17 GEORGE ill.

Proceedings ag&itui John Homct

[TI»

]pro8«ciited, who wwiM bare fakes away the
fatate of hia ueigbbour, that jieiffbbour DOt oou-
aeodng illegally to loie it He aeoda bim a
cballeiifl^e. He ia proaecuted and cai^icted.
>fo dehberalioD for aenteoce; not a naomeDt'a
impriaoDineot. He it fined a hundred jponnds ;
and applicatiao b even made by the Court to
know if any body ever knew a precedent for a
amaller punishment. Nobody indeed ever did :
and yet this challenger waa an elderly member
tf parliament, and a juatice of |ieaoe for the
•ounty where he lif ed.* He waa still better
<^tban with a good morrow: he was tnid—
• Idem alii fec^re, et mulli, et boni !* — *< Other
m^ have done the tame thing. Sir, as yon ;
and many other men and good men !** — If be
waa a good man, why was he punished f He
■tood not, at that time, a good man in the court;
he did not appear there ror hia goodness.

Gentlemen, J some time ago hinted aame-
thing to you of the motif ea for this proaecu-
lion. I will now go no farther titan only to
ahew you clearly what could not be the mo-
tivea; and I will leave your minds to determine
what is the motive : only so far I will say,
that if the change in my situatiouf if I was al-
lured to it by the lucrative emoluments of the
profession, and wisihed to share in the legal
plunder of the people, this prosecution might
then be very 8t*rious ; but 1 laugh at it. I am
•ut of the reach of the intended oonsequencea
ef this prosecution; 1 say, intended conse-
quences: for rely upon it, I am better known
to thpae who have caused this prosecution,
than for them to have only in view the coo-
•equeocea of imprisonment and fine. No, they
know better: they know that no men act aa
I have alwaya done who mean to be stop-
ped hy imprisonment and fine. But, gentle-
men, I will shew you what is not the mo-
tive of this prosecution. The motive of this
proaecution is not to prevent the evil tendency
of this wicked libel ; of this horrid charge
against the king's troops of murder ; against
aoldiera' who never commit it, who are not
likely to commit it. 1 am sorry to read to you
anyiwper: (I did indeed intend to have read
many, but the time 1 see will be too lonsr) 1
will only read one or two to you, just to satisfy
you of nome things which you perhaps are not
aware of. Here is the Public Advertiser of
May SOth, 1775. You will find in it a very
aerioua, very particular, very sharp accusation
ajfainst the king's troops of murder; the whole
circumstances at length ; and murder, murder,
murder in every line ; but it is so long that I
will not read it to you now, because yon can
all remember to look at it hereafter. The
papers are May SO and May 31. The govern-
ment then, 1 mean the minister (I nuike an
improper use of the word government) the
minister desires the public, upon this charge
of murder against the troops, to suspend their
beKef. What follows P Tliis paper which I

* Mr. De Grey, I bdieva, eMer brother to
tlMOIuirji«liotafC,B»

have prated^** Aa a danbt of the mrtkaatl.
city of the aeeount from Salem, toueMng ■■
engagement between the king's troapa um tka
praviaciala in Nasaacbuaet's Ua^, dkc. 1 de*
aire (o inform ail -tkoae who wiab ta aee tka
original affidavita which coofiirm that tea— t,
that they are deposited at the Manaioo-flaiiia
with the right hao. the lord^mayor for Iheir
inspection. Arthur

II

Then come the copies of the affidarila ; all
the particulars at len«rth : murder ia not syaiei
at all. Then, amongst the rest, eomea aa aft-
davit, which I ahall prove to you preanMly
more authentically than iAms; though it ■
enough for me that it was published. Bnt y«i
know, gentlemen, 1 am not the original author
of the charge. The geoilenMu hM been talk*
ing of the original author of tlie charge : ha
thinka he may tell you so now, two yeara aftsr*
wards ; hut if he had told you ao at the time af
this advertisement, every man in the cowt
would have huiifbed at it. Here is the ori^iaal
charge, aigned by the agent of the provuMa
where the murders were committed, and tha
original affidavits confirmiuff it are- here saidia
be lodged with the lord-mayor for taspectioa.
It is very lucky for Mr. Lee that hiH receif^
iog them, and causinip them to be advertiscdi
has caused no proaecution against him. We
shall know presently whether this affidaiut ba.
a forgery or not : the gentleman for nboae it is
given attends here by my subpoina to prove tr
to disprove it.

** I Edward Thoroton Gould, of his majesty^
own regiment of foot, l»etug fkf lawful age, ia
testify and declare, tliat on the evening of tha
18ih inatant, under the orders of general Gsgs^
I embarked witli the light infantry and g<'^<uk
diers of the line, commanded by colonel Smith,
and landed on tlie marches of Cambridge, frosi
whence we proceednl to Lexington. On oar
arrival at the place we saw a body of prof iootsl
troops armed, to the number of about sixty sr
seventy men. On our approach they dispert>ad,
and soon afler firing bi'gan ; but which party
6red firatl cannot exactly say, as onr troops
rushed on shouting and huzzaing previous 10
the firing, which was continued by ourtroopS'
so long as any of the provincials were to m
seen. From thence we marched to Cooeori.
On a hill near the entrance of the town we saw
another body of the provincials Bbsembled. Tba
lifrht infantry companies were ordere<l up tba
bill to disperse them. On our approach they
retreated towards Concord. The greoadierf
continue the road under tlie hill towards tba
town. Six com|)aoies of light infantry weft
ordered down to take possession of the bridgai
which the provincials retreated over : theeaaH*
pany I commanded was one. Three coaapanita
of the above detachment went forward abaat-
two miles. In tlie noean time the proviaeill
troopa retamed, to the number of ab^Mit threa
or four hundred. We drew up on the Coacavi-
aide of the bridge. The prorincials oaaae daw a
upon «si upoa whkh we engaged mad fif^

IS]

JbraLUik

A« D« 1777«

wfat fire. This wm i\m first cn^afeiMiit
fWr Hm tioe at JjEoamgUM. A continiied Araif
ro«i hiUi p«nie8 laatel tbrouffh ibe winile ilay.
Mjidf was woooded at tbe attack of tha
rMife« aad am now treated with tbe mat<«t
noMnity, and taken all poeiible care m by tbe
niviaeiala at Mcdfonl.

Sigmed, ** EamAMJ} Thoboton Godld.''

Wben fifit I beard of tbit prosecation, and
ol before, I befrao to consider whb myself
^heiber I bad indeeil made use of any such
ifHrestioD or word as distioi^uisbed what I bad
ltd from tbe case of many other persons. Not

day passed but 1 found sohm news-paper
lilli the same charge, cunlainini( the same
mrd * mvrder.' I need not read any of them to
>oa ; you can all recollect. Go to tbe papers
bat are publisbed to day, to those published
tlhre this cbanre was brought against roe and
ioce, mid see if you don't constantly find in
kem Ibis cbarf^ dt murder a§;ainst tlie king^v
raapf. I took extracts from tbem till I was
rad; and not ouly from the newa-papers, bat
everal other publications; from that honour-
Ue Kenileman's pubtication and others, which
fee of more consequence than futf^itive pieces
I a news- paper. These all pro?e tbe Attorney
Scaeral's nice sense of honour and integrity,
lad rcffard to tbe public ((ood, who prosecutes
hm advertisement. Now, that men may not
k misled by it, after suffcrin(|r tliero to mn
iiM for two years, ami be rnisM without any
BMtroul ! But, ipntlemeo, so far from that be-
ii|f the motive of this prosecution, tbe iiapers
Ne all full af tbe same charge, and will eon-
tiane full, I have no doubt. I protest upon
■y honour, they are none of them made by
■c: I have been dumb ever since. I meant
It do good by it when I made the charffe, and
I have been dumb ever fiince, because I conid
Mtsee that any goo«l wa& to be produced. If
Ibea you see what is not the tnotive tor this
pustcution of me, at this distant time, that will
M your minds to conclude what is tbe mo-

Gentlemen, tbe language of the Attomey-
Qeacral forces me to say a few words upon a
■ebjeet which is the roost disagreeable for a
iMo to speak of; unless indeed it is when be
tHcars as I do, a defendant. I thought when
m Attorney -Cieneral opeunl his charge upon
iMs prosecution, that he would have taken a
Mmnt line from that which he repeatedly
Pmoed in tbe trials of the printers. He knew
Ikit 1 bad heard him talk against ** indecency,
t iood of obscenity, and scan«tfllou8 publico-
liiiis." 1 had already beard him charge that
Mvcitiaement to be full of '« ribaldry, Billings-
Me, aenrrility, balderdash, and impudence."
1 hate not used a word that be did not nse.
M these I knew be had charged upon that
hor advertisement. I thooght that upon this
piescention be wonid not give me such an ad>
flMiga as to say tbe same things, or take the
Mo Kilo that be took before. It is true, he
phM4-a#trdiet by tbat line before, and there*

[71*

tiase. I

ftra perliapB thooght be migbt Ibis
own I did think tiMt be wooM have
the compliment of something a little new ; hot
be says be sever knew so lauch of my talcoto
and learning as at this time. Tbe geotlemaa'o
memory is short: 1 would have forgot it, if ,ho
badoot. He represeots me to you in tbe ligbt
d' a scurrilous, nbald,. balderdash, fiillingsgaie,
impudent fellow. That boldness witb'wbick
I defend tbe right of tbe subject, will not, with
any roan who has a regard for the nglit of tbo
subject, pass for impudence : those who know
any thing of me must judge whether I am im«
poident upon other occasions.

Gentlemen, be has fo:luwed in this desorip*
tionof roe which be has given, and in tbat
character with which be has been fileaaed to
dotbe me— be has folfowed tbe old practice of
soHfie ingenious tyrants, %^bo used to dress up
men in tbe skins of beasts in order to eucourago
tbe dogs to worry them. Just so tlii* gtrutle-
man dresses np bis victims in the chanM*tera of
beasts, in order to expose them to your indig-
nation. He bad no pretence w hatever for re-
pruKenting me in tbat liKbt. I do the more
wonder at this language lirom him, because bo
knew better. He has said indeed, that be did-
not know the gentleman. The word * know'
has many different meanings. H e did not knoir
me as a friend, or as an acquaintance ; I never
had that honour: but tbat be did know me ao
far as to know much more of tbe talents and
teaming (if there were any in the case) than
what he can possibly have picked out fiom tbia
day's bearing, is a notorious fact. However,
gentlemen, if I am that BiHingsgate fellow,
unfortunate is it for the Altorney-Grneral tbat
a fit of Billingsgate then once took him : and
whilst the fit was on him, be applied to a gen«
tleman to introduce biro to roy company, ab-
solute stranger to him as f was. I did not re-
quest it; the Attorney- General requested it.
Perhaps the gentleman w ho introduced him ia
in court. The fit was not a short one : mj
conduct and my character was not, in hia
declared opinion, such as he now represents it.
I believe we sat in a public coffee-house to-
gether, thoui;li in a {mvate party, 1 suppose
from eight or half after eight in the evening till
past midnight consideraMy. I don't nientioa
it to plume myself upon his distinction ; I claim
no honour from it : tbe gentleman miglif bo
desirous of seeing roe as you go to see a raree-
sbew, or SA you winibl any strange creature;
it niitfht be from some curiosity. I never waa
vain enough, gentlemen, to impute it to myaelf
as a merit ; I did not see any rt-ason to grow
proud upon it ; but I mention it |»articularly
for this reason, that not only it ought to havo
saved me from such a representation of^ cha-
racter, but it ought to have saved the Attorney-
General from pinning sucb motives upon me as
be mentiof^ed in another trial; such as tbe

Sining of hall^-crown. or the flying in tho
se 1^ gofeminent. When he was in* noa«
session of my naotive, he knew it perhaps bet-
ter tktB iboet flMn in EogUndj and though I

V15]

17 GEORGE IIL

Proceedings against Jehu Home,

[716

donU think I have a right to repeat what passed [
from that geotleroaD (though there was do-
thiog in it dishonourable to him), yet I may be
permitted to say what came from myself to
Bim. A question was asked me to account for
a part which 1 played ; and why I, who did
not then seem to him to be a desperate man
drifen by necessity to it, or that ill- behaved
man, or that fool (for great numbers of patriots
and ministerial men go from folly ou both sides),
be seemed to think I might bate some more
honoarable motif es about me, and wished to
know what they were. I told him my motires ;
and it is a strange circumstance that I should
then tell him that motife which is the very
motiTeof this action of mine which he now
jprosecntes. I told the gentleman, in the year
1768, that there was a certain aect of religion
(which I named) which of all others was most
abhorrent from my principles and way of think-
ing ; but 1 added — " Persecute them to-mnr-
row, and I will declare myself of that sect the
next day." 1 appeal to himself; he will re-
member it ; it is rather too remarkable. I will
mention the sect, if it is necessarj^. Shall I
repeat the name of the person, the introducer,
and the place? If there is any doubt, and he
ilesir«« it, I will njiention the particulars ; be-
tsause 1 should be sorry to be laughed at as if
adfancing a falshood of this kind, and pluming
myself for passing a few hours with the gentle-
man who happens now to be Attorney-General.
This passed long before this wicked advertise-
ment ; long before I could foresee that the
Americans were to be treated as they ha? e
been. 1 think it should hate saved me from
■uch a representation of character, and from
■uch motives as have been imputed to me;
from that gentleman at least, if he acts (as he
pretends) without direction from others ; for he
Las seen me steadily pursuing that same mo-
tive. Every action in which I have been known
to be concerned, has steadily been upon one and
the same princi|de. I have never had occasion
to support a friend, or an acquaintance, to pro-
mote an election, or to vote, or to do any thing
for my particular connections ; they have al-
ways bt>en absolute strangers to me, and men
taken up upon the fooling of oppression.
Triends !— — Yes, if friendship received from
me could make them inv friends. But friends !
No, if any friendsnip received from thein
was necessary tri make them so. My motive
has been constantly the same: I know no
American.

Gentlemen, I have been more concerned in
my room than I have with the commerce of
men in the world ; and I read there, when 1
was very young, that when Solon was asked
whicli.was the best government, he answered —
^* where those who are not personally injured,
resent and pursue the injury or violence done to
another, as they would do it done to themselves.''
-*That, he aaid, was the best kind of govern-
ment ; and be made a law iinpowering men to
do 80. Now, gentlemen, we are happier, we
vc onder a b^ter goremmeat \ for our laws

enjoin as to do what he only impowared
to do. By our laws the whole neigbbonrbood
is answerable for the conduct of each : oar laws
make it each man's duty and interest to watch
over the conduct of all. This principle and
motive has been represented in me as malice.
It is the only malice they will ever find about,
me. They have in no part of my lifefomid
me in any court of justice, upon any persootl
contest or motive whatever, either for interest,
or profit, or injury.

I have kept you too long to say a tenth part
of what I intended to say, and I believe it is
not necessary : I shall therefore pass over maey
things that would give to some pleasure, aad
to some pain. But as they are of that nature
that 1 shall give myself (he liberty of osiog,
upon other occasions, as 1 please (doing nt
wrong), I can the more reaciily forbear mem
here. But, gentlemen, in this matter of cbaig^
ing the king's troops with murder, there is a
very striking circumstance ; and that too, I
suppose, the Attorney-General will bavef<N>
gotten. It is well known that, amongst oliicr
oppressions and enormities which gave me paii,i
murders (without any contest and dispute) con-
mitted and pardoneclgave me much. I caused
the soldiers in St. George's- fields to be proie-
cuted — the king's troops — for murder. I took
them up. It was called no libel by the tbct
Attorney -General ; no libel against thegovera*
ment. They were tried for murder. I dkl iv-
tend to have told you how they escaped ; iNit
it matters not. They were tried ; they wers
charged with murder ; and that not only io a
court of justice ; I advertised it, I signed it
with my name : tlie same printer (I forgot to
ask him as an evidence : indeed 1 had wforo
asked him for a news- paper that contained the
advertisement, but he could not send me one)
he could have proved it ; hut it is notoriously
knoun, i charged that murder upon the kiotif'i
troops with my name. It was not thoui;ht s
libel then. It was thought a very great affroDi:
for those troops had been thanked, in the king's
name, for their alacrity upon the oecasioo.
What then, if the king's name had been abused
to thank men for their alucriiy, what tbeo?
(I did not mention that, but 1 mentioned the
murder committed.) There was murder con-
mitted. I saw it with my eyes ; I saw maoy
barbarities committed. I might have been
amongst the slain. And shall not I mention
wiiat I saw with my own eyes? Shall 1 have
no tongue nor understanding, but in a court of
justice P I certainly will. What followed ? iSooa
after that [in 1768], Mr. Stanley, a consider-
able officer in the state, moved in the House of
Commons for an act of parliament to take away
from the subject the right of appeal in the caio
of murder; because 1 had caused appeals to be
brought ; that is, I assisted the parties who
brought them. This motion was supported by
Mr. Selwyn. Mr. Dyson, a lord of the Trea-
sury, declared himself to be entirely of thsir
opinion ; — " because the right of appeal wr
murder was, he said, a tbackU np» "•.,

17]

JaraLiUt.

ing'f mercy t but he begged a delay till the
est winter, wben he promised it should have
is assiftaiice ; that so the motion might not
ppear in the Journals of the House all the
uminer, to alarm and terrify the minds of the
leople before thst bill could be passed into a
i«r, for which at present, he said, there was
lOt time." — To avoid its alarming the people
etiire it could be passed into a law ! — Well, it
id not stop there : some notice was taken of
bis, but not much, as it was for that time
ropped. But this motion was revived some
iroe after [in 1774]. Mr. Rose Fuller (a bet-
er man to come forwards upon such an occa-
ion) gave notice of a renewal of that motion in
he House of Commons: he was supported by
tfr. i^ttorney-General. I was alarmed at that
and I will pn>ve it; I am not now asserting
that I will not prove). I instantly publishdl
rbat they mitrht have called a libel, if it had
MH been upon such tender ground. I sent it

0 the public pa|)er8, with the initials of my
lame : I inserted in it -such matter as couki
30t fiid to make it be known to come from me.
Iliat «Kd not content me. I rei^uested an ho-
Boorable member of that House, who is now
ioeourt, Mr. Alderman Oliver, to present my
esmpUments to Mr. Rose Fuller and the At*
torney' General, and to inform them that, upon
that ground, I was ready to go even to death ;
that I would stick at nothing ; that, on such
as occasion, I feared no prosecution for libel.

1 iatreated them to tell me when they would
briag the motion on, that 1 might be present to
bear what pasned, which 1 would faithfully
itpart and freely comment upon. The Attor-
•ey-General, in \m sup|iort of that motion, had
ieviled the ri^fht uf ap|ieal in the subject for
norder, as a Gothic custom. Gothic was the
iovidious charge he brought against it : it was
t Gothic custom ! Why, gentlemen, so are all
tile rights, and liberties, and valuable laws
vliich we have; they are all Gothic. But
this was to be plucked out from amongst the
mt; and because it is Gothic that men should
W punishetl for murder, because it is a shackle
vpoD the king's mercy, murderers are not to
be punished. Gentlemetf, this attempt has a
(jSir affinity with tjiis prosecution of me, for a
libel against the (government, for charging the
Usif'stroops with murder. Gentlemen,! beg
yonr attention to this matter: for, you see,
tbey have got fartlier now in their system
^d their doctrines ; and the mere cliargiog of
^ king's troo|>s with murder is to he consi-
der«d as a seditious libel at^ainst the king and
the flfovernment ! But what thought the House
^ Lords at the time of the Revolution upon
this G(»thic custom ? — King James the second
bad cut off and murdered many of the |>eers,
Vttder a sham trial of a commission of peers
^bom he picked out. At the Revolution they
^sk care to secure themselves from such trials
■■ future; ami therefore, on the 14th of Janu-
^ 1680, they entered this amoug their stand-
■•J*''l5'»! '* Whereas this day was appointed
^ ^lullg into considei^tiou the report wade

A. D. 1777. (718

the Sth day of this instant January, from'tht
lords' committees of privileges concerning the
trials of peers: afler due consideration had
thereof, it is resolved by the Lords spiritual
and temporal in parliament assembled, that it
is the ancient right of the peers of England to
be tried lonly in full parliament for any capital
offences. And it is ordered that this nssolutida
be added to the roll of standing orders of thia
House." — ^This was to secure themselves. But
when they had done this, some noble spirits
amongst them being alarmed and apprehen-
sive, lest, under this pretence, in future timet
the subject might be deprived of his right to
prosecute those who had committed murder,
they (three days afterwards) on the 17th of
January, entered the folk>wiog declaration:
** It is declared by the Lords spiritual and
temporal in parliament assembled, that the
order made the 14th day of this instant Janu-
ary, concerning the trials of peers in pariia-
ment, shall not be understood or ceastroed to
extend to any appeal of murder or other felony
to be brought against any peer or peen :' an«l
it is ordered that this declaration be entered on
the roll of standing orders of this House."— i
The peers at the Revolution (all Gothic as it
was) took this right of the subject, and hugged
it to their bosoms ; and this too in their own
case against themselves. They would not
themselves be exempted from a possibility of
being prosecuted to judgment, that justice
might ne done for the lives of the king's tob*
jects, even if slain by themselves. However,
gentlemen, this Gothic right of appeal is not
as yet taken from tis : and I do firmly believe,
that by the resolution which I shewed, and by
the message which 1 sent, and by the libel
which 1 published (if such things lie libels^, I
do believe 1 have the merit of putting off (at
least for that time) so infamous an attempt.
Infamous four -fold, if you consider the doctnne
now brought forwards. — The king's troopa
shall not even be charged with murder ! Ob*
serve then what follows : the king perhaps will
not pursue ; the subject shall lose his right of
appeal ; and you shall not even dare to say
that the king's troops have committed murder.

I have already taken up much of your time;
but I hope that the importance of the doctrine
brought forward in this case, as it is the first
(there is no precedent of such a one)— 1 hope
that will be my justification.

Gentlemen, 1 will now come to the ad-
vertisement itself. The Attorney- General say t
it is a scandalous publicatiou ; and he has re-
peated all those terms which I have before
mentioned to you.

Now, gentlemen, pray consider with your-
selves, to what purpose has he dune thisf
Look at the informatiou (you have a right to
carry it out of court with you) ; see if you can
find any such charge in the mtbrmation ; tee
if you can find any thing tantamount to ribal*
dry, or acurrility, or Billinsgate, or balderdash.
These make no part of the information ei aU«
He has done it merely to mislead and inflame^

719]

17 GEORGE III. Proceedings agfAui John Home,

[710

Bal he compUins of icandaloat pnbiiottioM !
l¥ho hu most oaiue to compfoia of teiiMhikNii
publieationt (taking the nation as divided in
•pinion between the Tory and the Whiff doc-
trinee) ? who haa most reason to cfmi|Naia of
scandalous pablieations ? Read Dr. Shebbeare
and the arehbishop of York !* a pensioner of
the crown, and an, archbishop just cieated so
by the crown ! See how they have treated the
Presbyterians! And yet, I presonae, they are
as respectable a part of the king's subjects as
the kin^s soldiers! I think that to alienate
the minds of the Presbyterians, or of others
from them, is doing no great service to this
country! Why not prosecute for that? No;
pensious and mitres shall reward them ! But,
Bot to talk of these general matters, the At*
lorney-General, in a prosecution of roe for a
particular advertisement, thinks it his place to
talk of s(*andak»tts publications. Pray, take
the two individuals, the Attorney- General and
myself; which of us two has most cause to
oomplain of scandalous publications ? Judge
ftirly between us. He is a gentleman in great
•fliee ; a gentleman necessarily exposed to the
difference of opinions sbout his conduct : my-
■elf an obscure man, who never did enjoy any
office of trofft or of consequence ; who never
was a candidate either for honour or for profit ;
who have no claim to the notice of the public.
Compare this with the situstion of that gentle-
nan ; then compnre the ribaldry and the scan-
dal that has been published about us both ; snd
judge %ihich ought most to have talked of
scandal in this prosecution ! Gentlemen, I have
had the honour to lie burnt in effigy, ami 1 saw
myself committed to the flames. 1 have been
•ung about the streets in ballads, and I aaw a
Jittle pert parson cocked up upon a slick in the
singer's hands. The news- papers for some
years were even sick of my name. Even my
clothes afforded an entertainment for the wit of
the theatre. As for caricatures, I have myself
bought enough of them to furnish a room :—
my rooms are but small, as you rosy easily
suppose. My life has been written, with my
Daroe at length, and the atheist and roacaroni
parson printed at the bottom of a print in the
nrontispiece. Atheist! and with my name at
length ! Scandalous publications, to be sure,
should be urged by that (>[entleman against
me! Gentlemen, I have never complaineil of
those imputations. I protest (except with very
ignorant, very poor creatures, and it does not
wgnify what they think) I don't think those
imputstious ever hurt my character; and if
they have, I will take the chance of time to
refute them. There was indeed one imputa-
tion that I believe did get some ground ; and
I thank the Attorney-General for now refieving
me from it: it was the worst of all the other—
a eorrupt pensiooer of the crown. That was
n imputation which 1 believe did stidl by me ;
bot there ii DO wander al that at all. 1 di«l sol
flf«iifhrili^«>^>wBh ■■ aflBM« tht poMma-

■ I

tioos and the writers : it is th^ pracdca of tbi
tioMs, aad the cormptioD of the minislcr. that
liiielled me! Every man may, witlMatha^
absurd, suspect his neighbour of oormplisBy
wittiout any specific charge broughl agaiaM
him. Good God 1 iu a natioo of lapars libs
this, wlio cao expect to lia thought cleaa!
However, I afp-ee with the AttorDey-Gcosnl
in all that lie has said generally agaiBSt aeaa-
dalous publications : they ought to he, aad tbs
laws (without straining them) are now aafi-
cient to cause them to be suppressed. Bat,'
gentlemen, I shall never he found In .the list sf
those dealers in scandal. Well, but in tha ad-
vertisement he tells you, there is acurribi^
Billingsgate, ribaldry, and baMerdMb. ite
gentlemen of the law love to go by precedealL
The Attorney -General found a preoadant far
it ; and therefore (without conaideriDg' wbidbc
it would apply or not in this case) he made mt
of it to eke out the time. Mr. Noy, the Attsr-
ney- General in the Star-Chamber, prosecntd
a man for speaking disrespectfully of sUfs
plays ; and he said, that ** it may be fit eaoifk
and lawful to write against plays, by men ihit
have a mission : and they must do their srraad
in mannerly terms, and in the same terms M
other men expect to bear with them. Mr.
Prynne had no mission to meddle with ths«
things, to see whether men should not letan
to gentilism. The terms which he useth sia
such as he finds among the oyster- woflBsn St
Billingsgste, or at the common conduit.V* •Mr,
Prynne had no mission, it seems, to prsveat
men from turning heathens; and therefoiehi
ought not to endeavaur to prevent them fhm
turning heathens ! But however, gentlerosa, if
I have used Billingsgate, and thoNC bad terav
M itb which he charges me, 1 shall not be angrr
with the Attomey-Generul, but very mom
oblivfed to him, if he will help me lo correct
my languaure. I am sorry, however, to fisi
that he does not intend I shall have much b^
nefit by the example of his own. He baf
charged the advertisement with im|Mi(lescs
too : and it seems, gentlemen, by what I heaid
from him in the other trials, and in this, lo bt
a very lucky impudence for me : for he 6ii
say, that *' wicked is a term too high fortbil
advertisement." These are the very wordi;
I took them down : <' wicked is a term tts
high for this advertisement." Upon wlist^
tJien, does he expeci to gain a ver«iict ? Uf
ssid, too, that ** its impudence disarmed in
wickedness." I believe that h a new tiguif^
not to be found in poetrv or inrnting! Imps*
dence disarming wickedness ! Why, geoils*
men, that was in plain words telUng the jury
(if they had at all adverted to what he uiJ}
that they had nothing to do with that advsTi
tisement: for if it is not high enough to bt
wicked, it is too low for the verdict of a Jarfii
You have nothing to do but with kgal wicbsi*
aem : a man cannot be prosecuted for scumblf
aad impudence. Bui where, iu whidi wiadf

* 8oe fol 3, p. 608,

A. D. 1777.

if 4M mtmOnimHH, 'n Ibia »earriK(<r "<><l
Billn^iiplef In nliich Mnience it llie nn-
tn««nMf rilMldry tnilbalilFrilasb? BnliJrnluh,'
I bclirre, it K lerm itken from the drunkurd's
UU«. BaMerduli (il' il meuns nny iliinir)
me*M t ruile rn'mure, a conruseit ili«cour«e.*
DoM he priMecule b rude mixture ind n con-
ruaod diicniirsef IF ill nitu «ad ils ubjeel Are
diffiL-nll 10 Iw luund oul, is lbs! au or^'oct iif
mntwulioDf In lh>t case, it might ■« well
D«Te bnn vriueD in nrhr^w. Bui, gealle-
men, ail thi« wat merely to inflame and mislead
wo; and tliererorc I ilidl uol dwell upon iL
BOI, {cdUenieii, wIijIeI lie hu been miMpend-
ktg ^e lime oflbe Cunrt in ibat wliicli maket
DO pait nf llie ioforiDalion, lie bus not laid one
timgit word ibout Ibal which diicB make a part
oflb« informalion ; I mean ils ralshood. tals-
kooj H 0 pari nf the cliar^, uid It is a criminal
Md an odious pari uf Ibe cbarge ; and if you
4>Brt And il in ihe advertitemeia, ^nu cannot
mplele Terdict. FaUbood la a part of
' r which he liaa exhibited: aad if
il it wanliD^, you cannot iciie bim
Genllemeo, I shall (iroie ihe atser'
1 oT the adtertiiement to be true by aiy
'^rnce ; and 1 will not now delay you wilh
M And, |[enllemfn, I shall prorti to you
iiriiig which may DOW perhajis be s lillle use-
■ m1 10 m^ duracler (if il EutTeri under that
mtitcmt ol nillin^gate and balderdtsb, and in-
Cdrtiary Inli-Dllona, with which I am chnrged) ;
fn I *hall nul unly prnte tliai ihe motion was
tatit, the mnoey collected, and paid, but I
» yun, that ihe adrettisemenl nf
n did pruiluce Ihe Gecood, The
rary-faenersl aays, Il was only a relch to
■j In the face nf the luw. Il wai a f^tch. It
MCbed Ml. more : and I will prove to you
dM it did ID, I will lell you ihe pcnon who
mu it, and Ihe pereon who conteyed it ici me ;
^Ha•e ihe purpme for » hicb ihe mnney was
■itMi, the ijenllefflan who aubscribed it, and
Su cenilemin who coiiteyed il, are all wnrlhy
•f ach oiliFr. Tlie muoev came from drSte-
phMiTht^odnre Jaiinsen, wlio ia ncrw oul of Ihe
KMh of Einv ; it wai coiiieyeil to mu by Mr.
who, Ibnngh \it\ag, 'a equally

III) ihv rather inclined to prove
men to y«u, beeauiie hit loril-
:;v to the jury on one of the
itig ihat nil «ldeoceli»d been

[72fi

rfnnpro
Km firat

bflbep

iherelbre lieli«i

w«rc nn penon« eapable of such an act; he
•"■fled, »nd therefore he believed !" Itiantolcr*
abreiQiiioualiua toajury ! He hopes I lie re ar^
nomciicaualileorsuchanaot! ft'bal Jismalact
miisi ihia be ? Il must surely he snme aet that
'xeludesn man everaller, from being admittnl
to sit cheek \iy cheek, and lani^h and iuke to-
gether with his lni<Ulii|>. It must surely be an
act ortliai kind Ibat a man muit he held in ab-
horrence liar il. No houeit man could keep ona
company after il. ■> Ue hoped there were no
men capable of such au act, and iberefore he
heliered ii." Afler Ibis the Allorney- General,
from his lordship, look Ihe same cue : anil
therefore, in a 8uci:eediDg trial, be ton insi-
nual«d, Ihal the aubscription was a mere pre-
tence (n Tctch lie calW it) to colour Ibe adfer.
iteinent. I own when his lordship hoped, and
, 'I was in some pain for m^
lid lliouKh I sliHtd close ai bin
elbow, 1 did not know but he uii)[ht beliere
next, that there was no tuch persnn at myself
existing in Ihe world. And yet I have heard hi* ■
lordship say, on other trials (and iflroisrepre-
sent him. lie will do iu«lice in himself). I hare
beard him say--" Wliai ! shall not a judge
and a jury knoirnnd lipliere what ciery ona
else knows and beheves:-"' — (and il was upoo a
trial foro libel)—" tjhnll thry alone be sup-
posed ignorant of those knoun and notorious
(nets which nu one else in Ihe court doubtsP"
As I do nol iberelore know which of those two
dociriiies Ills lordship may adopt on this occa-
sion, and cannot lell uhat he may helivre (1«-
CBuse I ilo nol know upon all subjects what he
may hopp), T shall Uicrelbre prove the Irulh of
my advertisement. And when I have done
that, (KM haps, icentleman, you will be told (as [
have beiril il said) that ' talse' in the informa-
tion Btaqd» for nolliing', and ia nol a part of tba
charge ! Ihouu-h obserte, if I -omit proving tba
truth, Ihey will nol fail loa^^^ravalelhecbarga,
by iniinuBling the fatthood.

Nn* Ihen, irenllemen, I come to the very
f^teai oHViice of all; to that which does indeed
inkke a jiart of the iufnruMlioo. but has nude'
nu pan [e):cepl in assertion) of the Attorncy-
Genvral's harangue: I mean, cbarihng l|i«
king's troops wil% murder. I aiu tola, ibat it
is not for any of llioae ■saertinn* aboirt nhscrip'
lion, and payment, and cullectfoti, (hat I aiu
prosecuted; built it for charginff the kiw'i
Ironps with murder. There llie Ailorney-O^
neral i>Hid, be " put bis finger."— i have HOC
chargnl the king's troops with murder: ihctA
is uoi uny lucb assrrtioii in Ibe ailTcrliaenaent-
There vin be no charge, no irulh or Rilshood,
an assertion. Gentlemen, I bavc no
■■erird, that there were any |>«r«oi»
lerted llial tbey ha*«
tel'l behind Ihrm widows, orphans, or a^^
parrnii. Pcrha|>a no persons were inunleml,
perhaps no ppr«'>tis w*ti- eti^n killcil ai I>s.
lutjlKo and CnneurtI nu the ISlh ofAiiril )7i5.
PcrbKps, if thera were any killed, they w«rA
■lU'li m have lelibeliind tham neiihet widow*.
I, nor agc'd parcDU. Tbe adieit^^^^j^^

723]

17 GEOBGE III.

Proceedings ogaintl Jnhn Home,

doet nn( assert nny of thote things. Tlicre i«
imlreil ■ dvscrijition in llie ailTrMiKmaiit «l'
certain pemnn^ tor wbiMe use the cMleiMion wu
made t if ilierctre na sncb persnng, tlifc in-
tpndeil chniily will not take [ilAce. I inileed
f iippou (he charge lo be Irn^ : ollit^rs bad
charged ibe king's trnnps wilb ibis murder
nine days and more berore my a>lverli9em«ul.
I have nhewa you where ; in llie snnie neni-

Caper nrMay Ibe 30ih and SIM. 1775. sittoed
V the ageni nl'ibe pnitince. I sup)iuKd that
ciiarcetrue; bin I did iiul make it. 1 took it
as I TuuDd il. Thecbarge was in all llie news-
papers (if May SOlb ind Slit, 177 j. Why
not prowcote lliusc ihal brongiit Iha charge?
The charge was aulbenlicaled in Ibe most
format mnnuer: origiual affidavits, taken nn
(bespat, were Indged with the lord-mayor ot
LotiddD. Therharge wan nnt aonnymous; U
»B« signed by the Bg«iit of (he province where
Ihe murders nere ciimmitled; it was signed
by |VIr- Arthur Lee. He [luliticly avoitnl it
every wheie. He sal daily In (his court, with
ihe fhieC justice and ibe A Hartley -General,
publicly as in aitvocale ; be was retained i>n
Anc of the trials : he stood Up(uSTun'i(; his
lurdsbip knew wha( he was goinir to say, sod
wonld not permil him to speak : it nas in ibe
<irs( trial at IVeslminster, Yon see ihen (nay.
you know It IVom a tboo&and publjcalionsj thai
lliis was not a wauion suggestion uf my own ;
nor ye( titfhlly taken up upon a alight rumour ;
but i( was so given to the public, that no man
could reasonably doubt of il. Tbe Gazeite,
published by anthorily, ilesiied every mnn lo
•tispend bis belief; in declared answer to which
these alRdaviis came. 1( has never since been
contradicled, even by thai very authoiity (bat
desired us lo suspend our belief. But, i;eiiile-
men, (bough I did not make (be charge in (liis
adverliseroenl, In save trouble 1 am willioelo
have it understood, thai I did make (he charge in
the adverliseiiiHJl : I do again make it noiv. 1
did not word (ha( part of my adverlisemeut in
the deacripdve manner in which it stands,
thriiugh caution, and as a subterfuge to insi-
■iimte a charge which I was afraid lo make:
■0 fur from i(, that I do tell yon again I ulloiv
the charge. I believe, getitlemeD, these mur-
ders will never be (urgntleti us long as the his-
tory of ibis eouulry shrill remain: fur the mur-
ders of Ihat day, ihe igih of April, have been
productive of all ih at slaughter which lias bap-
pened sluee, and of nil that n-blch Is still to
come. Suppose then, aeotlemen, if you please,
Ihat [ had charged the kiuc's Iruops with
murder. Well! what then? How follows the
libel against the king and the government P
for you must lake noliee that the accuaatisn in
the iDforuiatinn Is not (ha( I have chained i\\e
king's troops iritb murder. Tba( would not
have supported an iufurniaUon ; an informadon

king and the gnvemment with murder,
to-day ihe genllemau has spoken a little mort
plainly ih&n be did belitre, Xo-dny be says,

(bat " I have charged (he pfrsoni cmployad '
by gavernmen( ujlb being gudly of murd«r ;
■niTcaDaequenily (hose wlm empUiyed tbem are
involved in ibe same cuilt." This is Ibe charga
agaiiiii me. llnl huw doei he draw the cou-
sequence? Is that to be found in (be advertise-
men( ? Does every man (hat says a soldier has
coininilted muiuler, involve Ihe king and the
government in the cumniisslon of that murder f
Gentlemen, I have nut. in my adveilisemeot.
even charged the mimstrrs. But if 1 had, I
ho|)e the ministers or the troops are no pari of
ibal governuienl which ynu acknowledge: U
leas( ] am sure (he tronpi, do nut make • g
uf that government under which T was bl
(bev do nut make a part of that gaveronieii
which I have repeatedly sworn, and : '
belA (be most railbful and firm allegianc
1 will say muie, (hey do nut make
(bat governnieiil under which I
silently lire. Indeed, genllemen, lU
ney-General teems (o (bink (be trtiO|iaM
thing more satu^eil even (hun the goternn^,
for he said, in ag^avaiion of the chii'ge, 1
it was " not only a libel agoiosl gD*emn»
but even ar:aiust the soldiers in our servk
If he abould happen to foi get this a\»o, t
counsel who aiinwered him at the time, and
took notice of it, 1 hope will retneraberil—
" Not only a libel agniiuit the government, (nil
even agaiosl (he soldiers in our service:" N
that (be troops are something more ihaa ifaa
goierumenl ! t believe lliey are intended lo b«
made so ; for ours is a government of iatvi, not
a goveromenl at will, either by troops, con- ;
manders in chii-f, ministers, or king. Cootider,
gentlemen, that (he king's troops are ouly lo*
lemted in this country for (he purpose oi h- u
reign defence. They have been bill of lata I
years loleraird in time of peace. They bats I
only an annual ex itleuce ; which existence «(► \
]iires yearly, unless regenerated by a yearly I
tote. Now, i:eol1nnrn, consider! Hanovt- (
rlans, Heosiaus, Urunswickers, WatdeckerSt a
ihe very Indian savages (lurof Iheae are tb« I
king's troops now romposed) all ibese, by Mr. ,
Al[urney'sdoc(rine, make a pari of the blessed
gOTernment of (his country ! and lo cbai^
any of those king's (lOops with murder is (a
be guilty of n seditious libel against the king
autt agsinsl (be government ! (ienltemeo, n- ,
fleet. Have not (be king's troops often b
charged with murder? Uoes there pais ay
when some uf them ai'e not couvicted \
murder ? and, in the last gnod old king's r
were ihey not executed too for murder, i
ibey were convicted? It i« loo nolorioa*^
libel to charge Ibe king's troops wilb miirdi
1 believe nobody ever dreamt that ilsraaati
against the government, or even againtt |
ministry, to say that some of the king's irr
hare committed murder. If such a cbarg
false and malicious (and a false and noalid
charge may be made agamsl Ihe troops,!
well as against any other person) it may b
libel against them, just as it would be aga'
any other of the king's subjecta j ud t

•i Altorney-

Jbr a Libel.

AwViMt'llMi mmc remedy. They nre nol
tttutr, DOT, I hupp, ileirer than we are ; ihan
mny other or the king's iulyveli. How long
bare the tn)a|is been Ihese iirivileged cliarac-
Wn T What U there peculiar Id tlieir cliaracler,
flitt to cliarge th«in wilh a murder shall lie a
libel agatnM (be Uajg and (lie gorerninf^ol f
SuppoM I li«il Mill (>i I believe 1 Tnit^hl truly},
and ai I know it has often been said, that many
Biiinl«r« liara bean omroiited by ihe king''

pat«Dli, do» any maD iliink that Iht' *

General woiili! ha»e proseculeJ ihi
lnii< libel ai^ninM tlie kiog^ anil the g^<
mml ? And yet the king'i pstenta are Just such
a* tie plcvves to make them : Ihey are of hii
Bwn br|re(li[ig, and much more ai be please!
la make them than eren his diildrrn. Bui
Ihe Iroopt? what are Ihey 7 what are Ihey,
whOM origin we know F what are Ihoac ivhu
araofourown counlry? — Many nfthem, fe-
laoa taken frnm Raola, aod rescued from the
gillowa. Of ihete are Ihe king'* Ironpi i-oin-
piNed. And is it wonderful lo charge the king't
tKapa Willi murder? Bui it is too ridiculous.
I am sure the A I turn ey -Genera) does not, be
»ill not, prtlend lu say, that every parliculir
charge against some soldier «r loliliers lor
nur&r li a ledilions lihel against Ihe king and
■ha gorernnient ! ile will not say so! Suppose,

Eenllemeii, some nf the kind's peace-officers
ad been charged wiih murder. Il lias often
hipjiencd. ConsUMei and peace-officers may
eti-rcise Ibeir authority in an illeeat manner :
ihey may kill men instead of arre&ling them.
They hare done it ; Ihey have been soniellmea
trtM for il. Are not ihey as much ihe king's
«Sc«r«*«the Iroops? Something more so, 1

E< ; Tor they are Ihe officers of ihe real
■WDI of the coaulry ; ibe officers nf the
And yet tra^erer any man prnseculed,
d any man now be pruieculed, if be
I a pack of conitublea with having com-
nurderi' Would Ihat be a libel againsi
Qtking and the govern meni f It could not be.
Qflilletnen, supiiuse Kime of ihe soldien aa
bnfial aa Kirk's lambs (autiliers, for tbeir cruel-
ty, known by that name) should renew again
In horrid barbarilies which Ihey cnmmitira in
Ot YIttt; would It then be a leditium lihel
l«aj thai liicy had committed murder I' I dn
M ny, nor know, that ihe hmg has al present
MBoay liis troops any lumln of Kirk's breed ;
hal I am sure he had in 1768 ; liecaiise I then
Wlhein mil only commii murders, but other
brbarlliet which not • savage hanily would
nnimit. 1 nw one of the kind's Iroopa run
tis 6iir<i bByiiDct under the shoulder- Hade ofa
>a>r man. <iecause he cnuld not get under a
'■il limr rniiiiiih oul of his way : 1 saw a wo-
■h Willi child wounded : a ginger-bread wo-
■H (Bunkreil u she sat at near a ifuarter of a
M» dMance. Were oot ihe)> murdered?
~ I ii«t IhosH murders cnminiltrd by ihe
klroopaf hv » numerona a body of the
T^— pa as those who cimmllted ihi: mnr-
f LnlnglnnF tientlemeu, there was a
' ' 'tknow Ittat 1 hui

A. U. 1777.
right to meolion his name ; but he mid he had
servnl as a surgeon under Braildock in Ame-
rica, and he liild Ihe justices of ihe peace, iJial,
even in tlint cuunlry, he had never seen murder
GO wickedly, so wantonly commitled. But
perhaps Ihe iuorney -General dues mean atill
to prosecute me for callini; tliem murderen.
Why should be not r 1 1 is bill nine years ago !
I don't know but thai, as soon as this prose-
cution is over (if you should esliblish this doc-
trine), he may follow it with another prosecu-
tion for Ihal libel too. The same printer can
prove it ; and I shall not deny il. But the
Attorney -General will, I know, from necessity,
be obliged to say, Ihat lliis is a very different
Ciise from chariring some iniliiidual soldiera
wilh murder. The king's troapn here, he will
aay, acted in thai rupacity, as the king's Iroops,
in • body, under their officers, und in a military
manner, ai part of the king's araiy. Well, it
may be so ; but, however, that is mure llian h«
has proved 10 you. tfjou believe thai, yoii
must take his word for it, or you inusi have it
from ihe evidence which 1 shall produce. But
if Mr. Ailorney General makes ur sllemptsio
make Ibis distinction to you. geulleRieo, be-
tween individual soldiers and those acting as
part of an army, 1 must then inlreat hira lo
draw Ihe line. None has yet been drawn ; but
at do it before you can give him a ver-
ir he will give up, as I am sure be will,
ihat to charge any individual soldier with a
urder is nol a sediiious libel agsinst Ihe king
id bis government ; but shall insist, that to
charge a body of Ihe king's loldicrs, acting
inder their ntficen, is a libel againM Ihe king
ml ihe governmeni; be musl Ihen draw sums
;ne. fie will Itll you, I suppose, whether it
I a regimeat, ora company, or a serjeaul's
guard, or a corporal's guard ; what numlwr,
and how commanded is il ; thai draws The line ;
thai makes it an offence against ibe king and
the government, and makes it a scdiliuua libel
0 cbarife them wiih murder. Look alter him
—see if he draws you thai line. He imist
ikewwe, gentlemen, when he has drawn it,
ihew you his lam fur it -, and iheu he must
irure ihal the Iroops I have charged fall oiihin
hst line : and if he does all this, if he draws
that hnc. and eslnblishi-^it by Isw, and proves
that the Iron|is I have charged ere within that
line which he eiiablishea by law, itien you are
bound lo give a verdict a gain 1 1 me. And if
he would do that, 1 would at once save bim the
Imuble of a trial. If he can druw that line, I
vill nol keep the court a moment.

Gentlemen, 1 will be bold to aay, ihal lli«
thole army loicetber, Ibreigners and native*,
vith all their officers, and ilie cimmauder in
hief, — aye, and the king himtelf si their
lead, — is no part uf ihe governmenl of Ihia
counlry ; nor can they lawfully put any man
lodealh. I said, geotlcmeu, some time si^,
Ihat there never had Iwlbre been bruujfhl a
proaecotion upon siicb a charge as this. Now,
It i* true, Ibal a pari iudeed of the charge
•gajiwt bouesl John lilbutne, upon out of b^

727]

17 GEOHGE III.

trUls, lui, (faat he had accuHid the widierj of
biTiog comrqilted murder ; and hii vordi were
(tesidei the word ' murder.' which beespreued
U leneth) ihM they hid cDmmitled murder
iy " iDedding the blood nf wkr, in Ihc lime of
peace:" and be hid likewiie called their Ke-
Seral, by name, a ■ murderer.'* But. f^eatle-
nen, it must be Tememl>ercd, that litis pmae-
cnliOD waa brongfat trben Uie army were in-
deed, lU facto, the ttovprnineal ; wbrn there
vae neilher king nor pftrliameut, but the army

Proeeediagi agaitttl John Hone,

.P»

memwy in what light milita^ excBali«|
IB! alwaya hitherto bem contider«l in 1U«

oT the milittij
execution at Glenco.* I puhliihed the paiiipb-
let, Ihat all the world nii|:hl aee it. 1 mai-
linn it, because it ba|i{iened abonl ibc tine of
the firit eitablithmeat "f a alanding' armj (ia
ill preient form) in this l^mi. ll i« but ahoal
t!i|[Ltj yeant since. It happened imniedialcly
after the Rerolulion. Now, ueDlleiiieD, «bo

* See the Proceedingi rvapecliof: the Km-
were at Gleoco,.fal. 13, p, 879, of thi*C4
lectioD-

govenied alone. Then indeed it wai natural ; were the Glenco men ? " ll in certain and >e-

enouffh to call the iroupa (ho KDvernment, and ' '-" — ' '— -" "-" "■— '— ' ' ■- "-

to re^on it a aetlilioni libel agajnat the govern-
Ipent to charge them with murder. Siuce ihat
time, tbe Atlomey-Oeneral nill find no inch
(rOKcnlion. Honerer, gentlemen, even tbea
t London Jury, raiibful to their duly, in ipiie
ofthe JD<^(eaaiid tbe Atloroey-General (who
then held the very aamc language which ihe
Attorney- General linM* now), in ipile of all
ibeir art*, at that perilous lime, a London Jury
in Ibii very court, uttinjif in ihoce very placea
vhere you now lit, did juslice to Ibeir own
eODiciencei, and ihey acquitted bim, as you
ninat me, unleaa you ctiute to exchange the
laws of tbe laud, and have military esecutioo
lake place in Ihii country. A (tandint; army,
in tbe time of peace, ii a monaler to tbe free
Donalitutioii of this country: it haa hut very
lately been auffered ; and one of Ihe great ar-
guments that haa been urged by tbitse who
nare from age to age oppoaed a standing army,
vai, that Ihey would t>e tli en cefor wards used
ta they now are. The peniioneri of the crown
and the frienda of arbitrary . gvv eminent ridi-
culed luch a sDpposltioD. They aaid, it was
impoaaible that such a lime could e'er arrite.
I hare read their arguments ; I am sure Ihe
nnlJeman who now proaecutea me hns reod
Uieir argumenta. Tliey were then afraiil of
tbil lue of troops; and therefore those who
opposed tbe establish meat of the army gare
it aa their reason. Gentlemen, tbe courtieri
ridiculed Ihe thought Ihat such a lime cuuM
ever arrive, or Ihat the soldieri in lliis coun-
try could ever be eo employed. Now, what
would our fathers have said, if aoy chief

{'ustice or allomey- general hail at that lime
dated that the aoldien should not only be so
employed, instead of tbe civil officers of justice,
to inforce the law upon Ihe subject ; but that
tbey should also have a privilege, when
tbe^ were employed, which the officers nf
justice never pretended to? Any mao who
liad broached such a doctrine (before Ihe crown
had got a firm possession of a perpetual stand-

ing army) such a man would have been booted
at oy both parties: hy tbe court (not iliat tbey
would have disliked Ihe doctrine, bui) becaiifw
Ibe aecret would have been let out loo soon.
Bnt now thia same doctrine haa made the chief
jtittice an earl, and will make tbe attorney-
getKral a chief justice.
GeoUemcn, 1 niut entreat yon to recal to

• VoL <t P- WW- »»?•

Hr. Laing, in relating the ' last splendid ti-
jdoits' of Dundee, has eloquently celebrated tks
illustrious parts of his character : Imt^limiirf
commcndalioo of the hero would not satiif^
the zealous prrjodices of the writer of fail
< Uemoirs.' By the blind or dishonest narlit-
lily of this biugraiiher, high praise is claimed
for the 'mercy ana lenderneaii'' IheuneipectJ
and Dudeaerred clemency' ol Claverbouie, u
minister of' all tbe paternal care' of Charles ut
James for the presbyteriaos of Scotland. Of
Jamea's paternal core, which pemitud iht
execution of wretuhed ignorant eulbuxisitti
whose blood he said would he upun the naliM,
the atilbor has given an instance in the folla*-
ing curious alory :

■' His grace the duke of York, who ms
concerned to hear of ihe commoliuns and trsu-
blea in ihe weal, ordrrcd llial anme priuMn
should be brouelit to Kdinbori;!) iii bs ei-
amined. Accordingly there were three msIi •
who were found so ignnraot and simple M i
their exaroioationa, tiiai iiis grace gave onbf* \
to set them at liberty, upon ciiodiliun lliallbtj
sbould aay ' God savu tbe Kini;;' which ihcf
positively denied; then his hi^hoess askrlif i
there was a Bedlam in the country to puttlicn 1
in, and declared, that if ilif>y wtre hanged, it ■
was his opinion, their blond was on Ihe ustioo :
notwithstanding, accordinj; to ilieir sentcDLVsf
condamnatjon, they were brought to Ihe plies
of execution, and his grace beuig uneasy, senl
the lord Roscommon, with a paidon In llieMt J
who came close to the Ncafluld, and (one «>' 1
them being banged) made a handsonie specck I
to the other two, offering them their psrduB,i(
tbey would say ' God save the tving.' The next
to Ik banged was John Potter, who seeioed »
be i[i a doubt, and it was lielieved would bais
accepted of the pardon, but his wife took hi»
by Ibe arm, and almost pushed him over Iks .
ladder, and aaid, ' Go, die for the good oM |
' cause, mj dear ; see such a man' (roaaaisg -
the banged man) ' will su|> thin night wilk
Cbriat Jaaua {' so in fine, Ihe other two wb«
bangnl: bnt nbu was tii« wuomb'i im^

»1

JoraLiitL

A. D. 1777.

[7SQ

be daairbter took place in very troabletooie
Miaicl UoMS, el tbe mnmeot of ike Revo-
m: it wu sfter repeated proclainetions of
idemnity and perdoo. Tke laat proclaint-
Ni elk>wcd them fife rooniha (from August to
iDoery) to come io end take the benefit of
lal procleoiatioo. About aix weeka after tbe
Kpiration of that term, tbe alaughter bap*
Mied; end abonl 95 or 30 of ibem were
illed. Now, gfcnUemen, Jet ua look for tbe
reaona which were given for that alaughter.
beaecretary ofatate, Stair, givea theaeree-
Hia for that alaughter : iheae are hia worda :
Since tbe go? eroment cannot oblige them, it

obliged to ruin some of them, to weakeu and
ighten the real.'' Hegofa much farther: —

li ia a great work of charity to be exact in
xKing out that damoable aect." They w^
oi uoly obliged to do it, but it waa charitable,
le Koea farther : — '* for a juat example of veo*
eeoce, I entreat the thieving tribe of GlecH»
my be rooted out to pur|M>8e."— -He aeya it
raa '* a great advantaife to the nation, that
net thieving tribe were rooted out and cut off.**
-■* When you do your duty in a thing ao ne-
eaaar^," (there waa a necesaity, you aee)-*
' to rid the coimtry of thieving, you need not
rouble yourself to take the patna to vindicate
loaraelf b^ shewing all your ordera.''— '* When
tiu do right, you need not 1'ear any body."
le adda farther, gentlemen, — *' Here ia a fair
ccaaion for you to shew that your garriaoo
ervea for aome use." — Theaie are hia inatruc-
iona ; tlie aecretary of state's inatructiona to
be troopa : it was a fair occasion to shew that
beir garrison aerved for aoroe use.—** The
ting's justice in this, will he aa conapicuous and
iseful aa hia clemency to other8."~-Can any
Burder be dressed up in fairer terras? I defy
be Attorney-General, with all his abilitiea and
brce of language, to say any thiug in behalf
if this murder at Lexington, in more apecioua
frma than secretary Stair haa done. *' It waa
sbarity to be exact — for a just example of ven-
j^raoee— I entreat the thieving tribe of Gleuco
■ay be rooted out to pur|)ose. It ia a great
idvaotage to the nation that tbe thieving tribe
acre rooted out, and cut off. When you do

n having her husband hanged, aurprised
naay."

Mr. Walter Scott, in his « Lady of the
LAke,' and * Vision of Don Roderick,' has
idded illustrious renown to *' the various
ichievemeots of the warlike family of Gra*me
If Grabame."

* Dignum laude virum musa vetat mori.*

Tbe following is the passage in Dalrymple,
a which Mr. Laing, as cited in vol. 13, p. 817»
lUodfli: '* Dundee had inflamed his mind from
lie eerlieat growth by the perusal of ancient
■gdiy liiatoriaoa, and oratora, with the love of
Ih great actiona they praise and deacribe. He
r. reported to have inflamed it atill more by
mmiyt t» th« ulitDt Mog. of tbe bigUaod

yoor doty* io a thing to necesaar^, yoli need
pot trouMe yoarself to take the paiot to viodU
ceto yourself by shewing all your ordera. Whea
you do right, you need not fear any body.--*
Here ia a fair opportunity for you to shew that
your garrison aerves for some uae." And a(\er
It waa done, be says, ** All that I regret if,
that any of tbe aort got away, and there ie a
necessity to proaecute them to the utnMial."-»i^
Theae are the specious reasons given for tbie
alaughter at Glenco by tbe then aecretary of
state. But, notwithstanding all Iheie fiae
reaaons of the aecretary (who wouUl have beea
▼ery glad to bare bad it conaidered aa a Bedi<4
tious libel against government, for any man to
say that that morder which ho had anthoriscd
was a murder : he would have been very glad
of this doctrine ; it would have saved himT be
bimaelf acknowledges in a letter, thai there
waa *' moch talk at Loudon, that the Glenca
men were mordere^l." There waa mudi»
oboerva; not a little; tbeie waa much talkal
LondoD thai tbe Glanoo men were mor<«
dered. And tbe parliament of Scotland, whe
took up the matter, aaid, it had made **.mneb
noise both in Scotland and the real of tbe
kmg'a domieiotts." And, gentlemen, it waa »
Tery nsefiil talk and noise. You will find what
it produced. Now, wliat did the king? re*
luctantly indeed ; but it produced good. What?
did tbe secretory of state.^ What did the At-'
tomey-General? File an information forcbafg*.
ing the kiog'a troopa with murder? (words andr
writing have the aame effect ; rash words, in-»
deed, shall have an exouae where a deliberate
writing ahall not.) No ! there waa no infor«
matron for a Ubel ; hut the king granted a oem-
miaaioe for an enqiury by what pretended au- <
thority that shmghter waa committed. The
oflicera of atate at that time knew what they •
were about, as well as they do at thia time.
There waa a defect in the commiasion. Gen* ■
tleroen, in thia first commission which was
granted, the officers who had the drawing il
up, no doubt, took care that there ahould be a
ilefect. A defect there was, and the enquiry
did not take pUce. But the much noise and
the much talk cootinueil ; and two years after^
wania the king waa forced to grant another
commiaaion of enquiry ; and then care was
taken that there should be no delect. And that
commisaiou of enquiry waa put in force. 1 1
waa a commission of enquiry to some of the
noblest and the greatest in that country, Scot-
land, where the mnnlera were committed.
Gentlemen, what did tlioaelordacnmmiaatonera?
They reported, that the slaughter of the men
at Glenco was — ** a barbarous murder ;'? tbe
very Billiogigate laoguagfe complained of in
me. Theae noble Scotebmen voted and need
that very expreaaion, Uial very ribaldry. The
Attorney-General baa takeu hold of a whole
nation by calling it Billingsgate and ribaldry.
Here ia that very word, ** murder, barbarooa
murder," applieil to the king's troops, which -
offends that gentleman ao mneh in my adver».
tiscment, lie may aow ice, that 1 too hul %.

T3I]

17 GEORGE III.

Proceedings againa John Hame^

|739

{ireeedeDt for it After the oomniiMionen bid
diechtrged their duty, aod made their re|iort,
that it was a barbaroua murder ; the parimiiieiit
of Scotland took it up» and they voted the eanie
Billingigate— they TOted that it wai a ** bar-
baroot murder." And they addrewed the
king; and in that addrete they called it a
*< baibaroui murder." But that ie not all.
Thejrjnttify the king. They find upon their
enquiry, that the king's instructiont had been
oontradicted : for hie initnictions were, that
the Glenco men should be prosecuted " in the
way of public justice, and no other way:"
that is what they 6od for the king. And yet
they were no friends of those men who were
murdered. They did not justif)f them, nor ar-
raign all the measures which bad been taken
against them, by finding it a barbarous morder.
But they justify the king ; and they acknow-
ledge tbemself es so well persuaded of their
guilt, that they say, if the king had prooeedcMl
against them according to law, and had taken
their lires, " they would hare met with no
more than they deserved." However, gentle-
men, I suppose that in that declaration they
were rather nasty : for there were women and
ehiMren, and old men of 80, killed : and 1 do
suppose, that if they bad boen proceeded against
according to law, the infants at least would
liave been spared, if the old men and the wo-
men had not escaped. They go farther. They
•ocuse the secretary of state, Suir, as «* the only
warrant and cause'' of the slaughter by his or-
ders. They find that he <* did, in place of pre-
acribing a vindication of public justice, order
them to be cut off and rooted out in earnest, and
to purpose ; and that suddenly, and secretly,
sind quietly, and all on a sudden." It keeps pace
^ery much with the murders at Lexington aod
Concord. That expedition was secrotly, quiet-
ly, and all on a sudden ; an expedition at the
dead of night. They find that he directed the
aoldiers, that they ** should not trouble the go-
▼emment with prisoners." Now the govern'
ment cannot be troubled with prisoners; the
ministers might: government is not troubled
with uffeiiders. He promises them, that " their
power should be full enough :" and he orders
them, that they should ** begin with Glenco :"
and liis words are, that they should <* spare no-
thing which belonged to liim." Military exe-
cution differs a little from the laws of the land !
They accused the lying's troops with murder, for
executing the orders which they had received :
they addressed the king " to order his advocate
to prosecute them :" and they desire him, that
he would send the troops home to be prose-
cuted: ** there remaining—" (these are their
yery words) " send them home to be prose-
cuted : there remaining nothing else to be done
ftirthe full vindication of his majesty's govern-
ment from so foul and scandalous an asper-
sion." There remaining nothing else to be
done! Not an information for a libel, but an
eaquiry into the matter, and a prosecution of
the oClenders ! Now, gentlemen, then I must
iatrtat you to obicrvf what the troops art ca-

pable of doing; and I did intend ta' have read
to yoa the cruel particulars of that narrative ;
but it is well enough, yon will read it another
time at your leisure; and it is yoor convic-
tion, more than your verdict, i seek. "- Yoa
will know where to find it Yon will aee in
how barbarons, bow wanton, how treacharons,
and bow cruel a manner they slaughtered men,
women, and children. And this they were told
was their duty ; and this they thought a proper
way (as Stair, the secretary of state, who wis
a military man ; they thought it, aa he told
them) a proper way to shew that tbey aerved
for some use. Gentlemen, you find then, by
this report and vote, that murder may k«
committed by the king's troops without and
even against the king's orders and instruc-
tions ; therefore 1 comdude, that it is not ne-
cesssrily a libel against the king and the
government to accuse his troops with nar^
der. Indeed I go farther, 1 say, the kmf
cannot give orders for such a murder. It ■
an impossibility : nor, if it were possible,
would such ortfers justify the act. Jt exceeds
the king's power ; and would still, by whom-
soever authorized and committed, continue to
be a murder. Gentlemen, you find too, that a
secretary of state may be guilty of exceeding
the king's instructions (as in this case of Gleneo
he was upon enquiry found to have ilone).
And as a secretary of state may exceed the
king's instructions, so may all those other per*
sons through whose hands the orders pass nom
the secreury of state to the soldiers who
execute them ; consequently, it is no charge
against the king or the government to chaige
the troops with murder. But, whether the
troops have orders or not, you see, that the
king's troops who commit the fact are never-
theless e:uiity of murder, as it has been here
voted, though acting under orders. Now then,
gentlemen, I must l>e<r you to compare that
doctrine concerninsT Glenco (which has never
been arraigned) compare it with this doctrine
of the Attorney-General concerning the soldiem
at Lexington. In the trialo of the printera be
said, and he saj's now, that the advertisement
is a seditious libel against the government, be-
cause it arraigned the employment of the king's
trao|)s, and called the victory they had obtained
a munler. There, he said, he put his finger;
** for this," says lie, ** arraigns all the mea-
sures of government ; quelling rebels armed,
to call that murder." Now I beg of you to
consider what a number of things are lef\ out
in this manner of reasoning, and what a num-
ber of things are taken for granted. In tbe
first place, it does not appear, nor has he off*ercd
to prove any such thing, that the slaughter at
I^xington and Concord was a measure of go-
vernment. Arraigning all the measures ofgo-
vernmentt and yet it does not appear thai
this was a measure of government ; I mean,
even according to the abused use of the woid
government ; I moan, not a measure even if
the secretary of state. But if it had been, be*
doM it follow that, by abusing the meaiucitrf

>r a Libel.

of M

all ilie mea-
nn it I'ullow

MietoT^ovAronieiili' Sup|i(u«
iDeuure of government, liow
thai 1 cooUeaio all .' May nol n man coDileinn
tb«l measure, and yet approve all Ihe lore-
guinK ? 1 ilo not mean to be uuJerslanil thai I
■liptovellie loreRiiiiiH inesBiires; I alilmr them.
But there la nothing in the ailverlisemenl tie-
tore yau which cuinJemns ihe nieasures ol' gn-
ferntumt directly or iodirectly : it relatei lo
DO oilier meoiure htit merely lo that one ; and
yau are nol Id uouble yourielvea with whul I
may like, or what 1 may nol tike, hiit what I
ha*o eK)ire*sed in llial aitveriisemeot which i*
Krore yon. For In ihla caie of Glenco, it ii
IVil*M ibal llie nohle com mission era whnrol«d
it A ImiWoui murder, did nol ciinitenin all ihe
nMSures ol' goternoienl: for ih try naid, "If
the king bad prosecuted Ihem hy law, and
lakM ttieir lives, he lisd dune no more ihaii
jwttce :" il is plain llierefnre Ihey did not coo-
4Hin all the other measures of governtnent,
tvl only (he slaughter liy ihe trnopa ; for lliey
lOBporled ihe other mraaures of ^verDmem,
loalbat at llie rhtk of Ihrirlivea and fortuiita,
to'l, ({entlemetl, 1 know of my own know-
ttilge, and I dure say you do, many persons
who have nul disapproved of all those preceding'
ineasures relative to America, who y vl did dis-
UjOiQfe nl' ihal rslh and »aoton transactinn.
tSn, gentlemen, as for the ' victory, ' ] ihiuk
it irill not appear In tie quite so complete a vie-
Imj ■■ tliat al Glencu! and theretbre you slill
aw, that such a victory ai Ihat may he called a
ninrder. Gen(lemen,,rurmyowii part, I do nol
ItesiUte lo declare, llial I atilmr such vidoricB ;
vicioriea by suhji>cl upon subject! And as for
■ucU a viclory ■■ this, I do declare 1 think that
Uie brows ofsueh conquerors imiead of laurel
«huDtd be crowned with wreatlii of hemlock.
A tid at for his " quellinz of armed rebels !"
^ver7 word is falshood. They were not rebels,
bor armed, nor quelled. They had committed
no act of hotliliiy ; ihey hml made no attack ;
*liey were sleeping quiiilly in their beds, una p-
t>rcbensive of any attack upon themselves, al
tbe time that this expedilion took place: and
^Ift 1 shall prove, genllemcD. Wtial reason
him jou t« believe ihal lliev were in rehellinn,
^WCMtlie Attorney -General's saying so proves
tbMD to ti« in rebellion ? for he Iinn oRere<l no
proof to yoii of it. Ilia now — (and pray con-
^iijer ihw mailer ahoiil rebeli ; Ihougb I think
>t doea nut matter ; for a rebel may he mnr-
*^9tvd) but consider, it is now Iwo years and a
Vuner since lliis slaughter was commilled ;
*ad yet, lo ihia day, no person whatever has
haui pmaecuted aa a rebel. No legal proceed-
<«gf of any kind have taken place. 11 is Iwo
)un and a quarter since lliai execution upon
the reh^a, as they are calleil, and lel no proof
tfrcbelliou: and yel you are In believe, that
ib^ arc rebels! The Attorney-General, iflhey
Venbela, abould do his duty: be should pro-
Hnte.

.21ow, genllf men, observe only another coo-
1 Uie doclriuea wbich are brought

A. D. 1777. [734

hetbre ynn. You will be told, thai if Ihey were
mui tiered, ilia murderers should be prosecuted.
Yuu have been lold so. Men are not lo b«
charged nilh crime* ; Ihey are to he prose-
culedbylaw. So Itienweare not lo know,
we are ool to Judge of murder when il is cum-
milled, lilt Ihe law helps our judftmenl. And
yet. observe, we are to jiiilge of rebellion ;
which IB a crime surely more difGculi lo b«
BRceflaiiied, and about which there have lieeo
more doubts and diapulea than about niunhT.
Ifa man, out of Ihe court, exercises hisjiidg-
meDI about a murder, he shall be puuialied ;
but he is at the same time bound at his peril lo
exercise his judgment about rebellion ; lokiuiiv
what is rtlellion, and who bare commilled it.
And yet, gentlemen, I must heg you lo observe,
ihat if these very men, execuled by mitilarj
force at Lexington, liad been reliels; had been
taken iu rebellion ; had been prosecuted, con-
victed, sentenced, and had beeu letdiog lo ths
gallows by Ihe therilfi if these same king'a
troops had come and shot them, or run their
bsyonelE into thero, they would have comiDitled
murder. It I* not llieir being rebels ; il is not
Ibeir being sentenced — when they are even
leading to execution, a man may commit n
murder upon the convicts: and llteee troop*
would have committed murder, hail Ihey ex»>
culed the i^en even in I hat condition.

Geiillemen, Ihe same way of ibtnkilig of
military execution has prevailed ever since ihat
liroe. I shall not Irouhle you to repeat the par-
ticulars of ihe afTsir of caplaio I'orteous,* at
Edinburgh. These gentlemeu are, so little
pleated wilh military execution upon them-
selvea, that torieous was charged by ihera wilh
murder. Me was prosecuted, convioied, and
when be was reprieved afterBentence,tlie peopla
of the town execnied thai man themsdves, »o
little did they approve of mililarv execution.
Now, genile'men, there are at this moment
lieoplc lit repulalinn, living in credit, making
IbrtuDes under the crown, who were concerned
in that very fact, who were concerned in the
execiiiion of I'orteous. 1 do not speak it to
censure them ; for, boivever irregular the act,
my mind approves it. I beg you likewisea
gentlemen, lo recollect that moat wanton and ■
niusi wicked rebellion of the year 174S. In
what a manner was the (iciory over Ihem
spoken of in Smollet's " Mourn, hapless Cale-
donia!"— It is known, 1 suppose, lo every bodj
who ever ruads (Hietry, He calls il murilei: :
•' The naked ami tbrlorn taunt feel
" Devouring flames and murdering steel," See.
1 condemn his acl; I do not Justify It; but Ijft
was not prosecuted Ibr ii in that mild reign.

Gentlemen, it baa always been judged a me-,
rilorlous Jealousy in our civil offitcers; it wsa
in Janssen ; il was in some other slieriHii, wbo
are still fitiog, when Ihey rel'uiedlheaasisiaDc*
of Ihe mihlary U> execute criioioals. So little
proper are Ihe military, with or wiibout orders.

1

* See his Gue, toI. 17, p. 933.

TSl] 17 CEORGB IIU Proctedingi agahu John //rtfl

\'%\At nf doin^: Mid I did ioini
In ynu the trurl tnrtieulan af lb' ,0^, lu
but it i* ird( caoiiifh, yon will ' Su ibn,

time il yvur Ifiitnr* ; atid ii pnitfcuiina
ttnn, innr« lUftu ynur fcrri' „; ino mm,
will lioow where to find ' , y ,Ma tlir fstt,
|>uw turbamui, liow "■»'■ ,,) mo l»i(, fur lh«
BDilbDwcruelanunu' ,n. And I Ii«t««o
womeii, aod chddrw „| jou your»*l»r* i"'"
wwi their duly ; •(•■' ,, m Im Itkm in r«mo»«
n>y(a«Suir, th ,nonoo Linwiimpnl. itlo
a miliUr; ntut ,„y j,„„ |l,p murder'; awl
tlietn) » prtu' ,^ fo,;,,^ , grouDdlmt ch*^,
(•n tome u> ,„nB,li tboM! who HiargwIthMi.
tliii tppp ,, fill not prowcntviheffl? Brtt
C(inimr>' . .iii.uitl liavf |>rn»e<nited the tnui-
nt»ti ''„„(c!inrg«l them with the iinin]*r,

*•**•' yjita"!', I h«»e»lway»*l<»iiu ■owbo"
» v/^„il IwooMdosoonwiricwild. I
■ ^TiUircotf thiMW troops giiilly of tbdn
-^, Bill bu»i> that to be done f An art
--f '^irtirnl »«• luadP just hdVire the eomniii-
' ^ 'j ipJ il'"e murdPTS.to eiremiil tlip mordrrM
1. ■ "iiiiii'ial li)A(ntric«; and you will ploaaen
"'^ ^,rinbrr, tlial it i*aol tntiKBinre anartol'paT-
Vliin'cn' «■■ made in Eni[l»iid for the t»or«
■V^'-imly pxecmion of mi.rilerers here. An trt
■"' ,i.a.lea fe* yeam otjofor the morf8|«*)y
iiiioti of mu'dei'era in England ; and Ihil
breams il was thought a meana of il*Wrrinj
■ #ffeciualTy from imirder. Nowtbm
yon lo tonclude? What are you»
concrnde eten from the cirpiimBlance of delay
al'ini-?— *i>l either ll>»t what deters men fnW
i-ummitlin^ inn rdcf here, will not deter ikw
frniii comioiltini munler tliere ; or else, iW
il WM nil intrnded to deltr mi^n from ci

precedent for it. After the MmiBtMinnert bad
discharged their duly, aud mad« Iheir repon,
that it wax a barbaruiia murder ; the naHiam^nt
of Scottu[)il luok it up, and they nited ihe ««int
Biltlnt^bgaie — the; voted UiU ii wa« a " har-
barouB mnnler." Aod they addre»ed the
kin|r; and in Ihat address they called tl a
*' Uarharons murder." But that i« not all.
They jualify Ihe kin^. They tind ntiiin their
eni|uiry, thai the king'a inslruclioD* had been
CDDtradiclBd : for hia Jnalrnctiona wore, that
Ihe Glencu men ahould be proaeciiled " in the
way of nubltc Ju!iti<:c, and no nther May:"
Ihat is what they fiod for Ihe king. Anil yet
(hey were no friends uf Ihoae men who wrre
tnurdered. They did uol juatify thum, aor at*
raiffii all ibe nteaaure* which had baeD lakoi
B^inil ihem, by finding it a barbarous murder.
But they jiulify the fcinEl *Dd tbey aoknBw-
ledge theinneUea ao wHI pemiaded of tbfir
1,'nilt, Ihallbeysay, if ths king hnd proooled
■giinal ihcm according to law, and bail tab*
Iheir liica, " tbcy wonid ha*e met will'
more Ibun they deaened." Huw«**f, i;-
men, I 8U|>|iih« tliat in that drclaratii '->

*»ere rather baity : for there were wf--
children, and uld men of GO, killed
auppnse, Ihat if they had bevn procr
BCDOrding to law, Ihn infanls ^
Iiare been spared, if ihe old tr
men bad not eacaped. Tbejr
Mcuae ibesecreinrv oruu*
'Warrant and ciUM- of tfai-
den. They And Ihsl be

acribin^ a »iudicalioo ' '•^ jL*' 'll/'i

Ihem lobecul olfand > '^''^C'-^w

(o uiirmiae: end ibf . -O'"^^' ■ ' .m'

,i,:„i,...d.ii. ;>;;sr.*zff"

ry much with lb . . .^ut "'^KTr"

.'■^'^.

*ery mucfi wiib lb' . '• '^^ "^^W'' -. ,inii
Concord, That. \, '^J^^S^'^^JZ
ly, and all on . . ^^^^ , t^^.^, ,„..y

<lead nl

aoldi

No.

what wMiW

toy diipawionate American think <^cn of tbii
sinW tUfferrnce between tiHf Thb *Lt «»

rily were nio

upon'lhem. Obwrre, when Enpliiliinen iw
murdered, as small delay as possible sballW
suffered belween the fact aud the punishment : (
iu America, crery delay and erery powibleilif* I
ficulty! Wbal was this likely to produce bet
lautoal slaiighler on both side* ? ThesoWwj j
were «iCDiinigcO lo murder hy b pros|iert " ,
imiiunily; and tlie Amerieaos, by thstiffliw- |
nily of their murderers, were laught to delm j
and nrteoge thpm»cl»es. I beg youtoreM* i
leet what happened in Londoo onlv three*'
four yearii sgn. A foreigner slahbeo a co»™-
man in Palace- yard, Weslroiuster. TbeiiW !
man in ihe agonies of ilealh called out lir •
knife, Ihai he mi«iit do himself joalice (theft*
is iiolorious ■, I belieie tl came out opOD IM
I irial) that he might do himself jiutice; uM
f'^Jj1''*^TZ^ y'""' «'' BoWrt said, be knew that his murderer would K-pjT-
''•41*^1 »»" ''ml. HOnrceof law aldoned! Genrlemen. he w«i uibtakcn; hi«
i#^ir«<i!,^fr.mhlm,thal"Mme murderer WM banged: bol ilwMa Tcry niW-
Ca^ tfe''''^lM helor"- . trial, or ral ibotlgbt lor b>m, after the pantum for mUT;
*^rr-iV""r,«J •modol^gilimo.'nD der which had 1 hen been recMllj; gratitt*
'^'^JL" "^ " sianXTwiinie i 1 DOl For take aw.y from men a rebance .njhf P^

>•

v\

aU

-property, A) jostice for 1liemsc9Y«i.

' this principle it acknowMged

U countries. There it a aigf-

*'*eii a French despot found

^t' France pardooed one

Mirder which he had

him obserre, tfiat

ne that should

picture to

^on and

their

>U8-

I that
troops
(1 by fear
(is them by
— these troops
J justice by ibem
iL'y mifi^bt cominit!
all tuey attempt to fly,
part of their family be-
ley stay « and mibmitthem-
^^^ tmilies to the licentiousness of

''. I suppose there might be

jm (as amongst us) some of both
» : Irat however, for the honour ofhn-
jture, there were also some of another
iicr. They hastily armed themselves as
dl as they could ; they collected togeflier as
Itty might, and they staid wailing tfacerent,
ttermiDed not to attack, but to defend them-
elfes from lawless insult, or to sell their lires
I dearly aa they could. There is nothing
■ily in this that will justify the slaucbter of
bcM which ensued. And you will please to
ksarre the time when this hap|)ened ; for it is
very striking fact. As soon as the act of par-
umat exempting them from trial for murder
■ America — as bOon as that act ^ to Ame-
ia, and the weather would permit them, the
raopsdid instantly and without delay commit
we murders with which 1 now charee them.
'W act of parliament was proposed by the
•■flkiential friend of my judge ; it was pro-
iKd by lord Gei»rge Germaiae ; and though
bs Attorney and Solicitor General, according
B custom, were instructed to bring in the Bilf,

* proposed it in the committee. He mentioned
be word soldiers — troops: — hot the Attorney
N Solicitor General, or the other gentlemen
^ are in office (for I beKef e their names are
Nationed for form, I do not mean to accuse
ben) tltose who drew up the Bill, knew what
^ the secret ibtention of the propoaer, (not
beiniention of the sfovemment), and therefore

• toMier is to be IbuntI in the BHI ; but it it
tft at large-^those assisting in the execution
Cflhe orders of the officers of juntice ; and the
fcaeral of the army was at that time the civil
p9trmir of the town. Lord George Germatne,
'lom I have sobporaaeil to appear, and who I
liderstand docH not mean to attend, was noC
lien, it rs true, in office ; Init he was very
botfly mfler made secretary of state for the
laencan department. You see then that se-
ntary Germaine was more subtle and cantious
M tccretnry Stair. Now, if wt would proie-

VOL. XX.

A. D. 1111.

[7S8

cute HKMtt imirderers, how is It to- be donef
How shall we find the imrviving witnesses f
Having found them, how ahall we get them to
England ? How altall we find tlie individual
murderers f and if found, tiow shall we briu|^
them hither f

G^tlemen, do yon not plainly see ? The
act passes that they sinll not be tried fur mur«
der in America. — ^The murders immediately
foHow.— They cannot be tried by the Amen-
cans ; — and ^if the doctrine now attempted b^
this proaecation is established by you) our mi-
serable fellow-siibjects In America shall nut
have even the poor consolation of being eveti
pitied here. The murderers shall not he tried
there : they shall not be charged here. But,
gentlemen, 1 shall be told (as 1 liave been) that
Uie Americans were rebels. I answer, that it
has not been proved. Times of discontent and
suspicion are not times of rebellion : snspidon
may be groundless, as well as discontent.

But, gentlemen, you will be told that it waa
no nrarder, because there was a necessity for
it. — Lord Stair said the same for Glenco.*-*
Well, gentlemen, if upon the trial of the mur*
derers it should so appear, that would save
them from a verdict ot murder. But till that
necessity appears, and is proved, every man w
jnstified in calling it a murder. If ecessity shall
save the accused from a sentence of death ; but
it shsll not turn the accusation into a libel, be-
cause ft had a reasonable foundation. Men
were killed without the sanctiou of the law.
However, 1 have never yet heard any ne-
cessity, any real necessity shewn for tbia
slaughter; and 1 take it that my evidence
will be sufficient to make it appear that it
was a voluntary act, not imexpected or
walled for, but sought for by the troops.
Indeed, the Attorney-General has excluded
any such notion ; for he has called K a victory !
— Necessary self-defence (and no further than
that reaches is any man justified in pnttinff
men to death) necessary self-defence has, I
believe, never yet been called a victory. The
utmost which that could ever be called, vrould
be a lucky or a haupy escape. But necessity did
never yet excuse fcim who attacks ; it will only
excuse in self-defence. The law tells you, yoa
must go back to the wall. If jroo go and at-
tack, and so invKe what follows, necessity wffi
not afterwards acquit you. But, gentlemen,
let it be necessity. If it is necessity, lam sure,
I am still jiistifted in calling it murder by the
greatest and (upon this occasion) the best au-
thority for me in this country. For if, when
at a critical moment, to save this nation from an
universal famine, it was necessary for the mi-
nisters of state to act eoiitrary to law — if all
men with one consenting voice approved this
salutary measure to snre the lives uf men,
and both houitea of pariiam«*nt returned his
majesty their thanks for concurring wttli it — I
say, if; net withstanding this, it was necestMiry,
in order to heal the wound which the constilu-

SB

* See vol. 13, pp. 883, et seq.

7S9}

17 OEOBOE IIL Procetdk^ qgaimt John Hame^

[740

tioQ WM tappMed to bmre rec«f eil (by tlie sub-
jects lifes beingr thtu ssred contrsry to law)
if it was uecesssry to bsve an act of parliament
to indemnify those innocently -iTDilty ministers
of stato, those meritorious offenders; what,
shall it not be equally necessary to have an act
of parliament to indemnify those who have pot
our fellow -subjects to death contrary to law ! I
know indeed there was a rery severe judire
once, who did go so far in the insolence of his
delegated aoiboniy, as to affirm that, |

————— •• Twerft all atf good.

To pardon him tliat bath from oature stol'n

A man already made, as to remit

Their taucjr lewdness that do coin heaven*i imaf e

Id sumps that are forbid.^Tis all as just

Falsely to tike away a life tme made.

As to put mettle to restrained means

To make a &l«e one."

But the doctrine now held out to us goes as
much farther; as rerenge and tyranny are
more odious, more pernicious, and more de-
testable than lust. Lust, for its purpose, ar-
gued only that it was an equal crime to give life
contrary to law, as to take away life contrary
to Uw. But revenge and despotism only make
it a crime to preserve lives (which is a better
kind of giving life than generation) contrary fo
law ;->-and deny it to be any crime to take
away lives contrary to law, unless it be also
at the same time contrary to the inclination
9f the tyrant.— Admit then, gentlemen, if you
please, admit the motive for killing those our
' fellow-sub|eGts at Lexington and Concord to be
as necessary as you please : go farther, admit
it to be useful, admit it to be highly meritori-
oua :---yst I hope the warmest aomirer of such
kind of executions, the most thirsty alter Ame-
rican blood and conBscation, I hope he will not
insult our understandings by contending that it
could be more meritorious, that it could be
more useful, that it could be more necessary to
kill men in support of the measures of some
particular luiuislers, than to save this whole
cotmtry from famine. Our law, gentlemen,
has not called such an action as that illegal
embargo on com by any specific name, as it
has called the illegal putting of men to death
by the name of murder. Suppose then (what
indeed was freely done) that any one^ for want
•faspeci6c name, bad called that necessary
embargo on corn, an illegal action : as when
we say murder, we mean illegal slaying. Now
then, I ask (and I hope the Attorney General
will tell us,) would it have been a seditious
libel sgainst the king and the government to
have called that measure illeufsl (for want of a
specific name) which the real government it-
self, the legislature, by the indemnifying act
declared to he illegal ? Whetlier the Attornev
General may pretend this or not, I cannot tell:
but I am sure my judge must direct you other-
wise.— He cannot for shsme pretend, because
be forced an act of indemnity upon these men,
who themselves thought the act a sufficient jus-
tificatioD of itself; he forced them to be par-
doned, to be iodfoiDified by aa act of parlia-

ment ; and therefore 1 am sore that he eannot
pretend that utilitv and necessity shall jus-
tify the deaths of^ men, when be would not
permit utility and necessity to be sufficient,
without an act of indemnity, to justify those
who had illegally aaved this whole cooutry
from famine.

But, gentlemen, T am ashamed to haTe sakl
80 much upon a point so clear. It is not be-
cause I am tired ; or because I am failiug ii
many more arguments equally strong, l^t I
disdain to take up more of your time, or to ssy
a word more upon this subject. J will leave it
just where it is. 1 leave it to the reply of tbs
Attorney Geqeraly and the difectioo of the
judge.

Mr. Home having concloded, the Attorney
General began to address the jury by way of
reply ; n|ion which Mr. Home roscyand spoki
to lord Mansfield as follows :

Mr. Home: My lord, 1 don't mean to ielni*
rupt the Attorney General: but, my lord, b?
haste, and the shame I feel for having msM
any defence to such a kind of charge, msdt
me forget to examine my witoesses. The At*
tomey General has not proceeded far in hii
reply, and I hope I shall be at liberty to csU
them now.

Att. Gen, You will not examine witoiflflS
to justify a libel f— My lord, I object te bii
calling witnesses, except be had opened Is
what points he meant to call them.

Lord Mawfitld, You had better not okieel,
Mr. Attorney General ; you bad better bsif
his witoesses.

Mr. Home. My lord, if Mr. Attorney Ge-
neral make an objection, I will eodeavoinr It
obviate his objection.

Lord Mansfield, Call your witoesses.

Mr. Home, 1 call the Attorney General.

Lord Mansfield. Oh ! you can't examiot
the Attorney General.

Mr. Home, Does your lordship deliver that
as the law ? — My lord, f call the Attorney Ge-
neral, and desire that the book may be gifco
to him.

Lord Mansfield,' You must state then what
questions you mean to ask him ; for he bsss
right to demur to the questions, and take tlic
opinion of the Court.

Mr. Home, If 1 do that, it will be more tbu
be was directed by your lordship to do with
any of the witnesses he examined.

Lord Mansfield. They were called of con*
mon course ; the Attorney General may ^
mur to it.

Mr. Home. If I ask him an improper qoel*
tion, he may then object to it, if he can.

Lord Mansfield. If you call the Attorney
General in any cause, it* you don't state tbt
question, he may ilemur.

Mr. Home. Can he before he is swon.'

Lonl Mansfield, He msy demur to bciQl
examined st all.

Mr. Home, Yes, and I dare say he wilL

Lord Manffield. You migbl aa waU ciB^

./

far a LibeL

•ttoniey or an adfocate employed

00 Id a cause. '
lorne. But this, my loi;d, differs

lo what I shall call Mr. Altoroey
to, be acts neither as attoroey nor as

iansfUli, State the question.
Trne, My lord^ I have many qnes-
ik him. He has paraded upon his
lis conscience, and his duty. He is
r as an attorney or an advocate in the
¥hen he files an information, he is
1^ as a julf^e or a jury ; and if he has
in it with that, integrity with which

1 ha? e done upon oath, so much the
bim. One chief reason why I desire

lo bim is, to obtain this : that 1 may
a means by which an accusation io
ill not be brou((ht a^inst a man with-
b, at least from somebody. My lord,
tion I mean to ask him is concerning
nation which he has now brou|^ht:
me to be brought ? bow it came to be
and some other circumstances at-
He has talked so much of the fair-.
I the conscience, and the inten^rity of
es in doings it, that I am sure it will
f comical if he refuses to swear. to
flarations. If he will not swear to
dves, without his oath I cannot be-
ind if, contrary to mv expectations,
ivear to it, after his oath 1 shall be left
le my own juilgment.
en. To any matter so impertinent at
that i^nileman had had any question
have asked me relative to his defence,
not have objpcteil to have sw4>rn to
ig^h I stand in the place of prosecutor
use, where in point of form 1 migbt :
t mys^f upon this, that I will not be
to questions so impertinent as those
been now proposed.
ornt. My lord, the g^entlemen of the
please to observe then, that here is an
1 without an accuser. Your lordship
Upon my word, my lord, I do not
thing to be lau<^hed at. If I had
ur to be talking with your lordship
le, I should speak of it with the same
IS, and not as a quibhle. 1 hope the
n will upon oath justify that informa-
tbe integrity of which he has been

1^. He will not!— Well, then, I

vithout the evidence of the Attorney

fantfield, 1 cannot force him to bo

•

'ome. No, my lord, nor do I believe

f else conld. Please to call lord

lermaine.

Beorge Germaine was called by the

tdid not appear ]

orne. He is gone to Germany too,*

f, with general Gage.

A. D. 1777.

Mr. Alderman Oliv& fwom*
Examined by Mr. Home*

£74f

11 trial bei'oro a Coart Martial^ a. d.

Mr. Home. My lord, I call this witness to .
prove the truth of the assertiona contained in
the advertisement.

Sir, I must desire yon first to speak to the
particulars of a meetm||r called, during an ad*
journment of the Constitutional Society, in the;
year 1775. Was there a meeting called by
you in June 1775 ? — I believe Ibere was ;
upon your application.

Are you sure of it ? — I am.

Did you know the purpose for which it wot
called before it met f — Yes ; 1 did.

Did you approve of that porpose?— I did.

Was a proposal made to aubacribe any
money, and for the purpoeet meotiooedP—
Y.es, It was ; and by you.

A sum of money was subscribed ?—Thero
was.

Did you contribute part of it?»I did.

Was such a direction, as in the advertise-
ment, given to me?— There was.

There is another advertisement of 50/. I
believe I need not read it ; it is well understood.
Did I receive that 50/. from you in the name of
an unknown contributor P — ^Through me.

Was that 50/. given for the purposes men-
tioned ?— It was.

By whom ?~4$r Stephen Theodore Janssen.
I was also a subscrilier to the same purjiose.
. I mentioned in the course of my defeneo
what may otherwise perhsps be represented as
not true. Did I send by you, upon a reUtioa
from you of a motion made tor an act of pariia-
ment to take away the right oi appeal from tbo
sul|gects in cases of murder, did I, or not, send
that message which you heard ine represent io
my defence? — Yon sent a roeKsage by me;
and I daresay, from your accuracy of memory
and your truth, you did deliver a message for
the Attorney-Gcueral. Whether 1 thought
that it would be of the same effect, — I did men^
tion to Mr. Rose Fuller the determination of
Mr. Horne to go all lengths in opposition to
that act which was to destroy the right of ap-
peal in cases of murder; and I do believe m
my conscience his application prevented any
further steps being taken upon it.

The fact, as 1 represented it, the witness
says is' trae. — Certainly so.

William Lacey sworn.

Exsmined by Mr. Home.

[A receipt for 100/. shewn to the witness.]

Is that your band-writing ?« It is.

Do you recollect that 100/. for which that is
your receipt, being paid in at your boose?—
I do.

In the name of Dr. Franklin ? — On bis ac-
count.

Do yon know by whom that was paid? — I
have it in my book in the name of Mr. Horne.

Do you recollect me to bato paid it mystlf f
— IdoROt: bat it wu paid.

743}

17 GEORGE III.

Proceedings agairut John Home^

iTU

Do yon know of anjr olher sum paid ? — No :
I ha? e got a copy as h atandt n my book
here. , *

la tbere any thing besidea the 100/. pat in ?
-i-No.

No 50/. P— No.

Where is Mr. Cheiham ? — He » in Ireland.
' He is a clerk inyoor bouse P — Re was.

And uie<t to recei? e money occaaionaHy ? —
Tea.

Do von know hia hand-writing? — I befiefe 1
aboald.

Look at that receipt.

[A receipt for 50L waa abewn to the witoesi.]

Lacy. .1 beKeve that to be his writing.
. Mr. Uan^ Call Mr. Gould.

Mr. Edward Thoroton. Gould aworiw

Examined by Mr. Iforne.

Did you in the year 1775 serve in a regiment
of foot belonging to his majesty f — 1 did.

Were you present at Lexington and Concord
cp the 19th of April 1775 ?— I was.

How came you to be there? — As a auballern
fVfiicer, ordered there.

Ordered by whom?— General Gage.

At w hat time did you receive those orders ?—
I don*t recollect immediately the time.

Was it on the IQih, 18th, or 17th of April ?—
1 believe it waa on the 18th in the e? ening.

Did you receive them personally from gene-
ral Gage ?— No such thing.

Whom then ? — From the adjutant of the re-
giment.

When did you set out from Boston for Lex-
ington?— I cannot exactly say the time in the
morning, but it waa ? ery early, two or three
o'clock.

That is in the night in April, was it dark ? —
It was.

Did you march with drums beating ? — No,
we did not.

Did you march as silently as you could ? —
There were not any particular orders given for
silence.

Was it observed ? — Nor it was not observed,
not particularly by me.

Were you taken prisoner at Lexington or
Concord, or either of them ? — At the place
called Monottama, in my return from Lex-
ington.

I shall ask you noqueationa that you dislike ;
give me a hint if there is any one you wish to
decline — Did you make any affidavit .* — Yes, 1
did.

Will you please to read that ? [Giving the
witness the Public Advertiser, May 31, 1775.]
1 lielieve that to be the exact substance of
the affidavit that I made.

Lord Mamjteld, It cannot be read without
the Attorney- General consents to it.

Attorney General, T don't consent.

Lord Mamfitld. If he coDScnti to it, I liaTe
no objection.

Mr. Home, May I give it to thejurj f
Lord Mansfield, No ; I anppoM they bav«

all read it years ago.
Mr. Home, My lord, that ia my miafortiiM

that it is so long ago.

[Mr. Home begina to read it]

Lovd Mansfield, You must aot veai it

Mr. Some. I have proved the pabliaHJMiby
the printer.

hfMMmm^ld. It will have ftdiAmt(
aeqiience, if you only mean to pnore Ibat
waa avch aa affidavit pnUiahed. If jmm i
to make that nac eC it, then yoa- naay prMliica
the affidavit, or have it iea4.— If y«u m^ua l>
prove the coaleBta of it^ they muat ant fnm
the witoese, said theft you will have • nghl la
have k read.

Mr. Harne, 1 naean b«tl»la peavia Aeesa
tenia Uue, ami the puUiealioB of llivaftdMl:
that ifideed^ I have already peeved.

Lord Mamfidd, Then you HMyr raad Iba
affidavit, if you make uaa of the poMiaatiMi
of it.

Mr. Home. 1 make «se ef both ; that il
wa» ao puhliahed, and charged, aad that k ii
Irue.

« The Public Advertiser, Wednesday, lay
31st, 1775.'

[The affidavit read.]

Are the contents of that affidavit trua?—
They are; it was made at the time 1 wn
wounded and taken prisoner.
. Pray, do you know that the Americans upoa
that occasion scalped any of our troafa?— I
heard they did ; but I did not see them.

You saw none ?— I did not.

From whom did you hear it?-*From a cap-
tain that advanced up the country.

Were you, at the time when the orders wera
given to you to go tu Lexinsston and Coiicsnl,
apprehensive of any attack by those Americaaa
against whom you went ? — We were as sooaaa
we saw tliem ; we found them armed.

Before you went from Boston ? — That daj
we did.

How many miles is Lexington or Cooceid
from Boston ? — The farther is about 25 mika»
the nearer is about 12.

Did you know, had you any intelligenee thii
the Americans of Lexington and Concord w«%
at that time, marching, or intending to manh
to attack you at Boston ? — We supposed thiA
tliey were marching to attack us, fram a caa-
tinued firing of alarm guna, cannon, or th^
appeared to be such from the report.

Lord Mansfield, Did you aay canooa?'^
Cannon.

Lord Mansfield, When was that ?— Ai aaaa
as we began the march, very early in tbe
morning.

Mr. Home, But did yon hear those afafli
guna before your orders for the march Vflf9
given, or before your march bcgau.?— New

Bat after you had bq^iio youir oMudki^

foraUbeL

ir ve began our mircbibeiUrin gun)

I auppote tiioie alarm guns lt> be in
le oi' ytnu having tieguo llie oiatcli ?

not iletire ynii to suppose (lliou^li ihe
n Iiaa auiipoieil llial llieji were coming i
lum) but Jo you Iidbw of aay intdli- i
Ktlier llieparMDstvlia AreJ (nealwiit ]
\u\\tet llioiie were llie prrsaDs wlio '
LextDgloD uiiU CaucoriJ ? — No ;

> came ynti

'Jury. Pray wbn diil tlie alarm p;uns
; t'l llie Ainericaoc or uur cbrpa?—

tmc. Wliat'ilo }-<u meiia hv an alarm

knn may tte iniMiiMicrttoiHi. — Could.
^ballhcy term in (be country an ilarm

.aaMicegifeaU>a«a«aiblelberoiHMry.

mi htd ke^D your march, jiiu heard

U ^uD* ? — Vea.

wnc My lord Percy, I ihank your
for your altcodanre. I will not

lour lordthip with any iiuetlioos, I
■ik yiMir lorJship those quesliuns I
•inoc general Oigc has uol tbnught
stleod: be Is gone U Gerraany 1 uo-
rill nul Le back, 1 suppose —

tantfitU. Tiien yoi;

Gtncral. May il please youi latd-
ntlcinen ol' Ihe jury ;
:len)an has chosen tu loke the «on-
dcfmM biirikell'; aod iu ibe coun«
of jl, he has iiraceeded in an
»ay at 1 beliere eier any cause naa
thai nas ever tried in any court of
Bo CtrHlnly has done more Ihan the

; ami if I eanfvcture bia
I, tron) the iiianaer ia which he haa
I Ibe del'ener, he haamureuBidkbaMl
agreat variety of pari*, for Ihe
■akioc it a topic ol complaint, than
Mated tbem, a* b»piBi{ they could be
f any b;>iUn<ier (uud more puli(tu>
e la jud^ of thttnil at all
ive. I ilid ant recullert on
I Ibal I had so lulally pgused otcr llie
Ihia eharge, iitucli 1km lliat 1 bad so
'Mlargod a|Hin Mibjeula tbreigiiand
' 'It Uiat cb>inr«, a« (o lay uae open
i(inaa(inii that account. It li nut
•vpoM. asd ihanH'urc 1 will IrouU*
» aiHiti thoae varioiu
«s adteDlurus in many
otbl)itiih which be haa ihotiffhi
iattrlard ibe «|Mech hehni wade lo
~' ' lubfect; which iMforc t ait
I ahall be yartMtlf juahfiad

A.D. 1777.
having tlaled to you ax one of llie pb
clearftl, aud shorleil prnpuailiona
laid before a jury. Gentlemen, it ii(
the charge in InainlisTmatiaii cunaii
be did write and puldiah, and cauac and procai
to be written and puhlliheil, ■ cert" '' *~
wickeil, raaliciviH, KcaDdatotis, and
libel. 1 was afraid, when my speech
loaded wiih the jinpuiaiiMi of bating tbi
•ul inreciiTes ui the letnif of the iafomul
that ibe inforaiation bad not been euffici
explicit upon the (rue nature and quality
the liliel wbicb it oftered to bring bsfore yoa;
admit tbal ibe inrarmalion i* eiplicit, tbet i'
direct, and that il perlisclly and jually qoali
ibe nature of ihe chati;e that la brought '
yoo of BCjndalauBand aeditioiu. It is lil
inferred that this ia concern lag bis inejesty'a
Itovernment, and Ihe emplnyment of his troops ;
the iaformalion has therefore undertaken to
*ay, that tlie ocurrilous mailer which followa
w as delifered in writing, concerning the fcin^a
gorernment, and canceming ibe employraeni
uflhe troopi. If it was delirered concerniog
cither, il i« wifficient : that H was delivered
concerning both, I tabr now (by ibia lime at
least) to he perfectly clear.

Then Ihe matter uf the libel is this : that at
the Constitutional Society it was prnpoaed a
subaeriplian slioald be inincitiatety eatered
inla for raising ibe soin of a liuudred pounds.
In be Bpphcd in ihe mauner in which it pro-
ceeds lo specify altcrwanls. And the genlle-
otan has been at the troahle to prove, that thai
waa not merely a conceit and device of bis, in
unlcr tn introduce the charge lliat fidhiws ; but
that the charge which foHowa Wat (in ]ininl of
tact] introduced upon the previous act ; which,
according to my poor cnncrptiou of the thing,
does not liesrrTe sofler epitliets ihan that which
followed. It ia no allerialion at Iraat of the
libel that he has pobliaheil upon Ihe govem-
meal, that it limlc such a commeaceiuent as it
did, and prnceciled in nick coaductas haa been
imputed. I thought it a candour, no oriicle of
fairness lo namea menliaaed nr even ulliided tu
in the moHt disunt way, u> si]p[Mse that it bad
not been exactly in ihe way he Iboagbt Ht to
stale it. Hut whether it were or were nut, in
what ¥iew has he even suid Iu ymi, tbal that
circitaiatance, true or false, g"f» an inch to-
waida qualifying the viriilelwe and iudeceaey
<if the libel liial inimediutely foUaws it? Th*
next wards that he puts In are — ■' la he anptiod
lo tbe relief of the widows, orphans, and aged
MTcnta of our bel'>reil American (elloH-safa-
jecta, who, fmlhful to the eharacler of English-
men, preferring death to slavery, were, lor (hat
tMUnn only, inhumanly murdered by lb>
king'a ttonps at or near Lexinglen and Cnn-
cord, in Ihs province of the Maasachusets,"
Let ua a little see, wbal is the nniurc of tb*
obMrvalinria Ite mabea upon it. In Ibe first
place, that ! left It exrveriuigly short. And th*
ohUeiion lo my buriug lell il ahoi t was simply
Ihia : titat I bad stated no luore is you but thia,
thait u( inpnluig to tbe geoduct of the kio^

TiT]

17 GEORGE III. Proceedings agaiiut John Horne,

iia

traops the crime of monler. Now I tilted it,
••.imputing it to th<» troops ordered, as thtty
were, upon the public serrice. And imputing
to that serf ice the crime and the quali6cation
•f murder, was an expression scandalous and
tediiious in itself; reflectin|p hig'hiy upon thivse
troops ; reflecting hij^hly upon the conduct of
them ; and reflecting' upon ihem to all the
purposes and conclusions which thin infwrroa-
tion slates. But, it seems, 1 did not argue it
tuffieienlly ! 1 confess very fairly, tliat to ar-

£ie such propositions as tho^e (according to
at gentleman's notion of argoinir them snfli-
cienti\) is far beyond all tbe compass of all the
talents and abilities thai 1 have in the world. 1
CBDnot speak four hours in ordt-r to demon-
■trate to you, that taxing people Hith tbe
crime of murder, and taxing the conduct of
people with that impuUliun, is a scandal upon
the parties so reflt^ed on. If there be a man
of more diffusire talents, of btrlier talents at
tpraking, who can ex|iend four or live hours
hj eolari^ng U|>on that pniptisili(»n in that
manner, I do not envy him liiii laieois ; for my
lunsss would not be sufficient, if my talents
were. I misled that I had sufficiently demon-
•trated thai position.

Now, <io ibe other side, whst is the kind of
mnswer that is made to this ? In the first place,
be is to prove that it wss murder ! Asserting
that it was murder over and over again in tlie
speech, is the palliation, ami is the delence of
this ! But be is to prove that it was murder ! 1
confess very fairly, that this is the first hour in
which it ever entered into my imai;inslion, that
that species of proof cuuld be allowed to a de-
fendant ! I am not at all sorry that it has been
allowed : fur the consequence has been to re-
fute more than linlf the speech, and more than
half Uie application of it ; therefore I am not
sorry that it bas been allowed. But 1 will
never, so lone » I live, iccede to this as a pro-
position of law, that a man shall be at liberty
m a libel to charge you with tlie crime of mur-
der, and when he is indicted for that libel (or
othrrwise broii;:ht into juJifinent for ii by in-
formation.) that it sliuu'd be competent for him
to put you to try, whether you have been guilty
of murtler or no. I Hiil say, what common
sense ilirtites. what the law of eiery civilized
state under hea%en pres4*rilies (and there is not
a maxim of law lobe fetched Tom any country
•r ace that contrailicts that.) that the man that
calumniates, and does not srruse, deferves to
be punifclied with exemplary severity. He told
jou a long story of munlers sup|iosed to have
Keen committed in St. Georir^.'^ Fields, where
be took to himself the merit of bavin:; pro«e-
cuted that murder. As far as that part of the
story goes, 1 don't quarrel with him. If he,
9ceiDtf a transaction which he took to be mur-
der, thought himself biiund to prosecute ihst
tranaaeiion, honestly, candidly, and with hii-
Mftoiiy and faimew to the prisoner, as well as
ftnthtfncodsortbedeeeaaed; if be did that, I
4m BOl fwrd with him : but whoever, in the

in the newspaper (either by advertiseneiit or
otherwise) matter thai was likely to caoae m
impression upon the minds of ibe people at
large, or upon the minds of tbe jarT, Wlbra

they hesrd that pnisecuiion tried,
abandoned and a most wicked tUng. Is that
the way that people are to be triH for their
lives P Are they to be bnMght befbre a jury ii
a regular course of trial, to be beard for then-
selves upon tbe evidence then Isid before themf
and is the integrity of a libeller to ioterpoK, bj
writing down their reputation ; and by endw
vouring to instil into people, where they caBBOl
be heard, where they have no opportonily
to contradict, and where witneaset cannot bt
examined either on one tide or the other, u
impression that they ire guilty, witboat tbt
form, withnut the essence of trial P If there-
fore there was such an advert isemeot as ihM
piibli«be4l, that advertisement I bold to be a
most wicked one. Proiecuiing men that tit
thought lo be guilty, b a fair aod an bowtl
action. In this case, what i< the eicow hcreP
That they canwtt be prosecnied. Suppmiag
the accMwot of the di<tance from that side sf
the water and other accidents should so far ia-
lervene as to prevent the |inssibility of tryiif
those men, even if they had been gnilty if
miinier, wouhl it follow as a conclimoo npn
that, that Ihey shsll be libelled ? and that k
shall lie in the power of any man alive to raiff
impressions beliind their backs, by publiikiig
in tbe newspaper imputations to their disa^
vantage, which ihey caiinol contradict orit*
fute? calumniating them, accusing them if
murder.' The time would ondoobtedly comeii
which they wouhl be to be tried for it, if
guilty : and to be trietl for it under that sort rf
impression! I am amazed that any man of
comtnon sense could even in his own case)
imairine, thst it uonld he tolerable doctrine il
the ears of peojde that ha^e lived for years is t
civilized country, that that was the true wsy
of prosecutini; upon the subject of murder ! Be
told you a story of Glenco, which, if I under-
Manii him ri^bt, went directly the reverse.
They were to be tried. Unless be means te
compare the authority of the Morning or l^a-
iloii Eteuini; Pt«st to 'the councils of the wlwlt
nation ! if he mean< to make that compariaia
(which he ilid not make, and which is too ab-
surd for me to do tor him;) making that, t
degree of idle analoiry would seem to arife;
but without thst. absolutely none.

\owr with respect to the rest, he hasofleicd
by evidence ahio lo establish, that this ami
necessarily be a munler ; and the fate of thsff
people, it seems, is to be tried by the eflect if
that evidence ! And whit does that evidcaee
amount to? Why, ihat the kmg*s troops, nadtf
the command of general Gage, were iiraa
hostile country ; ami that it was impovible fie
Ihein to go upon any service («Hrdered bv thil
ipeneral and conducted by his offieen) witbert
an attack : that the mnoient they went wtlijd
Boston alarm guns were dioeharged, in
lo niK tbt powir Ihil

:
I

f

i

for a Libel.

a upon ihcm, anil to iniike die >t-
Kk opon lliem, Ami ili'm is ilie meJiiim by
rliichiii!>li>he|irnve4,iballlieiolilierBwlia«ere
nlvral hy ilirir eonimaiiilFr lu •civiiice from
bdr pud al Bottuo iiilD llt*t cu'inlry, were
luiliy i.f iiiiitiler ; becanae llify wori- sur-
DunHril ufiOD llie 18th anil igih uf April, ia
"Dsi^quFnce of IhiHe ahrio gaai, willt an
' ' « on ll>e oiber shIv, in oriler lo wiili-

...T rt

"PP"*'

It timp ill an Imatile couniry ! Wliy,
' : 'iiaanl, U'l linil ibougbl il cuD«ial«iit with
,-> ur niib reaiun, !•> enter iiiinaitiacuiKlniinr
tiat queatidn will) bim, wheihrr be Ik a libeller
ir nul. tur having char^ceil thfm wilb tnurilfr
ly a ptinteil papier, iiiiteail ofcbargintf ibtni in
I note dirri't way ; it I bad iliuugbt il necea-
lary lo ealaUiali the ciae against him in the
lUoDK'M ao'l most fircriM manner, it would
n by eillinjtjuiil iucb a wilness as that.

nHfis »

» nriler |n |ii'o«e ibal ibi
I' Led ; Bud ll»l, iipno til
- -■■ -' ; plicp, lliey

Lislile

lack.

eibemseli

;a;i,-r;

\ h wir defence proscribes, that n man

'" lUe wall whu ia iitavkeil. He must fly

I i anil iftio can ei:<'H|>e bv Aiitlit, llien be
'1 nnl juslity liiiuBcit by turning and i-epell-

;ilie atUck! What tort of ua(lerstandiui.'9

Om-9 he iinagiue itie audience lo be composed

tf, wbei) be n^prexenlH an expeililion and attack

«f Ibiiaortin that manner? That the kintf's

Imoiii, when tbry beard the alarm gnna and

arrfiiucked, Here to fly,tO|cetlo ibe wall,

Hil dtap Ibeir aniit '. tliia is ibe untion of mili-

Dry diaiKHiiiion in an hoaiil^ cnnntry ! and lliis

•I lbs law that the tcarne'l Ki^nlUman has

Iward trom the ^ale Triaio, ibe aoiirce of bis

mding! and which be bus set lijrlb wiili a

dttlrrity, and a upecics of unilerila oiling, atnl

a Mri i>r tliMjueiiOc, which is peruiinr to bim.

inil I miiBl nay now, it is nmre than 1 enr

" iiJ biifate. If 1 had ibe llunaur iif ■ ciiii'

-^jiLoo iviib bim nine years aeo, I bad fnr|{iit

1 ibd not Uke uuliee uf llir convrr-

' < III )i«rba)is enuu|{b lu retain it, I b»d

li-ta an iiira Ibal his abdiiies w.Te nil cin-

■■ II >u). But Ibis apecieaofelmiiieiice I take

' ifpciibac 111 bimarlf; is it could not hare

II itpb>rri-d by a counsel ; il would bate
N nbanlultly impniiible by a counael used
, 'Hit tea I It uuiild have been iiupuaiiiblf lo

iiiiiHtl, uwd lu feel Ibe wei[>bt of hii arnu-
-'.'iiit, usfd to feel the ridicule uf anplying
>>'-L.li kind of arifumenta as ibrse, and deterred
bj ibat means from doiuK it. No counsel
taa'd h*(e ihoui(bl himself warranted to do
tkii. Hf wiiubl nul biive bad vanceil enougb
lalbink bi* uwn uudeisiaudlot; to superior to
all that heard him, a» tu suppose be coutd

Cisgcb a pnipDaiiuin upon bis auditory, that
eanduci of sn army, in an hostile cnunlry,
•■• to b« like tlie ca>e of a man imbcied t<>r
lUnlnr lu Uf to Ibe wall, fur fear tbey slioubl
ilttHinic miM;liitl! Tbm ia Ibe sort <il deleucc
ha baa ltiou|[ht Gt lo m>b« upon Uiia subject ;

A. D. 1777. [750

and itfcireimea ^ound for saying, tbal, iff
waa Kburlin apply inic ibecbiricrsnf ibe jnfor.
malion as I ahou'ld have dune, it is now com-
pteleiy applied.

All that part of the defence which went
perlerily wideand loreign to all practical appli-
cation to ibe case, I will now emirety drop.
At iheaametime I cannot do iiwiiboul makiufr
ibia observation; that, ubalever be Ibe degree
of veracity rlaiineil by and due to tbal i^n-
lleiiian, in Ibe pariicnlar words tbal be Ibiiika
proper lo impute lu ibe Tarinua Jieuple whuse
worda be baa thought Gl to quote ; as fur sa
my memory goes uf the transactions which I
do remember J ax fjir at coiijeclnret[iieB mIUi
regard la those I have no) a perlnil memory
of; I believe, that ibis failing al leuat belong*
represenlaiinn nf them : that taking, as

he liaa done

passagea.

>r the ai

of remcmbei iiig Ibem lo the disad vantage of
the speaker, lie hat stripped ihem of their con*
text, fje baa tberufure made it im|)oaaible lo
recollect the whole, in order to see whether
ibev would, nr nul, turn out such nonaense *■
be nss imputed tu those several a|ieakers, ]|
may be true, fur Bugbt I can lell ; ibiiU(;b if
any l:iuly bad asked me, whether I ever Hpuke
upon thai subject he uientiuna in Ibe House ef
Commons, I ■hould have said no, directly :
fur I lielieve I did ool. I believe Mr. Oliver
will not say, that be brouiibl any such idle
message aa thai to me, 1 should have treated
it niih ridicule. 1 have no ohjeclion lo con-
leme with ftlr, Obver upon any subject be
ibiiikn proper. He dues me hunour by it-
llul if he had hrougbt meaucb a iiiesmge Vrnm
a person in Mr. Home's sitnalion, rrspectiag
my conduct io psrliameut, a bitle Uugbing at
the messatie he muil have excuied. Uut be
does not *»y be brought me such a mesisge,
I iluii't know tbal I bnre aoy pari in that de-
bale. But be savs, be luuk down some worda ;
and tbal I said, it was a Gothic custom. If I

II upoi

variety of reading that that proposition wag
upen to, and contented myself with sitting down,
and eayiiig, ii was a Gothic custom; 1 sbonlil
nnl hate bad any preleosione to the ear of that
House. If I made any discourse almut il ;
which I suppose I did, us he tays I did ; I
suppose it is «s idle, as foolish a kind ofspeach
aa il is possible for any inao to make. J should
nul wonder if I waa refused all audience thera
in al] limes lo come, provided my siiercbea
were jual those which 1 have had the — (not
misfailuue, for I think itvery natural) as ] have
beard la-day. Other people have shared ex-
actly the same fate. )« it aliiir thing, with
respect to any .judge, with respeol lo any conrt
of justice f Is It a fair thing lo slate one 6(-
tietb part of a cause deiiundiug before iheoi
with an observation which ibe other lurty-dina
parts would never have juslified upon il ? U it
the pari of a good cilizcn, of a man that reve-
rences the laws of hii country, of a man thai
wishw any thing but anarcby M riac in a «aun-

761]

17.0E0B6E III.

Proceedings agaifuH John Horne^

[T5Z

trj? Ii it Ibe part of a good dlizea to trirat
courtf of joatiee io ihat maniier, with reapoct
to cataa cited froni their decttion io the way in
which those were cited ? I mentioD them only
ID the way of obaert iog that : for, to be sure,
it waa perfectly inpertinent to aoy ^neitioii de-
ptnding hefore you ; and unleM it had been
equally ao with respect to the caaes themselves,
1 should not have ffiven you the trouble of a
aio^le word upoo that. There was one thing
which fell, which gave me aome little astonish-
ment to bear, and which 1 remember well. I
doo*t take notes, but I have a pretty general
remembrance of things delivered by me. I
take myself to have stated to you in the outset
the very same doctrine of intention. TV by,
who doubts but that the intention constitutes
the criminality of every charge of every denn-
winatioo and kind ? But the extreme ridicule
of the thing ia, the talking of that doctrine upon
an ocossion like this! See what it is. The
words are, that the American subjects for meri-
torious consideratiooa upou their part, and for
Ihoae conaiderationa only, were inhumanly mur-
dered at Lexington and Concord, in the province
of Maasachuaets Bay. Nobody can doubt in
the work), but that imputing inhuman murder
to the conduct of those troops, is abuse ! 1 sup-
pose be did not mean it as flattery, to extol
them, to deliver them down to posterity (if
such paragraphs as these had any chance of
reaching down to posterity) to deliver them
down to posterity in terms of heroism ! He
meant to abuse them : the words themselves
are abuse. Then, 1 say, where words of direct,
unqualified, indubitable abuse are printed con-
oeming aoy man alive ; that the very circum*
atance of printing calumny concerning a man,
carriea along with it an intention to abuse him.
Why it is nonsense to doubt it. One may
apip words till one loses the meaning of a sen-
tence, and the first words that are used in thst
aentence ; but it is nonsense to deny when you
use direct abuse ; when you revile tliem in
the very attempt to justify the charge ; nnd
again use terras of abuse; that those terras of
aouse dun't prove intention of abuse : prima
faeie^ at least, they will. If a man is called a
rascal, has he any doubt whether the man that
called him so means to abuse hiro or not P Why
that is playinti: with words in a roost ridiculous
manner. And these are the kind of words that
are now called in question ; and a jury are told,
that where a libeller calumniates auother with
the imputation of a capital crime, that calumny
carries along with it a proof of his intention to
calumniate. That is the dreadful proposition
which is to prove an intention to overturn all
the liberties of (his country ! 1 wish those who
talk about (heir liberties, would be pleased a
little to have a small regard for the liberties
ol' others. The man that robs upon the
highway, while he is unapprehended, is the
freest of all human creatures: but the men
whom he attacks, whom he plunders,
whom he terrifies, these are nut free as long
aa they are uwler bii dominon and powar.

The man that daahea libela abooi him npoa
every one he is pleased to call bia caemy, is
tlie freest of all at^ents ; but thosfl that he m-
flicts deep injury upon, are Uiey free? And is
it talking with common sense to say it meaaa
the liberty of doing wrong ? of attacking per*
sonal property, reputation, or what 1 pknae,
witliout being controuled ? Is that what yaa
call freedom ? It m a definition of freedom thai
I never expected to hear ; and which can, I am
sure, do no good to any caiiae upon the side sf
which it is advanced, before any one gentlcnaa
of common sense ! That 1 call no freedom.

With regard to the rest, what can one aigw
it more? Why, yes, it seems one WMy \ \^
cause if you will scan the construction of then
words well, they will not amount to a libeL
Not amount to a libel ! it aeemed to me a verv
hardy proposition when it was first of all stalM,
that callinir a pumber of men mnrdercrs was
not a libel. No, says he, It is not a liM.
Observe, 1 called it under-writ, it is writ b^
yond common sense, instead of below it, whiek
was I he first apprehension I had of the tbiog.
For, besays,n(mroiif<af that there were any per-
sons of that description ! non conitmt that then
were any widows, orphans, or parenta I—am
anuiat that tliere were any beloved Aroeriem
fellow-aobjects— and I lielieve more about thit
last than any thing else ; for 1 do not beKevt
that our love to our American fellow -sebjedi
was that ruling iwinciple that governed thii
publication.—** Who, faithful to the charscier
of Englishmen,"— (that may be true, for au^
I know} « preferring death to slavery, were,i«r
that reason only, inhumanly murdered by tbi
king's troops." Non conttst whether thai
were or were not sny king's troops I It hap-
pens unluckily in the last part of the sentcoee,
it is asserted that there were : for the senteaef
runs — " who, faithful to the character tf
Englishmen, preferring death to slavery, were,
for that reason only, inhumanly murdered by
the king's troo|»s :*' so that if assertion was se-
cessary, there is an assertion for you. B|it«
however, how can any body trifle so much wiib
his own understanding, or with the undentao^
ings of others, as to suppose that, if it had bcoi
without an assertion, suppose it had bees s
question, — why did the king's troops mur^
our American fellow- subjects i* — why wosM
not that convey a libel just as much ? Aretbcfv
any necessary forms of words that compote!
libel ? I think it fair to say, that that was gircf
up. It was used more to shew the skill of Ihf
adversary than to the merits of the qneslioo.

But, It seems, that a soldier may comdii
murder : aye, to be sure, so may any •tbcf
man alive. There is no question at all absrt
that ; but if any man is supposed to havecMi'
mited murder, he ooght to be tried. If sif
man is charged with having committed maidff
(otherwise than in a legal cmirse) he is cala**
niated ; he is lihelleil : and that is all tfcil I
have to contemi before you. But it is a fiMM
doubted, whether ibia relates le the
meot ef the king'a tivops I 1

753]

Jbr a LiM.

A. D. 1777.

[764

tbat Ambl wiM sttrted • little before the ex-
plaiMlioo of one of the witnestes came : and I
soppoM, if that had been in the conleinplalion
of the learned gentleman when he spoke, he
woald not hare raised that as a matter of doubt ;
bceause, aa it stands now, it seems a very plain
propoaitioo (both upon the evidence and the
reason of the thioff) that it was so applied, and
Meant to be so applied. Then he informs you,
that 1 ba?e used a number of words, and be

Sve you a list of them.— I wondered to find
p words that 1 had used in a written speech,
brooght in so many volumes into the court to
be oied again here. But, it seems, this is
a collection of all the words I ever used in my
life; and he sits down in his chamber (the
place he is most used to sit in) collecting all
llieae words, and then comes here with a cri-
liciam upon tliftm. Now 1 have not the least
inclination to derogate from that learned gen-
tleman's talents as a critic : and if the food of
such poor language as mine will serve the
gentleman to employ himself upon, he is
quite at liberty to do it upon this or any
other occasion, whenever he thinks proper to
tmploy himself qtiite so innocently. The
wards, in substance, 1 will maintain. 1 really
iSd not believe that the gentleman who had
written that paragraph, would have undertaken
ta defend it just in the way in which he has
4sne to-day. I thought that, instead of quib-
Ubg upon the force of it, that he would nave
idvaoced a great deal more boldly to it than he
Cd ; at least in the outset of the speech to-day :
lad, in the latter part of his speech, he so far
jaitified what 1 foretold in my own mind upon
Ibe subject, that, I think, he has proved to a
taonstration (if that were an essential part of
Aecase) that bis true reason for writinjr that,
us to oefy the laws of the country ; for so I
ilatsd it. 1 stated it that there waa no affec-
tttbn of discussing any subject ; that there
Vtt no pretence or colour even of reasoning
Ipsa any subject ; under the mask of which
■soy others have thought proper to cloak
themselves, when they wish to write malig-
iMitly. But there was not even an affecta-
tiw of that ; but a blunt way of bolting out
■s much calumny, without qualifying it in any
iMiy in the world, or making it appear any
tbiag more than that which 1 stated it to be ;
"HMi attempt to defy justice. — Either prosecute
this, 4>r never proseoute again as long as you
fire, is the true language of this advertjse-
iKot

. What is the rest of his defence? It consists
ia abusing me;- the judge; the jury; the
Crown-office ; the law as it now stands ; the
that appeared for the printers who
eonricted of the same crime before, be-
they did not do enoui^h and act to hia
; and the solicitor of the Treasury 1 That
iilba nature of the defence made in this cause !
1 km eboaen to separate it from the case, and
te I biHave I shall be forgiven it' I say a few
b npoB tho rest of the subject. The
■i fwllMMn thinks proper to atatt to

von that this is a prosecution of two years old ;
because the offence was committed on tb^
9th of June 1775, and because you are novr
trying it in July 1777. Now if he could have
made any thing of the observation, it would
have been just as handsome to himself (it is
nothing to me, for 1 despise all those things)
it would have been as handsome to himself, if
he had thought proper to state the facts pre-
cisely as they were. This information waa
filed in Michaelmas term 1776; and it waa
not my fault, but his fault, that it waa not
brought on to trial in the Hilary term follow-
ing. But still there is between the 9th of June
1775 and Michaelmas 1776, sometime, though
not two years ; a year and something more.
Then he complains that I thought pro[ier to
file my information against the printera first,
although 1 might have applied to those printers
in order to have obtained evidence against him.
In the first place, I have made it a rule to my-
aelf not to apply to any printers, in any other
way than by charging tltem for their delin-
quency, and bringing them before a jury to be
tried. That is the application that I make,
and alwaya will make to the printer of a libel.
In the aecond place, if 1 had thought proper to
apply, aa he calls it, to the printer, I might
have had a fictitious conversation put upon
me, in order to prove that I had practised with
them to get Mr. Home delivered up. Now in
the third place, it is a matter of perfect indif-
ference to me whether 1 prosecute the printer
or the author. And I will tell yon why. My
notion with regard to autliors are, that moat
of them are generated by printers; at least
more authors are produced by printers than
printers by authors; and if the preaa was
never to go till the good sense of some author
set it to work, it would prevent a great deal of
the groaning of the press upon publications
and subjects much too frivolous to be regretted
if they were lost ; and 1 believe authors have
grown more from the press, than the press has
growu from authorship. Iff stop the publi-
cation of libels, I think I do an easential |^ood
to the country. I know if thej are pnnted
and published ostensibly, where to apply to
stop them : but 1 never did, nor ever will stop
tbem by applying to the printera. He has ex-
plaineil, by examming the printers themselves,
that no such application was made to them*
I cannot state exactly upon memory tlie timn
when I commenced this prosecution. I sap-
pose it must have been about the time whta
the others were tried. If so, the consequencn
is, that the Michaelmas term following, in eon-
sequecce of that application, was the very first
time that I could file an information at all. I
was told when the printers were tried here.
Why do not you resort to Mr. Home? — Yoa
are afraid of Mr. Home. To be sure, thera
waa some reason. If I had known that 1
should have been obliged to hear so much elo-
quence 1 especially to have the trouble of re-
ply! nsr to it ; it would have been a prospect I
should not have liked. Bnt i believe, 1 sboold

,-7553

17 GEORGE III.

Proeeedingi agaiml John Horne,

Te Hided ihrougli all Llial proipsnt, ir I bad
^wen ei'er so ugch afijirizeiJ nf ii before. Aod
4>h(>n nil'. Uonit! wu di.'closril lo be ilie ali-
tor, I c«tuiiily should tiare prosecuted birn.
bnl lielnrs he mads thai disolwure, hIwi I
ijiid ia Iruei llial lie ilrfied ibe l»wt of bis
suiinU'ji under llieuirreii ol ihe priiiler*. And
■e tiu* nrovvd bimielf' (bat be w»« not to be
ilisdafeil withiiul • t'^fcouliun. lie give no
lUitliMrity III the (irioteri to k" ti 'he Holiciior

.pTtlM Treasury, Slid iitali* a ilisdi»ure gf him:
pr, ir be did, ibey iiuid« no tush disclosure,
^d yet this manner of delnyini; Ibe cauie it
SDeorihet^roiinds upon nliioh be lias tboughl
proper lo Heal me j«n in Uie muiini-r in which
pa dill- Nuw I H'ould Wg you a iiule lo re-
fiollput how ihal pan of die conrFrBalioa aroie,
wban lUe leariieil eenlleiiian s|Nike witlinul
poob ; wbei) he ([iDkc al first, and had not hia
worda so well nieaaured an the weli-timeil It-
Vour of bin closet enables him to niaaBiire liia

. 'words niton |ia|ier : he certainty loiib the IVee-
iOTB or cbai^ini; me of uiing all mediki, ri^hi
^ wrong, loul or fair, iu utder to get a convic-

(tUB.

Well, wbat la tbe next article of hla ha-
lanKUei* I am rrjitoBchi'd lur bavin^ hoasted
«(' tlia iulegrliy of my character, hrcause Ide-
^d tlielrulh of a false and im|ierlinentcLaf]{>;
bevluK it ia neither true mir perliDenl, tbal
•Ti'r I had rtnpluyed myaett' La Ihe way in
which 1 am «o re|ire«eule(I lo bave employed
■lyielf. And wbat is the boast ii|ion thai? It
it a Tery high one ; for 1 called upi'o him to
Mmc bia inslaticeH, That was mv houl 1 and
ipaocence, when it is able lo call upim its re-
liler to name his iostanceti, doe* make a prnod
^ai magniheent boail. Kn tar I hoasletl. Well,
wbeQ called upna, what nre Ihe invianccsf
Tbe firit is, tlial I proiiprute before a apecial
jury. That in a proaeculion wbicb 1 (tbe ser-
*aol of lb* public) tliink pi ojier (for reasons of
ptiUic treiitbt aud importance) lu produce, I
liish to ba«e men of ihe lirM cbaracler, ol' (be
oral iittiution, men of the bit;hest and moat ap-
|*roii«d liMiour, my jud^K I that ia the first ar-
ticle ill uhicb the n|iprfhritiin is lo he jusiitied
ol' nty uiitig all meaug, I'oiil or fair, in order lo
obtain a caavicliao ! In this he has all thead-
vautue IbiU ao awuscc can pMsibly have ; I
CMifriis the ttbote charge, ll i* tuy desire lo
hkve nil my aclioita u Iried ; it is my daaire,

S4 i will, «i»eii«*er I can, idilain a tribunal of
at Eprl; which (from the ipeat dexlerily
kpd winlam of elmjuencti) is looked upon to be
tbe beat topic (hrfore them) lo condemn me for
fesci'luig to ! This is anuther mailer he would
We bveu totally de|itii>rd of, if he had aubrail-
' nil, aa tUe9« poor prinLera diti, to be delendeil
fcv twuatel. They Houhl never ba«e thon^bi
•1' abu^inif llie AlUrney General (before a ape-
tial jury) only beronie he ibnuiilu proper to
1^ lua cause bclore thai Jury \ It is a singu-
* lac way lo Uke ihove topics which s" beyond
tb« ahlily or practice ol nny counsel whatever !
Then Ibe next slliick is u|ian (he poor raas-
l«r ol 111* Cnvia^i&tx, Mr Jajues tturrow. i

do not bdiete that there cjriils b ibia world a J
roan of more inflexible intef^ity than air JainMw
Burrow. I never beanlbiiu chained in my likfl
wilhatiy thinglikenpprobriuTD. I bnowperfee^l
ly well ihntif I weretoap^dy to BirJame*Biir>|
row, in order to gH any particular
of Miikinc a jury, eitiwr in London or Mi4>.9
dltrsaz, tliat he would ift himarlf, for Iha wba'
evening afier, lo contriie bow lie could h
CT'OS the purpme ol' that application. I IcbMtJ
be would, I know him very well, 1 ai
it a very bonecl man ; and I am aur«
fara exuecilinuly ill, if I itaa to atlempt tt -^
inike any auch application. None such is tu^>
(ffsteil. 'Bill it is aaid, that the aolioilnr of Ibw
Treasury desired sir James lo Inkelliispart j l»
tike two special jurymen out of erery kaf;
Sivinj; ihit reason for it, because the boofct iwi^llfc
he made up i and thai if it was once knowit Ifr-
be ihe practice of sir Jamea to beniii in th* mid-
dle, ur the end, or any part, they mif^lbe niadm
up by the address of Ibe officer, so a« loci
a panifnlar setof men liir a jury. I wiH U
it as taid by the i^entleman : Ibe aolicitDr u
(wsHil that tbere mi^ht be laheii two out
every Ivaf, nhicb would produce tbe bin
collection of the jury in the broadest n
and out of tbe ^realeat number and variety' «|
names and people. Ha liir I think iMnhiaf
unfair io tbe solicitor's appUcalion:
not know, 1 pniteai to G'>H, at ihia i
nienl, what earthly reason sir Jauiea
could have Id refu<9e that, except Ihe oi
I BtruUfjIy suspect him of, uamely, ll
that it uas detirod hy the solicitiiT for tlw«
crowo : — lijr if he apprehcniled that it would
tpve Ihe ali|{lilesl ground li)r autpicion by talc-
io^ any one article of conduct whatever, be is
very nioe, I know, anil very obtlinale ; and I
aiu sure, nothiofc would biiul bim more surely
ID refuse to take a jury in that, which appear*
to ne to lie the must impanial way i Blrony««
and iguicker (hao an applicatiiin on tbe pari ^
the Nolicilor of the IVeasiiry. That U nu MM
bni ihetheriffsof Lsndun are abused : lb(J4^
rors are named merchants, who are notav'
Why. do I make up that huoki' Is IhalOM^
my oriniesi" Tbe sheriflsof London make i
Up. V, ben it is returoed In ihe Cmwn-o
Ibe names are taken oul of it, in iliemnBi
parlial maimer ; and Ihe whole alate »f lh**<
lOBlead of loading me or any one caocei-BW<I
with tbe sligiilest cahimny, la lite fntlem as? '
quillal that onublhebaill lldoes uoi iher^'
lore relate lo any one concerned In this pios^*
culiun. Then I am (vmnar <*■ another thinf '
lor under all bed adinini«lrBliont, lliere is <"^^
Ibin^sorilcaiproaeouiionsfur tilielsl 1 shonl-^^
be Kind In know in the almtracl (witbout reter^''
riat! IO tlinse decuinenli, bo many of «bich ih-^^
leurikeil Kcnllenian pruiUiced hinseify in th^^
ei|;bt years I have bad Ihe honour ofbetni; At"*'^
toroey-Geneiml, liow many proaecutious t»^^
libclE have been brought i' I wish that was sUt^^
ed, ill order to alien Ihe monktrous Bumber «^^
proaeculions i'er litiela 1 They are not to tnaa^^
as 1 could wiab ; fov if you compue ibe p

Jot a LibeL

with tbe daiW pQUicatioM, that msn
: at those pablteations, and sees how
ink the acandal is upon all orders and
tioiis of men, apon all branches of the
mt and the state, as well as prWate
boever sees that must look at them
rj peculiar eye, if be does not see
ocrease of the scandal is a ^reat deal
n the increase of the prosecution for
lal ! and yet this is one of the topics
hicb I haf e been abused ! It is said
I am corrupt in another respect, be-
ondescend to consider myself as the
the whole public, and so liable to re-
in from every branch of the legisla-
e arg^oments that one hears used npon
uions, they are made only for the

I should not be astonished if from
quarter I had heard it was one of the
archical sentiments in the world, toin-
lere is any public officer who was not'

orders of eiiher House of Parlia-
always took it to be the assumin|f of

call themselves Whigi (for want of
ickname) what I hold — that in a free
represeotatives of the people assem-
rliamont are a sovereign member of
; and that every public officer, g^reat

is amenable to them. But how

to them ? I wish that had been a
e stated. Amenable to them to do
Vo roan ought to l»e amenable to tbe
nd the proudest body of men what-

wronj;. 1 have not been so amen*
in those instances in which I have
: would be u ron^ to prosecute, I have
I (he House, and the House has for-

Crosecutioii upon my representation,
een the conduct which I have held
iccasion ; unci a conduct which, if 1
ioned fur it (in any place whore it
pertinent), I should be very ^lad to
account of that conduct. But, »ya
man (with a strain peculiar to him-
I you submit to be sworn in order to
eJ by me f — To what ? Yes, Sir ; to
let which can l)e alleged in your de-
'ill submit to b<» sworn to the truth of
vill you submit to be sworn in or-
lergn iinpiTtiiient questions about the
lid steps of your cuntluct from time
uch as I shall think proper to put to

nen, I put my«;eif ufion your f^ood
put myself (tor the question was not
you) I put myself upon the candour >
Dod sense of tiie audience, that 1 was j
ntly treated in the proposal ; and that
lavebeen ridiculous to have submitted
ipOAsI ! 1 spoke to some jiersons about
authority 1 am not permuted to ciie to
concurred in opinion with me : but I
and I put it to the mind of every ^en-
vhether I did not act riifht in that
I^ kave refuted him justice would
' ' ud iOBToper measare; 1
^ Wan to AOfirer ia-

A.D. 17T7.

[768

pertinent qaestioos, I did refote it } and I ap-
peal to the candour and good sense Of this an-
dience that 1 did fifrUx to refuse it ; and it wouhl
have been ridicnioua to have done otherwise.

These are the topics which, as far as 1 can
recollect, have b^n produced against me.
With regard to tbe rest, the gentleman infbnns
yon, that tbe lew aa it stands is full of a great
variety of hardships. I don't know that system
of law unde^ heaven which may not be per-
verted to purposes of hardship. I don't know
any thing so perfectly ridiculona as to argue
from the possiDility or the corruption of a good
thing to its worthfessness. In order to make
any thing of that, he should have gone the
length not only of stating what might have
been done, but what was dune ; otherwise yoa
roajr sit and hear that glorioua constitution
(which f have known so many able and elo-
quent writera and speakers extol in the hi^beat
terms to the skies) you may sit and bear it re-
viled from one end to the other: not for the
mischief that it actually doea ; not for the me^
quality in point of justice that it actually ad-
ministers ; but which it might ! But let him
prove that there is any thing in my eonduct of
this prosecution that deserves those epithets
with which he charged it, and I must submit
to be covered with ihem. But that will not
make an iota of difference in your verdict.
What does it signify to you (who sit to con-
sider whether this be a true or a false charge)
that it cornea at this time or at any other ? The
^otleman taxes me with foll^ in saying, that
if it were a crime in 1775, it must he so ia
J777 ! I should hold it to be the utmost folly
to say otherwise. If there were any improper
practices with regard to the prosecution, K
might lie a reason of objection to those who
prosecute ; but with regard to the mere ques-
tion to be put to the jury — is he guilty in man-
ner and form? — it is absolutely nothing; it
would be fully to assert it.

I have now stated to you the progress of
this business, referring to his own witnesses
for the truth of that pnigress ; and I trusty
that upon that representation, 1 shall not be
found to have misconducted myself even in the
course of this prosecution. 1 have gone very
much out of my way, and very contrary to the
turn of my tem|>er, when I have embarked m
far in a defence of myself at all ; hut when
facts are stated, I thought it necessary to re-
state and explain these facts. Beyood that, let
general and loose reHections take «vhBt place
they pleaFC. 1 put my self upon mv public
conduct for my j-.wtiiication, without boasting
of that conduct either one way or the other.
If I am wrong in that conduct, let it condemn
me: if I am right in that conduct, let it up-
prove me. It is upon that only that I desire
to rest it; without boastmg or withtiui dis-
claiming, either on one side or the other. I
will say no more unon that auhject, but refer
it to vou to determine what ought to be dune
upon a charge thus aUted, ami thus industri-
ow^ pro?ad upon Ibe part of tbe defeodmot, if

«69]

17 GEORGE III.

Frociedingt againtt Juhn Harttt,

pso

ipon . aemtinns might hsTe bero

his oideuce, yuii sec liow it sianila'. Tbe ub?
I happ^ resistance to tlie Irgifllilire 4Uthority of
XititA Muntfidd. OontleroCD of Ibcjury, if, tliiskingilom bjr mmy ornurfifllon'-siityects io
CTfr Lliere was n ijueBlioii. the (rue iceriis of America, U loo ctlnmitous an ctrrtt uul In bt
wbich lay ia a very narrow cam[iau, it is ihe impres»ei] upon all yonr luiuilt; alJ the atejN
present. This a bd inlormaliua Bqainst Ihe leading lo it areoftliemoslDuiTersalnotaricty.
JaefeDdBnl for wriliog^anil compasiiig, idiI prinl- The lej^islature of this klDgdoin ha*e a*n*eit
iHK anil publishiag, or cauiing to be printed that the AmericaiH rebelled, becaiiw ihey
•Dil piililislieil, that is, for being tbe antlieraud ' wanted to shake off the sovereignty of thic
publisher of a poprr, which the infurniation , kiagdom; they prnfcat only to bnug their
'Charges an a leditiuus libel. Hit beaneditioua back to be subjecis, and tu quell rebellion
libel in its own nature, there is no juitilicatiou Iroopa are emplnyed, money is expended upon
•tlemptett: why llien there are but t»n points tliia ground; that the cue is here, between a
' ' aalisly yourselres in, in order to the just gorernnient and rebellious suhjecis ; lor -

I

/orcningnfyaur verdict.
I Did be compose and piiblinh ; that is, was
li«lhe author and publiiher uf it? Upon ibis
4ccB8ioD, that is entirely out of the caaei for it
is adiiiilteil. As to the excuse of ignurance, or
Iwing imposed upon (wbich is a topic in tbe
ease of printers and otbets) it is out nf this
ease, because it is avowed lo be done delibe-
rately ; and it is nuw avowed, and the contents
et'tt. IVhy then there remains noihing more
litit that which reading tbe paper must enable
.jou lo form a judfimtnl upon, superiur lo all
the arguraenls in the world ; sod that is.

Is the tense of this paper that arroignment
ef Ihe government, and the employment of the
troops, upon tbe occasion of Lexington men-
tioned in thai paper? Read! Yon will Ibrm
tbe conclusiou yourselTes. What is it? M'hy
it is this; that our beloved American felluw-
>MbjeclB — (therefore innocent men)— in rebel-
lion agsioKt the slate. They are our fellow-
•ubjeclB ; hut not so ahaoluiirly heh>ved wilb-
out eiceiitiou ! Btlciveil to mnny purposes : be-
loved (o be reclaimed : belovrJ to be forgiven :
beloved to have good done to them : but not
beloved so as lo be abetted in their rebellion ! —
«nd therefore that certainly conrrya an idea
Ibal they are innocent. Bill farther it >ays,
that they were iniinmanly innrdereil at [4>i-
ingtoo by the king'* troop*, merrly on accunnt
ffflheij' acting like Engtikhiaen, and preferring
liberty to alarery 1 The inlbrniilion charges
the libel lo relate to tbe king's government and
the employment of his troops. lUad ii, and
•re whether it dues relate lo them. Ifil does,
what is the empluyineni tliey are nrderrd upon ?
what is tbe employment that they execute?
To murder, tbe paper says, iuiiocent snbjf els ;
bfcause Ihey act like Englisbinfii, and prelcr
liberty la slavery ! Why iben, whatarethey
who gave tbe orders? what are they who exe-
cute theoiP Draw the conclusion. It don't
■land upon argument. If any man dares lo

S've orders to murder a subjent, or lo execute
ose nrders, or lu make any sulgect a slave,
lie is aa hit;b a criminal as can exist In this
stale. Evidence has bern examined, and (thouub
unusual) I was very detirous every thing of-
fered should be heard ; and you have had Mr,
Could examined: and whalerer doubt there
might be nilh renntd to tbe occasion of bosti-
litiei at Lexiugluu ; whatever weight tl(e ub-

just and a good purpose, fur the beuelit of ihs
whole. If I don't misiahe, the first hoMililiei
that are committed— (though many steps M
both sides leadins to ibem existed before)-^
but, if 1 do not mi^ilske, the first hiolililiea atfl
those committed upon tbe lOlh of April, I7l&i
If some soldiers, iviihuut aulborilv, had nt )«
a drunken fray, and murder had ensued bbI
that this paper could relate to that, it would he
quite a diffeient thing from the charge tn tbe
informalioo ; brcau'^ it is charged as a aeili^
tiuus libel, lending to disquiet the minds nf ibi
people. Now what evidence has Air. GunU
given? Why, he says, that he was sent witti
a part of the king's troops, hy the order* «|
general Gage, the governor of iheprofiitCH
Ihe commander of the king's Iroopa ; that wbM
they began iheir mnroh (which was abotal lira
or Ibree in the inuruing) he heard (I Ihiab b4
says he heard) a cunlinual firing of alarm can
non, which is a signal, at certain dint.ioce^,
used in America to raise tbe country ; and ih»S
they heard as soon aa Ibey Iteuan their march ;
and from thence thpy concluded iliat Ihe pr»'
vinciaU were marching loollnck them. Whei^
Ibey came within sight nf Ibem, they fouiaal
them armed, in hodiea of troops armed. Tha»
was not a slated lime of peace when ibe king'*
troops, under tbe authority of tbe governnr, e-u
from one part to another ; to have butlirt <>■
men, in military arr^iy, armed, and signal*
fired ! but this llie>; found. And he say*, l»«
cannot tell himself; but to a queation aske*"
him, he says, he heard the provincials ehurce**
our Iron pt. He savs in bis atlidatii, nhick'"
he has hkewise sworn to, and wliirh yoii ma ^
compare, ihal he saw, on their arrival, he xa*^
a body nf provincial troops atmni, to tbe nuna -"
her of about 60 or 70 mcu: "on our arrive ^
Ibey dispersed, and foon alter firing lie^au ^
but which party fire<l first I canunt cxaclI^V'^
say." And then, towards tbe latter part of tb^^
nSidavit, be says. " the provincial Iroopa i*— "''
turned, u tlie number of about ibree or lb«^^
bnndreil. We drew up on tbu Concord sida
the bridge. The prouncials came dowu up
us; u|ioQ wbisli we engaged, and gave IhenP
the first fire." And says he, " thia vtaa ilM
first enga,(emenl after ibe one at LexingtiuLa
A conlinued firini; from bolh parlirs lastnl thai
whole day. I myself was uouuded at the at-
tack of Ine budge, and am now treated with

A. D. 1777.

[76S

1115 U a pri«mer

Now from thii

tMr lUllilarda ; eacli
ttny; the; wrre re«<1y to iighl. VVbo (li
thii eiidcDCe) lireil Hral, lie cannot letl ; tliat
i*, oHipDallj' the first. He beanl tliBt the pro*
nnttiala char^il ; but whether the one or the
Ufa«r fired finii, he cunnot Itrll ; when the two
badiM were in the lield, each expeciiiii; Ibe
Milcr to atUok. This is Ih« account giren hy
the detendanl'a witneas ; thai il was the king's
troop*, by otilrr of the conrnianiler and the ^-
rsrnrneiit, ihnt were en|;aeecl in this fray, in
wbkb thou IJTei were Josil Then if there is
Dtttbiug panicular, but it is a consequence of
Iha general ilispnie. of the cauae of this most
luDentabte and unhappy war, no good man
kal miut lament it, and wiih tbem rcctaimed.
If ill* barely the consequence of that which
b«a M M further hoitililies since, you will read
ibis t
•iUj'

i)M«nt prajiosilion >iir ibe (food and welfare of
ibn kioitdum, the support «f the lei[islBlive
^merainenl, and tbe kini^'s autboritv according
W law ; or whether it is uiit ilenyinit tlie |;o-
rcrameiit and lexialilite ButUority of Eiitcland,
U4 jostifying the Americana; aierrin^ tbnt
tbtjr »re totally innocent ; thai they only de-
HTB Itot to be slaves ; not diipulintr to be'aub-
ImU. but they desire only ii«t to be slatei ; and
that the lue that is made of the lfin)('n troops
upon ihia occasion (for you will carry your
nJnil back to the time when this psjier was
wrote) was to reduce them to slavery. And if
it wu intended to cootey that meauini;, there
««n belittle doabi wlieiher that is an arrai^-
IMot o<' the ((itverunient und of the troops em-
^yrd by them or not. But thai is a matter
foe yaiiT judgment. Von will judkte of the
vmaiDgof il; you will judg^ of the subject
to itbicb it iH applieil, and connrct them tosc-
tktr ; and if it is a criminal arraignment uf
thoe troops, actiuiC under tbe order* of the
oScera employed by the gUTcrnment of this
CMBtry, to cbar)[t- theni with murdering in-
BBCsDt subjects, because they would nut be
^t«, you will lind your verdict one way : but
'fygu are uf opiniun that the cuntf at it to re>
dnee ianocenl «uhjects to at*v*ry, and thsl they
Wen all murdered (like (he cases of undoubted
'~ ' ra, of Gienco, and twenty other mas-
' t might tie named) why then you
a diflerent conclusion, with reifard tu
laing and application of this paper.

you will
ileal that

why I pniis over ■ great

aaid, (hat ought not to ba>e been

it' there is cue thing lbs! is relative

It, and therefore ilou^fhttu be said ;

a doubt (upon one of the former trial*

iB printcra] that occurieil to the jury, in

k they kail a difierennt of opinion ; and

l«*d to come in anil leave it to my ile-

1 bad lohl them (as I told you) (hat

UiB points to guide your verdict was,

njoa undecfWod ibe umtiuij; of ibe

writing to be u charged by the informaiinn.
One of them understood, or doubled, whe-
ther (this wan in the enie, you see, of a
printer, of a third person) whether actual proof
of a seditious inteDlion (ilixtincl from iIm ia>
ference from the act itself) was iiecvasary 10
be proved. The other tbuui^bi that a seditioua
intent was by law tu be Interred from tlie sali-
lious act ; and ihey came in and proimsed their
donbts. And I Inld llieni what I tell you (and
what I brheve never was duubteil, and whil
was not questioned upon llial occaai on, 1 hough 1
desired Ihey would move the conrl upon it,
if they hail any dcuibt) that it is not nec««sary
to prove an actual intent, which is the |trivaia
operation of a man's mind ; but a jury were
to exertiae their judgment from the naiiire of
the act, as to the intent with wbicli it is dune.*
As, if a man writes and publishes a seilitiuui
libel, a libel that has a aeditiona tendeDcy, that
is a ground to a jury from whence to infer—
(when it ia without any jiistilteation, wilbaot
any excuse) — that is a ground Iroio whence 10
inter a sediiioua intent, Jual as if a man
murders another without any jiiBiiticBlinn of
that act, it isB sufficient ground liir the jury to
infrr that be did it maliciously. That answer
WBk given to tbejnry,

Gentlemen, here I conclude every thing I
shall trouble |ou with, by way of charge, b»>
cause ynu will exercise your judgiiii^nl. ■• I
have said before, upon the paper anit the iofor-

by reading them, which you may hav*
rry out with you, ilut merely (or tha
aake of the audience, as suroelhing ban been

so BDuch mentioneil in tbe cause (for I d
give you any reason for taking no notice of
any thing out of it) I think projier to stale ii
in so particular a manner, thai when yon come
to aee it misrepresented, you may all of you
remember what it is, and what il was, and
upon what ground it passed ; and ihai is, with
regard to the Attorney Geiieral's Kfply. Vou
•ee, as the case is, It is entirely out of Ibia
CBUve : lor the defendant baa culled witnessea;
and I Ibmigbt it right that he shimld know it
early, that he might not abstain from calling
witnesses to avoid lh« leply, and in that manner
be aurprited. Now I wdl tell you what I lake
to be the practice witb regard to thsi matter.
The nature of a reply is the plaintiU's answer
to new mailpr advanced by Ibedefendant. The
plainiiff knows his own case ; be kntiws hia
own witnesses ; he openi il ; he uliservea u pon
his wilneaaes ; and he drawa such conchiaions
from them ss he thinka pmper, in persuade a
jury to encreatie thedamuges. The difendool,
if he nnly makes ubsertaliona upon tbe aame
evidence, and only draw* oonelustuiia from the
aame evid^in'e to the jury, tu leiaen the da-
mages; why there, there ia nothing new, iher*
is uo new matter at all : and by the practice,

* Thia neviiu to be aomewbat inconsistent
with what lord Manafiald laid down to lie tbe
law when ileliveringthe judgtoentof tbe Cuuit
la WwOTaira Cue.

763]

17 GEORGE III.

Proeteih^t againtf JoJin ftomr.

[764

for the espedilioo of binin««a in cLtiI cause*,
and in pro*««ationB in ihe n»ine of lli* king,
Willi crtinmon mformtr*, ibe prtctice U, that
tbey ilon't rejily uliire thai ii Ihe caw. But,
noiniiliitamliu^ thai, it lb« detendanl »a» lo
atari a point of law, the othrr miMt be hranl.
If ht: waa W throw odI In the jnry, lo catcli
•ad to Nnrprl*(> lh«n, alirgalinni of fact nhicb
be called no witnesics to prore-'you reculleci
bow manr million! of fecW yoo bare hart iirxed
loMlay, for which no wiinewes were csIImJ—
(how many entrinsic to ibe came)— there Ibe
counielforlhepiaiMii'majsrtiliejury right, and
lay them mil of the causr, and abeiv that Ihrj
are abac Inlely irreleianl and immaterial. Bni,
in MJenMi irialt, in fittile proaecDiinn*, where
the Attorney Oeneral atienri*, I never knew it
^nied but Ibat he bad a right to replv.* I "»«
Biany years aoticitor.H^eneral ; I waa aBoincj

Eeral : I lia»e known it nf\en, where natbinif
bepit lairt for Ihe defendant that they
th«a)ibl called for a reply, 1 neler li new it
denied lo the attorney general, where he m-
■iateil npoo brinfr heafd in reply : and I he-
fieve Ihe prrieut Alinrney General has replii-d
RCTeral time*. This is w mnch tin l«w of ilip
lanti, that (if my memory dnea mil fail me) in
tbe nroil iDlcmn casea (and as 1 speak Irom
memory only, if iliere almuld be any slip in it,
1 hope 1 ahaH be encased) and, lo llie belt of
B)y memory in Ibe trial of oiy ivril Uyrnn (if
any (tenHemMi can correct me, I shall be very
chd to be correcleJ— I dare say there are Bome
Sere that were <if caiinsel in that I'Buie) in lite
trial of lord Ityran,t who called no witnexns,
no eriJence, the Allomey General rcpheil.
The Hon^e »r Canmiani, aa Ihe public prme-
cutor tbr ihe naiinn, insist itpnn it as an alKo-
hiterigbt,lh«tll>evni'e toreply. It ia a j^teai
while ago; but, if my tnemory duen nnt fnil
Bie, 1 Ibtnk 1 rcplifl >br the Hiiune of Com.
noni upon the trial of lord I^val,; tbongh
b« called no e* itience. I speak fmrn memory,
il ia many ypor^ bark ; and therefore if I am
Biitlaken, Tdoil wiih that rewire andqnaliA-
ettioti to be aM riirbl. — ThI* ha^ nolhioir at all
to do with the cause ; but il al leaal ei|j!Kint,
to Ibote who vianl lo underdaiid it, the light
ia which I ffi! ili-ii matter, and Ihe gronnd
U|MD which I ileteniiineil it.

* No in Dr. HenEey's Vmn; altb>Hii.'h tire
priioner bad ^>rn no evidence at til, yet Yotke
■nlicilor general, on the part of ilie crown, was
heard in rcjity tn tile mailers wbicb had been
allegnl in deteneeoT Ihe priaoiier. Sec vol,
19, p. Mtn.

8o in lord Winlnnn'a cafe ; tlion^ih Ihe pri
•OMr calletl 00 wiloenses, the managers fnr the
Comntoni replied. M«e *ul. 15, pp. 864, el
wj.

t See ihe repnrt of il in this Collection,
**>l. 19, p. 11T8 i by which it apiients that lord
Byron called do wilnrsses nor etidcnne, but
MNeoter Ibat lta« Attorney General, did not
wply.

1 See it in lliii Cutleclidli, ro). IB, p. 630.

{The Jury withdrew about Kte o'cUck, mat
relumed into court abont half atk hour atler
■iv i and i[i<>e ia llieir terdid, Ibal Ibe defaa-

danl waa Guilty.]

Further Procbedikos o;* t»8 TkiAK
OF Jons EloRNE, Esa. uPOM ah
I.VFORMATION riLED Ex OrFicto
BY HIS Majesty's Attormev Gt-
NBRAL, FOR A Libel, is tmk.
Court of KtnoVBEUcH, a»^
Wbdxesday the 19tm Atta Mox —

DAY THE 2iTII OF NoVEMBEa.^
1777. [P08LI81IBD »T THK I
PESDAKT, FROM Mb. GfaSl'

SiioRT-HAND Notes.]
Weditrtday, NastmUr 19, 17TT-
Attorney General mored for ju

Bgai

Mr. Hor

Lonl Marafitld. I» the defeodant here ?
Mr. Daniel, the defendaurs attorney.

ewered, that bt was.

I read by order «f ll

Mr. Horne. Wy lords, wilh grt»% Enbmi«n
and retpect to your lonlahips, and in full Off
dence I'ld feeiirily of pruieclion by the lt*1
my cniintry, I preanme to oflvr to your la .
ship! that I am nul, uiion thit inf(irinttiiin,'i
pmper ohji-cl for the judtfmeni Ol ltii» etW*
And, my I'Tda, I rannot mention Mbal I hlH
to my m arreit nf ibi'Judumenl which ttr. U
tnmey-Qrneral ha!i praveit a^iotl mf, wHMI
finct acknowledging the oblig^'ntiaili wllMl' !
Iiaie, and Ihe tliankii which 1 owe, lo my pit
aecutrrr, and to my judge; for, my lonli, i""^
to tliem, and in ihe arguments which tbej s
in nrdi^rto ohtaia a verdict frnm thejory, ilbl
them thai I am indehled for that argutn'^
which muM prereni tile judgment. A( ' ^^
tome lime, my lord*, it ia bat jittiicf hi mi I
declare, that wbitevrril]. founded doubu nrift
at the be:;lnning of ihe trial, lllve hartmureit 1
my mind concerning any peraunal eninM
himliliiY. or prejudice towards me, WA>r« fl
dnse of Ibe trial tbey were all entirety effiuH
till' enmity, my lordf, it not a anpine and mi4
leaf, but an aclire and curinul arinoipli
pr<iiAp<in|: men A neglect noihinf; wfiltdi im
tend 10 pnxluce the desired miaehief. ■-^"
yourlord*blni, I am persnadrd, wills*
to believe wllli me, that, m " ' "
common diligence bavinf; b
ine, neither my [irosecutnr, nor myjudgf, M
my jury had ever ao much asimce oaal antrrf
over Ibe inlbrmaiion Umuehi aeainn me; N
your Inrdihigia will inslanlly perceive, by
in^ al the record, that I ini not Ibereia uhl
wilh any crime.

r from My Ml

B§1

Jl00LiitL

A. D. ITTT.

[788

My ferdb, when finl I itfr IIm ebaige io
w inlmMitioa, I tliougbtofittlieMnewhiGb
DOW •ffnr 10 your loraibipo ; ood tberoforio,
•ring nothiof but tko iDAttention of tbo jury,
le gmaler (Mut of my defeaoe oonsitttd of ao-
rM pcvMcd opoB the jury for tbeir i^tenlioa :
■d wboB I hoped I bad secured that poiot (tbe
aly fa? our, at I tbea declared to tbem, «Hiicb
had to request) 1 then proceeded to shew that
lar* was oot any crime in that which was al-
f^ afaiost ne; keeping my eyes always
■ed upon that with which alone I had to oi;
UBely, the charge in the inlbrmation ; and I
Baired the jury to take the ioforBMtion oot of
Nwt with them.

But, ray lords, when I heard the reply of Mr.
ttomey- General, and the address of the j«dge
I the jury, 1 was no longer it a loss to under-
and how it hajppened tliat 1 could not see in
IO charge agamst me that crimiaal matter
hich they imagined it to contain: ft>r, my
rds, 1 then heani, for the first time, that there
as an insurrection or rebellion in the colooy
' Massachusei's-Bay ; that certain persons*-
id those persons denominated kinff*s troops-—
ere employed by bis majesty and by the go-
tmroeot for the purpose of quelling that in-
srrection or rebellion ; that in this their em-
loyment and service an engagement ensued
ttwoen the said rebels or insurgents and the
lid king's troops so employed ; that in this
■gagemeut certain of the said insurgents or
ribels were slain by tbe said king's troops ; and
bat my adrertisereenl and the charge of OMir-
lor, aaid to be contained in it, related to the said
MOfgents or rebels so slain by the said king^
roeps so employed.

And, my lords, tbe judge did very fairly, and
lary pbinly and precisely, and in express worda
k^m to the jury, that on these circumstances
Kd depend the whole criminality of the charge
ifiifistme.

Now, my lords, though the jury did, through
vast of attention, forgft to consider that
Ibne circumstances were neither proved nor
ebarged; your lordships, I am sure, who are
I* look to nothing but to the record itself; your
iMsbipa, I am sure, will not fail to eonsider,
that BO indictment or information can be cored
* Made good by any implication, argument,
Vippased notoriety, or intendment whate?er.
Nstliittg can be assumed or intended ai^inst
>^, but what is rxpressed in the record itself,
^therefore in the whole range of possible oc-
carrrnces there csn any one be imagined in
^bich it would not be criminal to say that the
Inil^'B troops (no technical term, my lords,
^ffmpeaux. — flocks — companies — even deser-
f«i« may be comprehended under that term)-—
*f tberetbre any one possible occurrence can
^ imagined (aod 1 suppose there are a great
i*any, the judge who tried me helped me to
*NBf, above twenty) — if any one can be ima-
IBiacd, in vhich it would not be criminal to say
^ the king's troops liave committed murder,
^W your lordships cannot, upon this Worma-
^ pcocncd to judgment ; bacaate the iafbr-

8

Mitioi wanftf those nteeasary Mrermcals, which
MDDOl by any HMaaa he intended. For yoor
lordahipo will find, by hiokiog at the record,
that in oaeh of tbe vanoaa oounls which lAiis in*
fermatioii eontiins, it ia simply itverrsd, that I
did write and print and pubiisii, and cause an4
proeure In be written and priated and piiblishod,
to the tenor and eflect fill lowing.

Yoor lordohips will therelare he pleased t*
examine the record; and I have not tlm
amallcst doubt that your hMrdahaps will do bm
that justice which my jury, thffMigh want of
attenbon, did not.

Attmmty G4n§raL My lord, if I under*
stand the effect of this motion, k is, thai Om
Btuitter of the information, as obarffed, does not
state a crime. That indeed ia the nccaainry
form of the obfection to he made in this ataga tf
the business ; for, in this atage of tho businosn,
every thing is to be taken to ha solemnly tm*
wliich that infiirmation has atated as caaentiat
to the constitution of tbe ctIbm, and which tho
jury consequently have fbond. Now, my lerd,
it IS said, that oothmg is to be asaaoMd but
what appears upon the record ; and that the !■•
formation wants aome avennents. 1 waa very
attentive to oolleot, if i possibly eoold, whni
species of averment it was that the informaluNi
waa aupposed to want. Bot f missed it, if it
has been stated on the pari of the deftndant.
What kind of averment inserted in thhi infbr*
mation would have aopplied it, and have tmd%
it a perfect description of the crime f I shall
take op the inforonation itadf to ahew, in th«
ooorae of the argoroent, that Umpb b enoagti
stated in it to nmke the crime. The infirma-
tion-doea not end, as ia aoppoeed on the paK nf
the defendant, merely in tnese words, — that he
had ** written and published, and caused and
procured to be written and published, aooord-
ing to the tenor and effect foMowing.'* The in*
formation steteo exprenly tliat he had— ^ writ*
ten and pnUiabed a certain false, wicked, mali*
cioos, scaodahMM, and aeditious libel of and
concerning hia mi^eaty'a gnvcrmnent and the
employment of hm troopa, aoooning to the
tenor and effect feUowhig.'* So that tbo nut«
ter fbond by tho jury, and upon which your
lordship is either to pronounce judgment, or t»
ssy that, atated ao open the reeard, it amonnte
to no crime in estimation of law, is, that he did
write that false, wicked, malicious, soandalona,
and scditiooa libel of fnd eoBcerninff tbe kingHi
government and the employment oThia troopa.

f own 1 expected that be wouM haye gone
fsrthev, snd that he would have endeavoured t»
prove that such words as are included nnder
the tenor and effect fbltowmg, deKvevad in writ*
iag to be printed and puMiMed ooocerning thn
king's government and concerning the employ-
ment of his troops, were, in themselves, so nrani-
fcatly innocent, tliat it was necessary fbr a court
of justice, upno this record, to say that, aoc*
withstanding the jury haa found a libel pub-
lished according to tbe tenor and effect fidltir-
ing, yat there i0| m tmthi no libel.

f67]

17 GEORGE m.

Pneeedif^t agakM John Hone,

P«

Your lordthipf will obterf e what it if that
he bad aaid concerniog the kio^'a ffOTerament,
and concerning the employment of hia troopa ;
that ** our belofed Amencan fellow-auljecta,
ftitbful to the character of Enffliahmeo, pre-
foring death to alaTery, were, ror (hat reaaon
only, inhumanly munlered by the king'a troopa,
at or near Lexington and Concord in the pro-
vince of Maasachuset'f -Bay, in New England,
on the 19th of laat April.*' Thia therefore ia
what he haa aaid concerning ihe goYemment
and concerning the employment of the troopa ;
that they were to commit murder upon the
king's subjects, only because Ihey were, some-
thing better than innocent,— meritoriooa, in
bein|: faithful to the character of Engiisbmen,
and in preferring death to alavery. If it be
possible to state that these words (uttered and
applied in the manner in which thia record an-
pliea them, to the public gofemment of the
country, and the employment of the troops^ are
innocent worda, then the argument might nave
taken aome foundation. But to say that there
is any want of averment in this— till I hear
what averment could have made this char^fe
more plain, more distinct, aa a charge of murder
upon the king's subjects, against Uie employ-
ment of the troops, against a national exertion
of public force ; it cannot, in my mind, by
Fords be made more strict and plain than it
Qow stands upon the record.

The effect of these words 1 industriously
avoid to speak of now : the degree of favour
that belongs to them will be the subject of far-
ther discuation : the only question that is at
present before the court, is simply this ; whe-
ther the libel, as stated in the record, does or
4oef not contain aufficient matter of slandor.

Reply.

Mr. Rome, I should be very happy, my
lords, at all times to pay to Mr. Attorney-Ge-
neral all those compliments which are person-
ally and officially due to him ; and 1 would ra-
ther have risf|ued the chance of exposing my-
self, than not pay to him the compliment of a
reply ; if iodcned I could have found in his an-
swer any thing to which even the appearance
of a reply could be given. However, 1 will do
for him what 1 can.

Mr. Attorney -General has said, that he could
not discover from any thing which 1 had ad-
vanced, what omitted avermenta were sug-
gested by me to be necessary to tlie informa-
tion. My lords, though Mr. Attorney- General
Biay have missed them, your lordships, I am
aiire, did hear me very plainly and distinctly :
and tliough I did not formally say, such and
auch averments are necessary to the informa-
tion ; yet when I told your lordships, that in
the reply of the Attorney-General, and in the
address of the judge to the jury, 1 then beard,
for the first time, that there was a rebellion in
Massachuset's-Bay, and that certain peraona
were employed to quell that rebellion ; your
lordahipa, 1 am aure, and the whole court very
wall uaderstogd that those were the avermenta

which were necessary to the i
And, my lords, it wan not out of any aatiriesi
inclination that I imputed the omiaaioo of those
avermenta to careleaaneaa ; I bad other les-
sons. For, indeed, I know very well (and
upon reflection I dare aay your lordahipa will
know very well) why thoae avermenta ware
omitted. My lorda, the truth ia, that Mr. At-
torney-General found himaelf between ScyDi
and Charybdis. If he inserted these avemenli,
he split on one side, on the proof. My kNrdi,
the advaotagea are very numerous and giaik
which I should have derived from those avRi-
menta. The information would have been ds-
stroyed, for want of proving what waa avcirnl ;
therefore he did not chuae to aver them. By
the nature of his answer to me, 1 am perraadrd
be waa aware of it : and, from certain bleK-
gence, 1 know that there waa a conaoltation m
the drawing up of the information against as.
It was proposed to alter the information p ksl
having obtained verdicts upon the other ulft^
mations, it waa, upon consultation, agreed ky
the learned gentlemen, the king'a counael, thit
the information against me should be jitenlf
the same. I know it from certain informatili^
which I obtained without the least treachery-is
my informanta ; for the gentlemen who cami
me to know it, had not, in what they said, Ai
least notion that they were telling me any tbiif.
My lords, before I heard Mr. Attomey-G^
nerars answer, 1 waa a little apprehenaive thit
1 might meet with some difficulties. I wm
sure I ran no hazard in the principle of ay
objection. I thought, indeed, that 1 night
perhaps be puzzled in the application of it, if
cases of law, or bv precedents that 1 had isvif
before heard of. Now, my lords, though Mr.
Attorney General has not favoured me witli
any, and though 1 caDnot myself give yoa aa
adjudi;ed case ; yet your lordships will forgivs
me, uliused to these matters, if 1 read to yoa
the opinion of a learned judge in a matter
exactly similar to this. It is in the case of loid
Uussell. The opinion 1 mean is that of Sir
Robert Atkins. His words are remarkably
fortunate for me ; and it l>eing that kind of lav
obvious to persons who pretend to underataad
no more than what common sense will direct
them to, I did happen to have read that bosk
long ago. 1 beg leave to read some little of it,
because it literally applies. He takea notice of
that part of the indictment where it is averred
against lord Russell, that he was at a consul*'
tation for the purpose of seizing the kiof['i
guards. He says, * guards' [there is no £^
ference between guards and troops,— exeejift
indeed that troops is a much wider word thas
guards. Troops ! we say a troop of atroUiog
players.].

"The guards—What guards? What, «'
whom does the law understand or allow to ki
the king's f^uards, for the preaervation of hit
person ? VVhom shall the court that tried thii
noble lord, whom shall the judges of the lav
that were then present, and upon their ottk^p
whom shall they judge or legally undcnliiA

Jbr a Lihdn

i gvtrdt P Tbev never read of them in
r law-books. There it not any vtatute
il makes the least mentioo of any

The law of £iifl:laiid takes no notice
inch ^ards; and therefore the indict*
unceruin and void.*' He savs, ** the
lis subjects is, next under God, the best
}f kings." He says, — " The very
hat tried tliis noble lord were the king^s

and the kingdom's guards, and this
issell's guard against all erroneous and
ct iodictments from all false evidence
K)f"^(VVhat immediately follows does
leed, apply in my case)-»*< from all
»f wit au(l oratory'*— (there has been
re, my lords) — ** misapplied and abused
sel. It had been fit for the court that
is noble lord on this indictment, to have
I themselves From the king's counsel,
IS mpsnt by these guards. But admit the
and destroying of those whs are now
le king's life- guard, had been the guard
I within this or6r//ai^" or open deed,
my lords, are the averments which are
to those that I propose^-these are the
Its which Mr. Attorney-General in-
after) *< yet (he says) the indictment
have set forth, that de facto the king
•en a certain number of men to attend
d guani bis person, and set forth where
I attend, as at Whitehall, or the Meuse,
Savoy, &c. and that these were th«
intended by the indictment to be seized
itruyed ; that by this setting forth, the
ight have taken notice judicially, what
3 were;<neant : but to seize and destroy
f% giv^riiH, and not shew who and what
It, makes the indictment very insufii-
' My lords, Mr. Attoniey-Genernl (I
moon's pardon, 1 shall Uke up very little
time) the Attorney General says, be ex*

should have said that the matter con-
1 the information is no lit>el. 1 should
have said so, if libel had been such a
il term that 1 could have known what
I: and if it was such a definite and
d term, then perhaps my objection
ot have all that weight with you which
elieve it will. The sending oVa wooden
as adjudged by this court to be a libel,
ire noany other things that might be
m1 libels. It is impossible lor me to
it libel means. It is not a technical
md perhaps if it had been, the Attorney-
would not have had quite so much
y to make this information goo<l : but
g a technical term, it makes those other
its the more necessary.
Utomey General has then tried to help
nency of the averments in the informa-
of and concerning — " of and concern-
majesty's government and the employ-
r his troops." — 1 l»elieve there is no
oroprehended in * of and concerning ;'

I *ol. 9. p. 730.

k by ThicknwM to lord Orwall.

A, D. irn.

[770

for it may be of and concerning good, as welh
as bad. The word * concerning' means, kMk-
iug at together ; and that is the only, and the
single meaning of the word * concerning.'*

Now, my lords, if Mr. Attorney General
should succeed in this his prayer, he will be a
very fortunate, though not a very reasonable
gentleman.

Mv lords, a proof of all those matters which
should have been averred (which I am founded
in saying by the opinion of the judge, who
pressed them upon tne jury as motives for their
verdict, and which I firmly believe he would
not have done, if he had not believed that they
were contained in the information) a proof, my
lords, of all those circumstances was supplied
for the Attorney General by the judge on the
trial ; for he produced no evidence of thhn
himself: and he will be very fortunate, indeed^
if he cau now prevail upon the Court to. supply
likewise the deficiencies in the information.

Lord Manifield, Whatever the degree ef
guilt may be, how strongly soever it may have
been proved, or whatever observationa may
have arisen in this case ; yet if the defendant
has a legal advantage from a literal flaw, God
forbid that he should not have the benefit of it.
It is most certain, that at the trial the infornu-
tion was considered to be words spoke of and
concerning the king's government and his em*
ployment of his troops ; that is, the employ-
ment of the troops by government. Upon that
g-ound the defendant called a witness, Mr.
ould. The Attorney General rose to object
to him ; but it was very clear that he was a

{iroper witness ; and he acouiesced immediate*
y, because it was extremely material to sheir
what the subject-matter was to which the libel
related— if it was the employment of the troope
under proper authority that came within the
charge in the information.— Had it been a law-
less fray (which 1 believe 1 said at the trial,)
had it beeu a lawless fray il would not.
Though the saying so might have been a libel
of the individual's, yet it would not have beeD
this libel : it would not have been this libel of
the king's troops employed by him. Now at
first, and at present, it seems to me, that ** of
and concerning the king's government and the
employment of his troops," pins it down. But
1 doubt a little upon it. There is sooie weight
in the otfjeclion, whether in the form of draw-
ing there should not have been innuendoes. la
common reason and understanding, it is charg-
ed ; but whether technically charged or not, 1
do not know ; and therefore as to this point,
without prejudice we will take some time to
consider of it ; to see whether precedents can
be found which require this technical scrupu-

* In maintenance of this argnment, Mr.
Home published his * Letter to Mr. Dunning
on the English particle,' (as to which, see llos-
well's Life of Dr. Johnson, vol. 3, p. 37B, 8vo
edition) the cootents of which he afierwarde
incorporated into cbapten 0, 7, aud tf| of Ike

9D

' »71I

17 GEORGE III.

Procftdings egaiiiit John Home,

[T7«

loaity wet ■nd ttwte ihat ceruiolj wbieh it
puffioienl lo CTvry reailcr: and we will go on
KJlti ihe r«tl, dt A(t« eue, >« we could nol pro-
nojiice judgement u|Hiii it now, and will eoa-
pr ot it till be comes u|> igiin, if we find
■ulficiml to ntitfy ua Id over-rule ilie ob-

Lord Manifield. This ii an inrnrmalioa filed
iy tlie Allomey Gt^neral a^iiiH Jolni Hnrue ;

' nd il WM (or puLliifaing ihe adterlisemcDli
Ihtt have hem resit from ttie infomiBliDn.

Tliomai Wilson proTed the adverliBeinvnti
in queiitioD, the maniucripU, to he llie hand nf
Horn* ; and Henry Simpson Wnoilfill, he

ypnbltahed the adverliielneDla. He sweara
that the derendaoi gafe him a paper the Tth nf
jniie, to publish in his own and send to Ihe
Other pa]ieri ; and thai the del'endanl paid the
A«s. Tuea he produced Iwo advertieemrnls
10 publisli. The detendint crOM- examined
Mm, and he assented to the queatinn of the
frost-exam inalioo, bj aayini;, '' By your de-
lire 1 inserted these adiertiienieiils, iiiiil pub-
fiahed Ihetn as your act and deed. Vou neter

• dcaired. to be tcreened ; but you desirrd to be
given tip. You said, they Bbuuld nol want fiiM
•fidenoe." William Wuodfull prari'd likewise
> paper given him by the delendant lo be in-
«rted in The Loodon Paciiet ami hlomitit;

■ Chronicle ; which were the advert is emen Is in
Ihe record. ThenH'on:, upon Ihe fact of priut-
Ug aoil publiihing ihere is no doubt at all.

The defendant called a witness in prove, that

■ Kally and in trnlh there was a subseriplian,
and that ihe money was artually rained; and
be likewise called William Lacey. whii proved
Ibat 1001. was paid to him, and by him remit-
ted to Dr. Franklin : that was 100/. and no
IDare. And then ihedefcndaot called Thorolon
Gould. And he «aid, that at Lexin^oo, on llie
19lh of April 1775, he was a aubaliern officer.
He was ordered there by the adjutant of ge-
Deral Gage, the commander in chief of hia
majesty's troops, and governor of the pro? ince :
Mid liP, to^elhiY wilh the olher iruops, act out ;
«nd briwFvn two and Ihrce in Ihe miiming he

ttas ti

1 pri

: Ihul hehrnrillhe

fllals charg^ our lri)ii|iH.— " We fuunit them
srmed. We siippoaed they were marchiui; to
■Hack us, from a cMnlinual ttrmg of alarm can-
■en, €arly In ihe morning, ai aoun as we began
U inarofi. NotiBe or alarm gun* are lo raiae
the woiilty." Upon this evidence (he jury
' Ibnnd him ^Jlly.

■ liord WoajifeM. Mr, Atiomey General,
have you any thing to «ay ?

All. Gen. Mr. Home, 1 suppose, will sav
»balhecanine»eniutioii. ' '

Ixirri iitaniJitliS. Mr. Attorney General, have
y»u any thing lo aay f

All. Om. It balonga to the defendant, I
•pnreheiid, M sMte what be can lo ihe Court

•.Uonc. lahallaUUiiothtastBefieDua-

lioo till your lordship's decision h
ihal there was a crimr. I do not know when
the crime lies at preaenl. My ohjeMion %ot»,
that there la no tnime in Ihe inl'ormatioa. 1%.
a ini|io>«ihte for me to extetiuale Uial wfaich | I
■ ■ not BCknowtege. i

Lord Maaifieid. Have you aoaflidafiu at ]
circumaiBDces, or any Ihiag?

Hr. Home, None in Ihe world.

Lord Manijidd. Let him be eonimtlled.

Mr. Home. Will your lordabip comtnil nitt;
before it appears ithether I a
-■'any crime?

Lord ilanrfield. No, then vou may c
I on Monday. — You came volUDiarily nr

Mr. Horni, I did.

Lord MantJitU. Then come op vo1aDlaril]|
again. — If yon ahuuld And any precedenls o^:^
either aide, I wish you would ^ve Ihem to r^ _

[Thia recommendalioii In bring prrrnliiir ^

u repeated lu the Attorney Geiiet*! awl i^
Ihe ileleiidanl. two or three umea.

To whii:h Mr. Korne replied, ihat be frim
tl himself very likely to produce precedent*. '

Kino's Bench; Mondai/, Hon. 34, ITfT.

Lord Maaifield. In reading my iiotai tl
other day in the case of The King and Hona^
1 overlooked Ibe reference lo a writleo plc«e K
etidence Ihat was giveD by him at llie trial, ac*^
I am told I did nul ilitte It; and iheretbre .1
will slate il now.

He produced lo captain Gnuld thePobiM
Adverljaer of the 31st of May 1T75, whicli
purported to be ihe copy of au atfidnvil mada
by caplaiD Gould, while he naa a prisoner id
Ibe custody nf ihe rebels al Medlbrd. and prio*-
ed in that paper: and he asked him whetb^
the contents were truly printed. I told hiKK>>
that if he meant lo provig llm facts to be true ^u
above, it could not be pruved by affidavit, tf*
man being present ; end even il he was absen ^
lliey could not lie proved by ofiidivil : but il*^
if he meant to shew thai, ai thai lime, ib^a^*
existed a public nccnunl of it in ihe paper ; t1> "'
might be of use lorcslraiD or qualify ihe mca. ^^
ing of the paper that was in question by the »dH
formalion. Be said, he desireil it to b« read _^H
thai light ; Bod iu that U|;lil it was read, and ^H
aslollowg: ^|

" I Edward ThototOn Gould, of hla majt?" ■^'
ty's own regiment of fool, beioc of lawful aj^^'-
do testily and declare, that on the evening of i^V*
18th inslnut, under Ihe orders of general Gae — "^'
I emburkfd with Ihe light infantry and gren^^^*
diers of tlie line commanded by roloDel Smitl
and landed on i be marshes of Cambridge, fr
whence we proceeded lo Lexiogloii. On oi
arrival at thai place we saw a bmly of provlia
ciil troops armed, lo ihe number of about GO D
TO men. Onourapprnach Ihey dispersed, an-
soon after firing began ; but which party ftret
fif^t, I cannot exaclly say, as iiur Iroujis rush-
ed on shouting and huzzaing previous to tfai
Griug, wbicJi waa caniinued by oui tcMpa

Jcra IdbeL

•oy of ibt proTiDciftls were to be seen,
beoce we marched to Concord. Oo a
rthe entnnceof the towo we saw ano-
Jj of the provincials assembled. The
faotry companies were ordered up the
isperse them. On our approach they
d towards Concord. The grenadiers
mI the road under the hill towards the
Six Gom|Minies of light infantry were
down to take possession of tbe bridge,
he provincials retreated over. The oom-
commanded was one. Three companies
above detachment went forward about
les. In the mean time the provincial
*eturned, to the number of about 3 or
Ve drew up on the Concord side of the
The proviucisls came down unon us ;
hich we engaged and gave the orst fire.
IS the first engasremeut a^Ur the one at
ton. A continued firing from botli par-
ted through the whole day. I myself
unded at the attack of the bridge, and

V treated with the greatest humanity ,
in all possible care of by the provincials
ford.

" Edward Tuoroton Gould."

e was a motion made the other day in
»f judgment, and many objections, I
(kmI, that were taken to shew that the
as it stands upon this record, is Insuf-
n law to support any judgment : that
as no avermeut as to the state of the
hoset's colony at that time ; either that
^ere riots, insurrections, or rebellions :
re were no averments that the king had

Y troops ; that there was no averment
fre was any skirmish or eni^agement ;

it began ; or the nature of it: how it
or how it went on, or ended : and that
)ot averred that the employment of the
^as by the kint^'s authority. The only
n that had colour in it was, what 1
led last — that the employment of the
was not averred to be oy the king's au-
I thought then, aud said, that the
ot of the words being written ** of and
linff the king's government,'*was anan-
t>ut no precedent was cited or alluded to
n side. I fancy the Attorney -General
rpriseil with ihe objection. But there

precedent ; and I could not say U|>on
mory whether prece<lents iiiit>:ht not re-
iome technical form of expression as to
*dium through which words are averred
-ritten of the kind's government And
law had happened tunnally, techuically,
ally, that were noi at all founded in the
)r reason of the thing, I sh(»uld in this
of the same opinion that I was in the
an outlawry — that the defendant fiii|(ht
! the benefit of it : and theretore 1 detiir-
we might tliink of it tor some time, that
puts might be searched, and the inioks
into. We have fully couNidered of it,
I precedents have bc^n looked into, and
rt fully considered the informatioOi and

A. D. 1777.

[774

all the objections that were mentioned, and all
the objections that we could think of; and we
are all clearly of opinion, without any doubt^
that the information insufficient. An imlict^
mentor bforroation must charge what in law
constitutes the crime, with such certainty ae
must be proved ; but that certainty may arise
from necessary infereuce ; in the manner set-
tled in the case of The King and Lawley in
Strange. Plain words, in a libel, speak for
themselves. If they are doubtful, their mean-
ing must be ascertained by an inuendo. Here
the words are plain ; they want no inuendo.
They are averred to be written ** of and con-
cerning the king's government and the employ-
ment of his troops." Tlie obvious meaningis,
that theemphiyment of the king's troops must
be under his authority ; and it necessarily isso,
if the words also relate to and are written of an^
concerning the king's government. This musi
now be taken to be true ; because the verdict
finds it. Had the question arose upon a de-
murrer, it must equally have be^n taken to be
true. The gist of every charge of every libel
consists in the person or matter of ana con-
cerning whom or which the' words are averred
to he said or written. In the King against Al-
derton the information was held bad, because
it was not laid in the information, it was not
laid that the liliel was .of or concerning the
justices of Sufiolk. Where the words are
averred to be written of the king's government
where— (there are several presents)— or of
the government of the kingdom, or of the go*
vernment, suppose, of the navy ; as to any
thing further as to which thev are also written,
through the medium of which they calumniate
the king's government, there is no form of ez*

Kression technically necessary. And it cannot
e ; because there ma^ be cases where the
king's government might be calumuiated
through an imputation up«)n the gros^ licen-
tiousness of his troops. The question to b#
tried is, whether the wonhi laid are written of
the king's government. It may vary the de-
gree of mischief, guilt, or niahce ; but it is to*
tally immaterial as to the constitution of the
crime upon the reconi, whether the words re-
fer to something that has existed, or are an en-
tire fiction. Had Leiiugton been left out ; or
had any other place been mentione«i, where
there had been no skirmishes, or engagement,
instead of Lexington; it would witlkout any
inuendo have lieen equally a hliel. It is the
duty of the jury, to construe plain words and
clear allusions to matters of universal notoriety,
according to their obvious meaning, and as
every body else who reads must understand
them, fiut the defendant may give evidence
to shew that, in the cai»e in question, they were
used in a different, or in s qualified sense. If
no such evidence is ifiven, the ohvious nieaniiig
to every man's uuder«taudiog iuufctl>e decisive.
Before this trial, five Meveral juries hail found
thoMe words, from their uecesHsry ineaninir, to
be of and concerning the kiiiir** government.
Uerci in this case, the detendant ga% e e videuce :

775]

17 GEORGE III. Proeeedingt ttgain$t John Home,

[77«

and the evidence he gafe demonstrated that
the words related to troops actiDff under the
king's authority ; and consequently related to
the khig's gOTemment. And 1 am the more
confirmed that upon this occasion there ia little
colour uf doubt of any flaw in the information,
that in those fife triais that I allude to, in one
or other of them, a great Tariety of counsel of
learning, eminence, and ability, were employed.
They were called upon to pry with alt the
aharpness that they iiad into the information,
to pick a hole in it : there were three judg-
ments gifen upon coRTiction upon them ; and
no counsel saw or imagined there was any flaw
in it. Therefore we are all satisfied that the in-
formation is sufficient.

Ait, Gen, The defendant has been conricted
on the oaths of tweWe of his countrymen with
baring written, printed, and published, and
caused to lie written, printed, and published, a
certain false, wicked, malicious, scandalous,
and seditious lihel of and concerning the king's
gofernment and the employment of his troops ;
asserting, that the national force of this coun-
try has been employed in the murder of the
king's subjects, for as meritorious an attribute
as can be imputed to man : and he has specified
the time and place at which that was done.

The chsrge, as contained in the informa-
tion, rests within a narrow compals. I
might hare stated, perhaps, and proved a dif-
ferent crime to have arisen upon it ; but I did
state that which, according to my judgment,
was a crime of such quality, was a crime of such
beinousness, and of such a size, as fairly
called for the hii^hest resentment which any
court of justice has thought proper to use with
respect to crimes of this denomination. My
lord, although the crime, upon the state of it in
the information, rests within the compass u hich
I have now mentioned ; yet, as it now comes
before the Court, the matter that now requires
the consideration of justice does not lie within
that narrow compass. The iJefen'lant himself
has thought it inip*irtaiit to the situation uhich
he wishes to hold with a certain body of men in
this country, not to leave it just in the place in
which the information does: he has thoujj^ht it
essential to his views (which 1 don't enter into
particularly what they are), but he has thought
It essential to his views, to prove how much he
meant hy writing in that manner to the puhh'c ;
and also to prove huw much he meant', and
how cfirectly, how |>ointedly, and how confi-
dently, to insult the public justice of the coun-
try, by not only committintx as hi«jti a crime as
couhl be committeil within the description of
misdemeanor aj^ainst the public authority
and welfare, hut hy stating himself to have
committed that crime with u view of insult io(r
the public jufitice of the country. My lord, if
it hud been essential to uh to prove that tliat
crime, and that that case which is specified in
the indictment, was the suhject of a murder
committed under public authority by the na-
tional forces of the couutry, be has himself

thought proper to state and to prore by .
witnesses, that he meant the attack DMde by
the king's troops. upon a body of rebels. Yonr
lordship has taken notice of the addittoa sf
this affidatitthat was introduced into the cause.
The effect of that evidence was to prove that
which was but too well known before, namely,
that in \\ik time there specified, the 19th of
April, 1775. the rebels had arrayed themselves
in arms ; had formed majj^azines ; bad takes
stations in the country in which they had
placed tbeonselves ; were ready tosurroand Ibe
forces of the king, as far as their abilities conid
do it, upon any motion to be made by these
forces ; that upon the instant, very early in tbe
morning, (and whether accidentally or other-
wise let that be decided by the witnesses) the
king's troops, marching in perfect sileuoe—
that, upon the instant of that happening, tbe
first demonstrations that were made upon the
part of the rebela was tbe firing alarm-gusi:
understood exceedingly well by the witness, isd
exceedingly well explained by him : it proved
that he understood them perfectly, namely, br
the rebel troops instantly surrounding them. 1
state that to have been industriously proved oa
the part of the defendant, in order to miA
that he meant to fly at the very highest ss^
ject, and to offend in the most heinous manner
in which it was possible for him to contrive to
ofiend.

My lord, he did not think it enough to bifi
proved that such was the intention of the papff
with which he was at that time charged ; Nt
he also thought it incumbent upon him to pts-
duce witnesses to prove another part of tke
contents of that paper ; namely, that be had
attended a solemn meeting ; at which meedog
he, with certain other persons there si-
sembled, had contributed money to the amount
of aliout 100/. and that tbe purpose for
which they contributed it, was the comfort
and relief of those whose merits with tbeis
was stated to consist in no other particular
than the circumstance of their relation to
those rebels that stood in arms against the
king's forces: he brou((ht witufsses to prove
the fact. That the money was actually paid,
is not the thin^; that I pin upon : let it be
doubted whether the 50/. came actually to the
hands of the banker ; or that tbe money iras
afterwards applied to any of the purposes that
are there state<l. To be sure, there was sot
proof alleged upon that subject. Whether it ia
to go to those people, or whether it is to go to
any other purposes similar to those, in the in-
tention of those who subscribed the money
(that is, the insulting and aflTronting governmeot
and the king,) it is a matter of very little con-
sequence to the point 1 am now speaking to.
lie was at the pains to prove that they went
through that business that I am stating to yoar
lordships in order to afford comfort and relin
to those who stood in that species of relation fo
rebels; which, as far as it goes, is to excite
that rebellion, by offering that degree of enooS"
ragement to those who bhall happen to perish

77]

fir a Libd.

A. D. 1117.

[778

a tiicb a flagitioiis ofience : as far as it goes,
I amoants to that. The libel tberefore that
low stands before your lordshiii, which the oc-
asioiis of the defendant of a different sort (which
shall hafe occasion to speak more particu-
irly to presently) obliged him to aggra?ate,
Uiged him to g^o to the extent that 1 have now
tated, is such a one that I beliefe it will be
otally impossible for the imagination of any
oan, however shrewd, to state a libel more
candalous and base in the fact imputed, more
aalifraant and hostile to the country in which
be libeller was born, more dangerous in the
sample, if it were suffered to pass unpunished,
ban this which I hare now stated to your
irdship.

Your lordships have seen that the libel is
nch, that Jt is impossible by any epithets to
ggravate it. 1 depend entirely upon the
late which I refer to— which your lordship
laa delivered to the Court. — I depend upon
bat for the roost emphstical description of every
ireumstance that tends to ereate criminality,
•hich IS possible to be alleged not only against
his, but against any other libeller whatsoever.*

My lord, such was the nature of the libel,
rbe next Question that I meant to trouble your
ordship upon, is the conduct of the present
Sefendant in the article of publishing the libel ;
lad, subsequently to that publication, in the
article of avowing it, holding it up, maintaining
it to the world, thrusting it in the face of justice,

and proclaiming * Sic honor et nomen di-

viais vatibus.' It is a language addresseil to
the lowest and most miserable mortals. There
■ BO roan of any value in point of understand-
lag in this country, that does not know that
tbe information contained in it is false, absurd,
impossible, even below the worth of refutation ;
^t it is addressed to the lowest of the mob and
to the bulk of the people, who it is fit should be
othcrivise tauj^ht, who it is fit should be other-
wiw governed in this country. My lord, the
•ocasions oi' this reverend gentleman to keep
vp the opinion of a particular part of the fac-
tions in this country, his private occasions
obliged him to be very distinct, and rery
taxioas to e.i'plain it. On the part of the pro-
tecotor, it was enou(;h to prove that he had
^oUished the libel. The evidence for the pro-
Mcutor went plainly and distinctly to that fact,
^e protloced the original paper under his
iMad. We produced the man to whom it was

* In the * Memoirs of John Home Tooke,
iotereiiersed with original documents, by Alex-
tader Isilephens, esq. of the honourable society
•f the Middle Temple,' (vol. 2, pp. 461, 462.
8vo ed. 181.i) it is said that " Thurlow, after he
kftd nin theraoe of ambition, courted his [Hnrne
Tooke't] acquaintance in the peaceful shades
•f retirement." S^-e, also, pp. 250, 260.326, of
^sime volume, and in the New Pari. Hist.,
^debatea in the House of Lords on the Bill
' to remove doubts respecting the eligibility of
{•vions in holy orders to sit in the Ilouse of
MfluooDSy' Stat. 41 Geo. 3, c. 63.

2

deKfered, Woodfall, in order to pnUish it in
a paper which he printed himself, called The
Public Advertiser. We proceeded to provo
that the occasion of delivering it to bim, aDd
the office in which he was employed, was nol
merely to publish it in that paper, but to carry
it round to all the other public papers, and to
make the dispersion of it as universal as ho
possibly could. Here therefore we did esta-
blish upim him, by these plain facts, a publica-
tion of as universal a sort as it was possible for
him to obtain.

One would hare thought that these facts so
stated had constituted crime enong^h. But it
is not enough to be criminal, with this man ; he
must be criminal in a way that may shew
himself able to defy justice ; in a way lo con-
vey to the people, who believe in those foolish
representations, that they actually do trample
upon justice. I believe a great multitude of
those gentlemen called authors, Mr. Woodfall'a
contractors, are men, in fact, who are just ca-
pable of writing in an impudent style. The
single, simple merits of an impudent style is, I
suppose, qualification enough to prevent any
material distinction between his whole rabbfe
of authors. If there is any distinrtion at all,
it must arise from the superior confidence of
those who can not only write in that style, but
stand forth in the face of the justice of the
country, and say — ' punish me if you dare.*
— These men lose their credit, these men lose
their opportunities with their own faction, if,
when called upon for their crimes, they donH
preserve the same impudence. That made it
necessary for the present defendant not to be
salisfied with what the prosecutor bad proved
upon him, but to undertake a proof of his own ;
to put him upon atill higher ground with his
connections. By the examination of Woodfall;
he has undertaken to prove that the method of
his transactions with him had been at all times,
that he should at all times, for his^ own sake,
if called upon, give him up to justice. A
good decent sort of contract, that long way
back, between a divine of the church of Eng-
land and his printer ! that he should print for
him upon the terms of the said divine being
ready to be giren up to justice, at all times
when he should be called upon ! My lord, the
first instance of the execution of that contract
was upon a polemical subject of divinity, be-
tween this gentleman and one of his parishioners,
sir John Gibbon!*. Mr. Woodfall did not state
to the Court which part was taken by which :
I cannot possibly tell how the controversy end-
ed : but in an extract upon the subject of reli-
gion, tor the edification of the parish, it was
necessary that there should this contract inter-
vene, that the reverend author should be ready
to stand forth, in case the printer was called
upon. But with regard to the present publi-
cation, this was to be much more emphstical.
He had been called upon in another place. He
was afraid that he had not been thoii|Kht by
his friends to be confident enou((h in maintain-
ing what he wai charged with ; and tbati If

T79]

17 GEORGE III.

he eBcaped, it was upon boom doubt, whelher
the frailt was proved upon hira er not : upoo
whicb he called upon tnis Woodfall to depose,
that in the manner of deliverini;^ him that
■aper, it was. done with an industrious sod af-
fected solemnity. The words of it were, ** —
did I, or did I not, formally heibre the witness,
when called in, dcliTer that paper as my act
and deed ; as if it had been a bond ?" — And in
the latter eud of the evidence,—*' if they now
chuse to take notice of this advertisement' ' —
it was to that purpose ; for this reason, tbst
*' in the Isst transaction before the House of
Commons it was pretended they let me off be-
cause they could not get full evidence. Do you
remember 1 said, that if the}* now chose to
take notice of tiiis advertisement, they should
not want full evidence ?"— Now, my lord, to
be sure what had passed between this author
and this prinU^r, (whether it was more or less in
confidence) would have made it of no conse-
quence whatever to the public. It would have
been impOKsilile for us to have known it ; or, if
it had, to have adduced itiu evidence. That
would have been of no conKequeuqe whatever
lo the public. It never could have attained to
the public knowledge, ezceptin||f that interest
1 have so often alluded to, that interest of
recommendint; himself to his patrons, and
defyinj; public justice.

1 don't state ilie offence to have consisted in
4he conversation that was held between him
atid the printer ; but I state the offence to arise
in his anxiety to proclaim to the public, that
•uch is the manner in which he dares to insult
the justice of the country. There arises the
A(jrgravation of the crime, in tlie manner in
which t have stated.

With regard to the rest, the strsne^e conduct
of the defendant — I don*t know whether that
is prn^ierly before the Court, any more than his
misre|)resentalion of tlie proceedings of the
Court ; which 1 shall urg;e for no earthly pur-
pose but this: in order to demonstrate that
the aim and ol>ject of publishiniir so very in-
famous a libel as this, went even beyond the
libel itself; to endeavour, if he could, to make
a paradeful triumph over justice. That, I take
it, is the aim aud object of the vhole.

I hare done my duty with regard to the
char«re thai is now before the Court. With re-
gard to the puiii^inwnt aUo, it is my province
and my dut^* to sptrak.

All other crimes of sperific denomination
Are followed by tbe letter of the law with |ie-
culiar punishments : and they are held forili,
by that punishment and by that denuminiUion,
to the |ieo|jle in the true (Miut uf view in which
it is the interest uf the public that they hhould
be Keen. The law, by enaciinjif particular
punishment U|ion R|kecitic crimes, has u^led to
the public that degrtfe of ternir to arise from
the example of puoisluneat, wliich in uiKduui,
it is hoptMl, will be suifictent to restrain of.
fenders fromcommiuiag the same ciiiues. My
lord, that is nut so in the case of a mimlemea-
MOTS wUch hi Us variety. and cousequeacai

Proeeeditigi against John Home^ [780

may involve crim^ of a different nature and
complexion, and of very different degrees of
guilt. Concerning those crinses the publie
neither has a right nor can poasibly be inform-
ed in any other manner than by the jadgmcnl
of this court. My lord, this Court, in pro«
nouncing judgment upon this ofiencep is to do
by this species of offence, with regard to the
rest of the public, and to the purpose of deterr-
ing crimes, whst the law doea when it apedfies
particular punishments. Your lordships ars
m these cases to supply the deficiencies of the
law, and to shew to those who have beeo de«
sirous to offend the laws of their country* bjr
the example of its punuikment, in whst sort of
estimation this degree of guilt is held by ths
Isw : snd I, whatever I have thought upoo the
subject, shall be obliged to confess, that if lbs
punishment is less than the old deliberate judg-
ment has gone to and rested upoo, that I bare
been mistaken in the nature of the crime. All
my apology for the mistake roust consist mb-
ply in this single circumstance : that, lying M
near to high treason, it was very difficult for
my imagination and judgment to draw tbe liw
between them. That must be my apology, if
1 have mistaken the nature and quality M thii
crime.

My lonl, the punishments to be inflicted npos
misdemeaiMrs of this sort, have usually mcs
of three different kinds ; fine, corporal pnoiih-
ment by imprisonment, and infamy by tbe
jnilgment of the pillory. With regard to the
fine, it is impossible (or justice to make tkii
sort of punishment, however the infamy villi
always fall upon the offender ; because it li wdl
known, that men who have more wealth, «li*
have better and more respectful situatious ui
reputations to be watchful over, employ men in
desperate situations both of circumstances ind
characters, in order to do that which serttf
their party purposes : aud when the puuisb-
meut comes to be iuflivted, this court mast
have regard to the appareut situation aud cir-
cumstances of the man employed, that is, of
the man convicted, with regard to the puniib*
ment.

With regard to imprisonment, tliat is a spf-
cies of punishment nut to be considered alike in
all cases, but varies with the person who is to
be the object of it : and so varies with the pe^
son, that it would be proper fur the judgmeotof
tiie court to state circumstances which will
make the imprisonment fall lighter or hesfieri
as the truth is, upon the |>erson presented to tko
court. 1 say, my lord, that would be propcft
if 1 had not been spared all trouble upon tbit
account b)' hearing it solemnly avowed is
your lordship*s presence, by the defettdiot
himself, that imprisonment \^us no kinil of is-
conveim'uce to him : for that certain employ-
ments, which he did not stale, would occasioo
his confinement in so close a way, that it «ti
mere matter of circumstance vi heiher it hs^
riened in one place ur another ; and that tkl
longest imprisonment which tliis court coalA
iullict for punishment, was m>t beyond ik*

:

s

3»]

for a LiM.

*€cb of arcimirooflarmii which those occasions
mleKd iwoetsary td him. Id this respect,
lerelbre, imprtsonment is not only as vrkb re-
lect to the person not an adequate pani^hiiieat
» tli€ offence, bat the public are told, and told
f a pamphlet which bears the re?erend gentle-
MID*! name (may be his name may ha?ebeen
■r^gfod to it y but bv a pamphlet that bears that
ame) that it will be no punishment. And
oar lordships (according to the usual stjie
ith which he has affected to treat justice,
otn the beginning to the end) are told that
•a ciiBDot punisn him in that way : and
lerefbre, if that is a species of punishment
liich cannot affect him, as your lordship has
ran before told in a manner to be relied upon,
e baa made it manifest that your lordships'
idgment in that part of the punishment,

Derates nothing with respect to him person-
lly; and consequently that it will lose its
rbole force and eflScacy as with respect to that
sample which the public justice ought to hold
lit to the world.

I stated in the third place to your lordships,
ibe pillory to hare been the usual punishment
br this species of offence. I apprehend it to
bife been so in this case for abore two hun-
dred years before the time when prosecutions
fSnw rank in the Star-chamber, and to those
dt^rees which made that court pro|ierly to be
Aolisbed. The punishment of ttie pillory was
isflieted, not only during the time that such

Cmitions were rank in the Star-chamber,
it also continued to be ioOicted upon this
•art of crime, and that by the best aothority,
after the time of theaboliKhiog the Star-cham-
Wr, after the time of the Rerolution, and while
nj lord chief justice Holt sat in this court. In
Ming ofer precedents for the sake of the
oilier question, I observed that Air. Tutcbin*
(la amhor of some eminence in his day) was
oagry with Holt, the lord chief justice, for
tnasterring, as he called it, the punishment of
Ukers to authors. That was upon a personal
oooeeit which such an author as Tutchin
Uoaght himself entitled to entertain of the su-
perior disrniiy of that character all along. He
ftooght that the falsifying of weights and mea-
Mres was a more mechanical employment than
^forging of lies ; and that it was less gentle-
■■SD-Iike to rob men of their money than of
^r good name. But that is a peculiarity
■Irich belont^s to the little vanity that inspires
Ml aothor. I trust tlien^fore, when 1 speak of
lord chief jufttice Holt, and of the time in which
be lived, 1 sjieak (for all, hut particularly for
^ift) of as ^reat an authority as ever sat in
adipnent upon any case whatever. His name
I^Bs held high during his life, and has been
add io revereoce in all subsequent times. He
Jtterreil popularity, by doing that which was

• SeeTotchin's Case, vol. 14,p. 1099, where
4te pillory is stiled the punishment of bakers ;
lod for more concerning the pillory, see vol. 3,
^ 401; vol. r, p. 1209; vol. 14, p. 446;
N. 19, p. 809. .

A. D. 1777. [78f

right upon great, trying,., and imporiant ooca«
sions. He obtained popularity, becaose b#
despised all other means of aiming at it, but
that of doing right upon all occasions. From
the temper of tlraoe times, from tbeTehemenet
and deaigns of that faction that opposed him,
sir John Holt would have been reviled ; if th«
rerilers of that day bad not observed in 'tb«
greatness of bis spirit and character, that it
waa impossible to t^each him : and be naa pre-
served a name which was highly honoured
doring his life, and which will live as long aa
the £nglish eqpstitution lives. Citing biro,
therefore, in support of this as a proper punish-
ment to be inflicted upon this sort of offence, it
giving, in my appreheDsion, the greatest aa«
tbority for it.*

My lord, in prononncing an opinion DpOB
the objectiona started by the defendant, I
would desire no better, no more pointed, nor any
more applicable argument than what that great
chief justice used, when it waa contended before
him that an abuse upon government, open the
administration of several parta of government,
amounted to nothing, becaase there waa no
abuse upon any particular man. That great
chief justice said, they amounted to much
more: they are an abuse upon all men. Go-
vernment cannot exist, if the law cannot re-
strain that sort of abuse. Government cannot
exist, unless when offences of this magnitude,
and of this complexion, are presented to a court
of Juatice, the full punishment is inflicted
which the most approved times have given to
offences of much (ess denomination than theses
of much less. I am sore it cannot be shewn,
that in any one of the cases that were pnniahed
in that manner, the aggravation of any one of
those offences were any degree adequate to
those which are presented to your lordship
now. If offences were so punished then, whica
are not so punished now, they lose that expla-
nation which the wisdom of Uiose ages thought
proper to hold out to the public, aa a restraint
from such offences being committed again. It
was my duty also to consider this as with a
view to the public conviction.

I am to judge of crimes in order to the pro-
secution : your lordship is to iudffe of them
ultimately for punishment. I should have
been extremely sorry, if I had lieen induced by
an^ consideration whatever to have brought a
crime of the magnitude which this waa (of the
magnitude which this was when I first stated
it) into a court of juaticc, if I had not had it in
my contemplation also that it would meet with
an adequate restraint ; which I never thooght
would be done without atiixiog to it the jndg*
ment of the pillory. I should have been very
sorry to have brought this man here, after all

* Dr. Johnson appears not to have concur-
red in this opinion of Mr. Attorney General.
" I hope,'* aaid he, ** they did not put the dog
in the pillory for hia libel, he has too much
literature for that." Boswell's life of John-
son, vol. d, p. 378, 8vo edition.

783]

17 GEORGE III.

Proeeedingt agmnst J<An Home,

[784

the agip^vations that lie has aoper-induoed
upon the otfence itself, if I had QOl been per-
suaded that those a^gravatious woald have in-
duced thejudtj^ment of the pillory.* The pu-
nishment, liowe?er, to be inflicted for this crime
Ksts finally with voor lonlship. If the Court
is of opiniou that that judq^ent ia not to be pro-
nounced, it will be my bumble duty to submit
with the most perfect acquiescence. I have no
interest in the nusiness but as the officer of the
public. I am nothing near so good a judq^e of
the interest which the public have in the busi-
ness as your lordships sitting in this court ; but
ivhen 1^ am stating a matter to the Court for
judgment, I must state it as I feel it ; and 1
tee! it so. And if it were my province to do
more than to state it so, 1 should still continue
to think of it as I do at present.

Mr. Home* My lords, though yonr lord-
•hipe' judgment is to he pronounced upon my •
•elf, 1 shall attend to hear it with the indiflfer-
ence and curiosity of a traveller; which I was
early instructed to do in such circumstances as
these, long before I could imagine I should
ever be in them. My lords, I am a little tlie
more at a loss to address your lordships, be-
cause (and I am not ashamed to be laughed at
for my disappointment) I acknowledge that I
came this morning into the court in the full as-
aurance, that I should And less difficulty to go
out of it than I did to come in. M v lords, I had
no notion at all that evidence coufd supply the
defects of the information ; or that it would be
attempted to be so supplied by evidence. I
did not, it is true, at the time 1 objected to the
deficiencies of the information, I did not
amongst other things add evidence. 1 believe
1 am time enough now to move any thing in
arrest of judgment ; and ill am, I desire that
your lonisliips would understand me now to
object to the supplying of the defects of an in-
formution by any evidence whatever. My
lord, I apprtfhend that your lordship had di-
rected mv. Attorney General and mys«lf (I
ought, if what he has said of me be any thing
like truth, to beg his pardon for coupling my
unworthy name with his) but, my lord, I
thought that lie and 1 were directed, if we
could, to produce precedents. I own to your
lordship, I did not well understand the direc-
tion when I receiveil it; because I had laid
before you a sacred principle, with which I
was much better acquainted than with prece-
dents; and one for which I would willingly
give up all the precedents that ever exibted.

My lords, I shall no doubt be very irregular
in the order of what I shall say to your lord- '
ships ; and I should not have* said a word, if '
there were not in Mr. Attorney Generars ha- ;
rangue some things that might easily stir a '
roan to anger, if he was not as little susceptible |
of it as I am. My lords, 1 feel not the least '

* See in the case of Patrick Hurlv, vol. U, [
p. 446, a counsel insisting that the pillory is the '
poiuihownl for a cheat.

auger at any thing that has paased. The gen-
tleman ou the trial has stripped me of common
sense ; but be allowed me a sort of understand-
ing. Mv lords, be shifted his ground in bis
reply. He first, out of kindness and compli-
ment to me, supposed what I had written to be
beneath common sense: my lonit, lie after-
wards found it proper to make it hcyond con-
mon sense. At first I was a fool : at last I was
a madman. My lonls, at first he thought it~
(I forget his expression) but he thought it can-
dour (I think he said) to the names of persons
alluded to, though distantly, to suppose that
what I had written was falae. To save otbeis
from some scandal of imprudence or impro-
priety, he thought it candour to impute false-
hood to me. My lords, when that was proved
to be true, he only 8ai«l, that he did not mend
the matter : indeed, whichever side of the case
I took, nothing could mend the matter.

It is not my business^ my lord, to take the
smallest notice of what fell from your locd-
ship ; nor shall I mention a number of things,
which 1 might justly be permitted to mentioo,
of wilful and gross misrepresentations of tfas
evidence upon the trial: I should not have
mentioned it at all ; but Mr. Attorney Geoenl
has hinted, though not specified, misrepreses-
tations by me of the proceedings of the trial.

My lords, he has endeavoured to alarm sie
with monstrous fines, with long imprisonroesi,
with infamous punishment. My lords, infanv
is as little acquainted with my name as with
that gentleman's or with your lordships. I
feel no apprehensions from the pillory. I do
feel some little pain that a gentleman, taking
advantage of my situation, should say and offer
those things, unfounded in appearances erca
of truth, airainst me, which neither he oor
any man like him dare to insinuate in id/
other station but this.

lie has attempted likewise to insinuate, my
lords, a si)ecies of robbery. When hedidio
he was guilty of falsehood. EI e said, that my
\fitncss did not prove that the 60/. was paid
into the bankers. My lords, he literally
proved it.

My lords, he represents me as speaking tbe
lant;uage of — ** if you dure to punish me;"-"
and he says, '* it is a lant;iiage aildressed to the
lowest of the mob." Indeed I think so too:
but it is his o««n language, not mine.

My lords, he has dwelt upon my occasiosfi
my desperate situation, my want of character
and fortune. My lords, it is my misfortune
that from niy cradle I have had as etfemintti
an education and cure and course of life as Mr*
Attorney General. It is my misfortune tlitt
there was not a greater want of fortune : so^
as for my occasions, my means liave aiiraV'
been beyond them. I should rather, my lor&
if I was speaking in extenuation or to mitigsto
your punishment, I should rather close in vilk
Mr. Attorney General, and acknowledge my-
self that desperate, helpless w retch that be M
represented me : perhaps it would be the no^
effectual motive to your lonlsbipa* ooDptMU^

,.

-'•

•■
•J

«*•
' ■J
1

• I

T83]

Jul a LiheL

A.D. 1777.

[786

My lords, I nercr in my life solicited a favour :
I nertr detiire to meet with compa8!iiou.

My lordjf, be has talked to your lordships of
my patrons. I have had in my life, aud very

wiih vfhom f can think, that I know of.
There is no Kody of men with whom I am cou-
nectefl. Tlitre is no man or men from whom
I expect help, or assistance, or friendMliip, of

early in my life, the {Greatest of patrons; aye! \ any kind, beyond that which my principles or
with all their power, greater ttian any that now j services may deserve from them individually,
hear me. Aly lords, I renounced my patrons, Private friendships I have, like other men; but

liecause I would not renounce my principles ;
repeateilly, over and over a^ain, of diflVrent de*
icriplJons, and in different situations. My
lords, I am proud, l>ecause I am insulted ; or
else I certainly should not have held any of
this laniB^uage.
My lords, Mr. Attorney General through a

'they are very few: honevi-r, that is recom*
pensed to me, for they are very viorthy.

My lords, JVlr. Attorney General Ikas* saul,
that I represented imprisonment as no kind of
inconvenience to me. As no kind of if>con-
veniencc, niiy lords, will not certainly be true ;
because the great luxury of my life in a very

>lameful carelessness has told you a stor^' of small but a very c'.<an cottage: ytt, though
I theological, polemical dispute l>etween my> i imprisonment will Im* so far inconvenient to me,
self and a parishioner. 1 can easily conceive ' the cause of it will make it not painful.

that Ue let himself fall into that mistake for the ;
take of drauing a smile fiom your lordships
ind the court upon the reverend gentleman.
But in this, like the rest, my lords, there is not
I syllable, not the smallest foundation of truth.
I never had a theological, polemical dispute.
My lords, I am free to acknowledge, that no
theological disptites that ever 1 read, and 1
bave endeavoured to read all that ever happen-
ed, none of them ever interested me in the
manner that the present disputes do interest
me. My lords, 1 was not made to be a mar-
tyr.* 1 have opinions of my on n ; but 1 never
iotended to sufl'cr for them at the stake.

My lords, he has endeavoured to insinuate
that all that 1 wrote, and all that 1 said, was
for the sake of a paradeful triumph over jus-
tice: and he has talked again and again of the
mob. My lords, the mob have conferred no
greater favours upon me than upon Mr. Attor-
ney General. I have been repeatedly followed
by very numerous mol>s in onlnr to destroy me.
Single and alone, for a i^rcat length of way ;
not ouci*, or twice, or tinee time«, but four and
f^'99 times ; two or three thousand at my heels.
I am seiiiiib!e of the ridicule of the situation,
even whilst 1 mention it. These are the only
frvoure that 1 have ever received from the
niob; these arc the only favours that 1 have
tver soliciteil ; and I protest to your lordships 1
bad much rather hear the mob hiss tiian hal-
k)s : for the latter would give me the head-ach,
tbe first gives me no pain. My lord, I have
beard of those who have expressed more wishes
ftr popularity than ever I felt. I have heard
it iiid, and I think it was in this court, that
tbey ** would have popularity : but it should
k that popularity which follows, not that
whkh is sought after. "f My lords, I am

Cud enough to despise them both. If popu-
ty khould offer itself to me, 1 would speedily
tike care to kick it away.

Ily lords, as for ambition, and bodies of
men. and parties, aU'I societies, there is nothing
*r It in tlie case. There is no body of men,

* But tee his Letter to Junius, July 13,
ITTl.

t See lord Mansfie1d*8 judgment io Wilket^f
«»».vo!. 10, p. 1113.

VOL. XX.

My lords, 1 find that not only I have a sort
of understanding very differait from that of '
Mr. Attorney General, but my notions of law,
and my notions of humanity, are equally dif-
ferent from his. Mv lords, between the time
that 1 had last the honour of apf>earing before
you and the present time, it happens very unfor-
tunately for Mr. Attorney General that he has
proved^ that not only my notions of law and
iJeceucy, but my notions of propriety and hu-
manity, are widely different from his : and I
mention it, my lords, because it goes immedi-
ately to the doctrine now attempted to be esta*
blisned. Mr. Attorney General has heard a
person, as great as himself, between that time .
and tliis, justify the legality, the propriety, the
humanity of tlie tomahawk and the scalpinip^
knife. Between the last time 1 appeared ticre
and this time, these have been the sorts of kiag*H
troops justified, by a high ofiicer of the law,*
to be employed, as legal, proper, mild, and hu-
mane.

My lords, Mr. Attorney General has said, ^
that I declared upon the trial that 1 had a cer-
tain employment which made it necessary for
me to be confined as long as \onr lordships
sluMild or would confine me. Tiiat is not (rue.
My lurds, I did say that I had an emplo3'meot,
had something to do, that would confine me
to my room longer than your lordships would
confine me. 1 believe I said mpre-»l neither
intended when I said it to affront you, nor
will attempt at this time to appease you — I
said longer than your lordships dare to coufine
tne; those were the words: and I said it, be-
cause I did belieie and do still believe that
vonr lordships dare not wilfully i\o injn.stice.
My lords, as for that certain einpbiy meat, 1 did
not say it was necessary. It is an employ-
ment of amusement merely ; an employment
that 1 meant to make public ; but not for the
sake of gain or praise. My lords, when first 1
began my life, I was encouraged to worthy
and to virtuous actions by the temptation of
praise : I have long since learned, my lonis,
to be able to do those actions which 1 think
virtuous, in despite of shame.

My lords, Mr. Attorney General has done

* See New Pari. Ilist. vol. li.

3IZ

yp

787]

17 GEORGE III.

Proceedings against John Hume,

[788

what I hare before heard attempted to be done
with very gfreat sorrow : he has attempted to
^instate the Star Chamber. The fault he finds
with it is only its rankoess, — '* before the pro-
■ecutions i^rew so rank in the Star Chamber,
and which rankness caused it to be abohshed."
— I don't recollect the words of that act by
which it wais abolished ; but I am sure that its
rankness alone is not the reason given. If
the i^ntleman would lend me his memory, I
would then repeat them — none of the powers,
nor any like them (your lordships know better
the wonis, I don't recollect the words) but no-
thing like them was ever to be put in use again
in that or in any other court, as well as I can
remember.

Mr. Attorney General has talked of the per-
aonal conceit of Tutchin concerning authors.
I thought myself, till a strong zeal made roe
met otherwise, as little likely to become an
•utlior as any of those gentlemen who hear
me. I have never been a contractor ifith any
news-papers; he knows I have not. If I de-
aired the printer of the Public AdvertiscT to
give me up always to justice, my lords, I can-
not easily conceive bow Mr, Attorney General
could find anything to justify his oratory upon
that subject. Is that a defiance of a court of
justice ^ Is that flying in the face of the justice
of the country ? To be willing to abide its sen-
tence ; not to withdraw myself from its cen-
sure : not to wish even to avoid an v enquiry
into my conduct ; is that to be that bold-taced
audacious man that defies the justice of his
country? My lords, if it is, 1 can only again
deplore that a gentleman, who must have great
understanding, and great talents and abilities,
from the office which he holds, that the under-
standing of that gentleman should be so very
different from mine.

My lords, I have already appeared in tliis
situation often enough ; and if I had, as he ima-
gines I have, any luxury or pleasure in holding
myself furth in public ; if I had, it would long
before this have been satisfied. — There are
many other things which I might say to your
lordships ; but as I trust, and fully trust, that
I shall still find a remedy, my lords, against
the present decision, 1 sha!l forbear saying one
syllable in extenuation of what the Attorney
General has lieen pleased to charge inc uitli';
and leave your lordships to pronounce your
judgment without the least consideration of me,
without the smallest desire that you should
abate a hair from what you think necessary
for the justice of my country. I shall leave
it entirely to your lordships' discretion.

Mr. Justice Aston, John Home, clerk, you
stand convicted, upon au information filed
•jrainstyou by his majesty's attorney -gem ral,
of writing and publishing, and causing to be
printed and pub]ishe<l, a false, wicked, and sedi-
tious libel, of and concerning his mnjpsty's go-
vernment and the employment of bis troojrs.
The libel has been openly read io court from
the record ; and, upon the report of his lord-
ship who tried this informttioDi it appears tliat,

upon your own cross-examination of one of the
witnesses, you gloried in the publicstioo of it ;
that you avowed you did not desire to be
screened ; and that you avowed yourself the
author of it. Since that indeed, in this court,
you attempted to gloss over parts of this libel,
and to confine its tendency to a possible private
charge upon the king's troops, and not god-
rerning his majesty's government ; to treat the
word * troops'^as being indeterminate in its signi-
fication, and not carrying with it the construc-
tion which the information avers, and vvbich
the jury have found, of its *' concerning the
king's government and the employ meot of
those troops by his authority." You have said
'very truly that evidence is not to supply any
defect in an information. There is no detect
in the information : the information sets forth
the libel at large ; and the information charges
that libd to be '* of and concerning hi« ma-
jesty's governnaent," as I before -mentioned.
Up(«i that the court has now decided agreeably
to the finding of the jury ; and no man can
really mistake the malicious meaning and in-
sinuation of it. ItijiE libel which contains t
most audacious insult upon his majesty's ad-
ministration and government, and the conduct
of his loyal troops employed in America. It
treats those disaffected and traitorous persoM
who have been in arms and in open rebellioD
against his majesty, as faithful subjects— fiith-
ful to the character of Englishmen : and it
falsely and seditiously asserts, that for that
reason only they were inhumanly murdered
by his majesty's troops at Lexington and Con-
cord. By this same libel subscriptions too are
proposed and promoted for the families of tlunt
very rebels who fell in that cause, traitorooslj
fighting against the troops of their hiwfnl !iOve-
reign. This is the li*;!)! iu which this i.bel mw^
appear to every man of a sound and impartial
understanding ; this is the plain and the unar-
tificial sense of it. The contents of tliis libel
have been too effectually scatt^'reil and di^
persed by your means, as charge'l in the several
counts of the informution, and they have been
inserted in divers and different neu-9papers>
The contents are too vi-ell known, and 1 trust
abhorred, to need any repetition fVotn me, fu^
the sake of observin;<f farther upon their ma* j
hce, sedition, and falsehood. The cuurt ba^^
considered of the punishment fit to bo inflicted
upon you for this offence : and the sentence of

the court is, ^That you do pay a fine to thi

king of 200/., that you be imprisoned for tbe
space of twelve months, and until that fine bs
paid ; and that upon the determination uf votff
imprisonment, you do find sureties for yonr
good behaviour for three years, yourself •■
400/. and two sureties in 200/. each.

!llr. Home, My lord, I am not at all awar*
of \i hat is meant by finding sureties fur tbf
good behaviour for three years. It is that paf^ ]
of the sentence that perhaps I shall find mu^ j
difficulty to comply with, because I dou't uP'
derstaud it. If I am not irregular in entresl' \
ing vour lordship to explain it to me:— you^
, tordsuii^i, I suppose, would cbusc to hsteyvtf

a^

Jbr a LibeL

*s plainly understood, and I know not

re of this siirftysbip.

Mamfield. It is a common addition.

lornc. And, it may be, a common

».

ust. Aston. Not to repeat ofTeDces of

lornc. or this sort?
Mansfield. Any misdemeanour,
lust. Axton, iVbatever sball be con-
ad behaviour.

iarne. If your lordships would imprison
liese three years, I should be safer ; be-
can*t foresee, but that the mostmeritori-
on of my life may be construed to be of
e nature.

Mansfield, You must be tried by a
your country, and be convicted. You
t is a most constant addition. You
lat yourself very well. — Where are the
I?

A. D. 1777.

f790

'everse this judj^uient, Mr. Home

a writ of error iu parliameut, and on
ilf it was ai'^ued by Mr. Lee and Mr.
^, that it is n principle in the law of
i, that, ill criminal prosecutions, the in-
in or indictuieut must contain in itself
n and explicit charge of the offence in-
o be imputed to the defendant, and no
[' certainty in the char^^e c«n be helfied
ied by any proof, and still less by pre-
II or intendment, either in the jury
e the vtnlict, or in the court which pro-
i judtfmeiit upon it. It is equally true,

l»euul charges ou(;ht to be taken most
j|y for the subject, in every staffe of
lecution ; so that if it appears doubtful
* the fact alleged in the information or
t>nt l>e necessarily criminal, or may

be innocent, the prosecution shall fail ;
iil^h ihejui'v fmd a (general verdict, such
iiutflit not to 1)0 construed by tiie court
any tiiinif beyond the plain and certain
jns in tile indictment or information. In
e the jury had found that the king's
nientitined in the advertisement, meant
tjesty's troops ;' fur this, and the pnb-

by the deft ndunt, were fiicts charged,
frefore iiiiuht bf properly said to have
und. If it should b? admitted, which
t found, that the troops meant bis ma-
irmy in Amcricii, there was nothing in
rmatioo that extended the imputation
f trtMjpsi to his majesty or his mitiiKters,
t was in the iiitroductorv words, which
n resorted to as charging the advtTtise-
» be «% ritten, * of and concerning his ma-
^^overntnent, and ihf employment of his
If the jury were to be uudersto«id to
lund it to be so written, (though trom
ipany that passage kept with the w<»rd8
I'icked, malicious, scandalous, seditious,'
t uMire properly be considered as a mat^
ilerence than of charge,) it would not of
y ffdlow, that the employment of the
rilb which Mr, Home expressed his di«-

satisfaction, was an emplo3'ment by his majes-
ty, or by any person in authority under him.
It was equally consistent with a 8up|>ositio0|
that the troops in the instance comptaiued of
employed themselves in acting without, or even
contrary to the orders of those to whose orders
they ought to have conformed. Nor did it
follow, that because the advertisement was
found to have been written concerning his ma-
jesty's government, that it therefore necessarily
import^ an intention to arraign that govern-
ment. Armies are properly considered as among
the instruments of government, and are pro-
perly employed, whenever they are so employ-
ed in the defence of a just government. Who*
ever writes therefore concerning his majesty's
armies, may be said to write concerning his
majesty's government. But the suposed libel
carried no imputation against his majesty, or
bis government ; uuless it should be under-
stood to mean, that the oiisbehaviour which it
was supposed to impute to the troops was in an
instance wherein they were acting in due obe-
dience to legal orders, under an authority de-
rived from his majesty; but this was no
where charged, and consequently not found.
In order to have supported the information ia
the manner in which probably the prosecutor
wished to have it understood, he ought to have
shewn by proper averments, that thel'e was at
the time a rebellion existing in America; that
the troo|»s were sent thither to suppress it ; that
they were iu the act of exerting themselves,
in obedience to proper orders, towards this ob-
ject ; and that though the loss of lives was
among the consequences of that exertion, it waa
no murder, nor in any sense a violation of law,
but, on the contrary, perfectly justified by the
occasion. Why averments to this effect were
not to be found in the record, it was notdifficull
to conjecture, to those at least who understand
that avermeuts must be proved ; and it might
not be thought certain that a jury would be
found who would assent to the trutn of these
pnipositions. It would be no answer to say
that all this was notorious ; or that at the trial
it was proved ; for if it were so, ivbich was
by no means admitted, it was perfectly imma-
terial, if the principle be, as it was conceived to
be, that the judges are to receive or use no
other knowletlge of the facfs essential to con-
stitute a criminal charge, but what they collect
from the record.

On the other side it was contended by the
Atttirni y Cjentral Thurlow and Solicitor Gene-
ral Wedderhurn, that the crime of a libel con*
sistK in opprobrious words or signs, written,
made, exhiuited, or published, concerning some
person, or other subject, which it is criminal
so to revile. The accusation mu>t therefore
state the opprobrious words or signs, and
they must lie applied to the person or thing
8up|»osed to be reviled : but no technical form
of words is necessary for that purpose. If the
natural and apparent sense ol the words them*
selves be onprobrious, and reqoire no other
medium to nx suck meaniDg apon iliemi no

•V

791]

17 GEORGE HI.

ProccctliHgs agaimt John Home,

[Tl'a

innuendo or averment to stip[>ort it can be ne-
cessary to raise an ajtjiarent ineaningf. If the
application of sucli o(iproI>nou9 wonts be ex-
pressly niiide in tbe plirase of the libel, no in-
tiui'uUo, or averment to su|)porl it, can be want-
in|^ to raise an expresJi application. It is a well
kooivn rule, that judi^es are to understand a
libel as others do, wiihi^ut straining; to Hud a
loop-h-'le to palliate the offence, which in
some measure would be to encourag^e scandal.
It vinnld he a riiliculous absurdity to say, that
a ivritintv*, understood by the meanest capacity,
cannot p(»ssibly be understood by a judg^e and
jury ; therefore judges will not resqrt to every
possible construction, only to avoid the natural
one; much less give a ditferent sense to tbe
words, by supposing circumstances which, if
they exist, shouhl be proved. The words com-
plained of conveyed, in their natural and appa-
rent meaning, a s^roas reflection, the imputation
of an heinous and hateful crime, upon the em-

Idoy ment of the national force, and consequent-
y upon his majesty's government, of which
the employment of that force is an important
part. These words, * the king's troops,' in a
common and obvious seose, mean that national
force which the law takes notice of and autho-
rises. The literal meanincr of the words was
confirmed by the context, and it Was impossible
to believe that any Enfiflish reader had put ano-
ther interpretation upon them, much less had
any such reader mistaken them to meaii flocks
or companies of strollers, &c. as the objection
. idly supported. The application of these op-
probrious words to the king's government, and
file employment of his troops, not only appear-
ed in the phrase uf the libel itself, but was ex-
pressly charged in the information, and proved
even by the defendant's witnesses, and found
by the jury ; that matter therefore was also con-
rlutied. The averments 6ii!;i;esied in the
defendant's «r<:umeat were bv no means ne-
ecitsury to constitute a state of this crime ; for
.supposing there had been no rebellion, or troops
€ mployed to Kup[ire>s it. or enc^agenient by the
kind's troops, or slaugliur made of the rebels,
the uuJt of thi^ cahunnv would not l.uve been
dimmislied by its total viunt of fouiiduiion or
colour of truth.

After he.iri:ijf counsel on this writ of ciror,
the following (Question was put to the Jikil'cn;
*^ W heilier the writing contained in the infor-
mation i<i, in point of law, sufKrienily chart^ed
to be a liht I u|>on his majesty's L^ovcrnnient:'" —
(Bruwn\ Cuics in Pitrliamenty vol, 4, p» tS7 ).)

And, on Monday, ^lay 11, 1778,

Lord Chief- Justice DeGrey delivered the
unanimous opinion of all the judges in the
afiirmative, and gave the reasons as follow :
* ]\ly hird**. I have conferred with the Lord
Chief Buron. and the rest of my brethren the
judges, upon tlie question Mhich your lord-
ships have propoundetl to us ; and 1 am de-
putfitl to Jdirer their opinion to 3 our lordships
^ HjK>a it» ' ^

The question is, ' Whether the writ in? dt-
' scribed in the information is sufficiently

* chargefl to make it a libel upon bis majesty's

* government?'

Jiy the words ' sufficiently charged' I un-
derstanil to l>e meant, U'hei her it is charged
with suHicient certainty?* But, thou^rh the
law requires certainly, we have no precise idea
of the si<:;nificatinn of the word ; w hich is u
indefinite in itself, as any wonl that can he
used. Lord Coke, speaking of it, represents it
thus [Co. Lilt. 330, a. & 5 Co. 121] : • Tliere

* are three kinds of certainties: certainty to a

* certain intent in general ; certainty to actim-

* mon intent ; and certainty to a certain intenl
' in every particular.' This last is n jecled in
ail cases, as partaking of too much subtlety.
The seconri is sufficient iu defence : the first if
reqnired in a charge or accusation.

Pet haps this account of it does not convey a
much clearer idea ; but 1 appreheud it will
becocne intelligible, by considering the grountid
of the distinctions, taken in the present case,
upon the certainty reciuired in a charge.

The charge must contain such a dcscriptioB
of the crime, that the defendant may fcooir
what crime it is which he is called upon to ao-
swer ; that the jury may appear to be war-
ranted in their conclusion of * guilty' or * not

* guilty' upon the premises delivered to them;
and that the Court may see such a definite
crime, that they may apply the punishineoc
which the law prescribes.

This, I take to be what is meant by tbe dif-
ferent degrees of certainty mentioned in tbe
books : and it consists of two parts ; tbe matter
to be charged, and the manner of charginnf it.

As to the matter to be charged, whatefer
circumstances are necessary to constitute the
crime imputed, must lie set out ; and all be-
yond are surplusage. And therefore, in tbe
instance of the prosecution for peijury which
has been cited, it was necessary to set out tbe
oath, as an oath taken in a judicial proceeding,
and b< fore proper person**, in order to see, whe-
ther it was an oath which the Court had juris-
diction to administer. In the prosecution of a
constable for not sening the office [5 Mod. 96],
it is necessary to set out the mode of his elec-
tion ; because, if he is not legally elected, he
cannot be guilty of a ciimc in not servinif the
oflice. Where the circumstances go tocoo-
siitute .1 crime they must be set out : where
the rriinc is a crime independently of such cir-
cumstances, they may n^fgravate, but do pot
contribute to make the ofTi nee. j

To apply these prim iples to the case of a |
libel : it may happen, that a uritintr may bes^
expressed, und in sueh clear and luiambignoot
wonN-, as that it mav amouir. of itself to aliiieL
In such a case, the Court wants no circom*
stances to make it clearer than it is of itfHft |
and therefore, all foreign circumstances intrtf" 1

* Respecting certainty, see the "£«■'•*•• *
^iirrn .\dvertisement, part 2, ch. 6, aod ft N^ ,
to Kuiiomus, i)tilog«ie ^^ p. 46.

i

- 1

5)3]

Jitr a I.ihel.

A. D. 1777.

rw*

ucetl upOA the recnnl irniiUI be only iii»tter of
jperproijration. Dut, if the terms ul' the writ-
iii are fj^encriil, or ironicnl, or Hpokeii by way
faMitsiun or retVretice ; ahhou^jrh every man

hu rcniU such a writing', may put the ranie
onslniriion upon it, it is by uiiilerstQn(lin;r
jmc'liiut; not expresspd iu dirifct woriU ; and

b^Miio a matter of crime, ami the party liuMe
I be punished lor it, tinre wants sometiiincf
iDie. Ii ou^^ht to receife a judicial ^nse,
helhcr the application is just : and the fact,
: the nature of the fact, on which iliat de-
L*nds, is to be determined by a jury. But a
iry cannot take cognizance of it, unless it ap-
rara upon the record ; wliich it caunot do
ithout an averment.

Thus much is sufficient to be said, in rej^ard
I the matter that is necessary to be averred.

Secondly, as to the manner of makinir the
rernient : there are cases, where a liirectand
osiii\e averment is neces>ary to be made in
|ieci lie terms ; as, where the law has bflixed
nd a{tpro|>riated techuical terms to ilescribe a
rime ; as in murder, burglary, and others.
I is likewise true, that in all cases, those facts
rbich are descriptive of the crime, must be
Dtroduced upou the record by averments, in
ppo»ilion to ar^rument and inference, lu (he
.'■eof a libel which does not in itself contain
be crime, without some extrinsic aid, it is
lecessary that itKhould be put upon the record,
ly way of introduction, if it is new matter; or
>v way of innuendo, if it is only matter of ex-
naoation. For an innuendo means nothing
Dore than tlie words, * id e^t,' ' scilicet/ or

meaninnTi* or * aforesaid,' as cxplanatorv of
I fubjpct matter sufficiently expresseil before ;
ti, such a one, meaning the defendant, or such
k subject, meaning the subject in question.
But as an innuendo is only used as a word of
explanation, it cannot extend the sense of the
npn-s^ii»ns in tlie libel hf >ond iheir own mean-
ing, unless Komctiiing is put upon the record
Tur it to explain. As in an action upon the ca«e
iflftiiisi a man for saying of another, *■ He has

burnt my barn,' [4 Co. Harham*s case], the
[plaintiff cannot xUmvc, by way o( innuendo, say,
■ne-jntni; ' hi'i barn tiill (if corn ;' because, that
*Dot an explanaiion of •vbal was said before,
>ut8!i addition to it. Hut if in the introduction
t hftd lieen averred, that the defendant had a
^ro full of corn, and thit in a discourse about
Iwb'jrii, the defend::i>t hail spoken the words.
'luri^ed in ilie hbcl of the plaintiflT; an in-
^uoudo of -1^ beini; the barn full of corn woubl
live been L'^od : f^r by couplint; the innuendo
Q the libel with liie i .iroductory averment,

liisbarn full of corn,' it would have made it
^mpltle.

And 1 conct ive, that this kind of extrinsic
^rr may Ih' introduced UfMin the record,
•ither by dire*.', averment, or by recitals, or by
fcoersl inference ; and that such introductory
"^tprs and explanatory innuendoes so made
^ appeitr upon the record do all amount to
^vfieii-nt •venneots.

' Au innuendo is au afermtiit, that such • oae.

meinf! such a particr.lar person ; or, that such
a thing, means sueli a particular thingf : and
when coupled with the introductory matter, it
is an averment of the whole connecied propo-
sition, by which the cognizance of the charge
will be bubinitied to the jury, and the crime
appear to tIil' Court.

'I'he libel in the present case says, * That the
' siibhcriplion proposed to be ent'red into was
' for the relirf of the widows, orphans, nnd aged
' parents of our bebived. American subjectF,

* who, faithful to tbecharnctei of Knglishiueo^
' and preferring death to slavery, were for that
' reason only inhnmaidy murdered by the
'king's troops.' It is not necessary to con-
sider, whether this lifiel comes within the de-
scription of a libel, which constitutes a crime
of itself, without any assiatance of other cir-
cumstances ; or what our opinious upon that
question might he ; because, we are all of opi-
nion, tliat there is sufficient matter expressed
with sufficient certainty to constitute tlie crime.'

But, two questions have been made upon the
introductory part of the information : First,
Whether, the interior subsequent matter being
introduced by the words * of and concerning

* his majesty's government, and the employ*
ment of his troops.' these words amount to a

sufficient averment to put it lastly upon the
record ? And secondly. Whether, admitting it
to be lej^ally put upon the leeonl, the sense of
it must be understood to be a libel upon bis
majesty's government ?

And first, ' Whether it is legally put upon
the record in point of formf — ^It is put upon
the record by these words : — ' That the de*

* tendant wrote ami published such a libel, of
' and concerning his majesty's government and
' the employment of bis troops.' This is an
averment; for the fact is, that ' he wrote and

* published the libel ;' and the circumstance
connected with the fact, and which therefore
makes a part of it, is, that * he wrote and pub-

* lished the naper or libel, of and concerning

* bis majesty's government and the em|>lov*

* ment of his troops.' If the jary, upon the
defence set up, had found, that ibe libel ^vas
not published relative to the king's government,
or the employment of his troops, the informa-
tion was not proved : for it contains an entire
proposition. And if it had appeared, that the
paper related to a voluntary act of the troopa .
only, and not to an employment of them by ,
government, the information would be false :
liecuuse the prosecutor would have failed in the
proof of the pro|M>fcitioii, that it was written,

' of and concerning the king's government and

* the employment of his troops.

This is no new doctrine: the cases cited at
the bar shew it. In Tiitchin's case,* one part
of the libel was this : ^ The mismanagements

* of the navy, have been a greater tax upon

* the merchants, than the duties raised by go-

* vernment.' It might have been said there.
What nary ? Whose navy P was it the navy of

« See it in thU Collection, vol. 14| p. 109«.

ft

793]

17 GEOllGE III.

Proeeedingi against John Home,

[796

£iil(Uii<1, or ilid it mean only tlio merchant
•li^)9 ? The iufiinnation char^red, that tliu de-
fendant liad written u bcandaious and seditious
.libel; in wliicli tlie inf'uruiaiion stated in the
introductory part, ' of and conceruinj^ the royal

* navy of this kini;dntn and liie {HfoTernment of

* thefiaid nn\y, it is written so and so.' When
tlie inforuKiiion came, in stating; the libel, to the
uord * navy,' by an innuendo, it explains it
thus: * meaning the royal navy of this king-
^onn ;' which, being; coupled with the aver-
Ipeut in the introductory part of it, made the
flense and the charge complete. — A^aiu, in ano-
ther part of the same information for another
libel, one part of the libel was thus: < There is
' another plot against you :' * and afterwards,
< it is a plot preparatory to your trial.' What
trial ? The introductory part of the informa-
tiOD charged, that this libel was written, ' of
f and <oiicerning the defendant, and a prosecu-
^tidb to be had against him for divers aeditious

* libels by him, before that time, composed and

* published.' The information ai'terwarda ex-
plains ' you' thus ; meaning * the defendant.'
This, connected with the averment in the intro-
ductory part, was a sufficient explanation of the
charge. The defendant was found guilty of
the several libels in the information. He moved
ID arrest of judgment ; but not upon the ground
f>f the insufficiency of the averments: for it
was sufficiently understood, that * of and cod-

* cerning the royal navy, &cc.' was good with-
out any other additional averments. In the
case of Rex v. Matthows,* which was an in-
dictment upon Stat. 6 Ann. c. 7, the words of
the libel were these ; * From the solemnity of

* the Chevalier's birth, and if hereditary right

* be any recommendation, he has that to plead

* in his favour.* It was there said. What Che-
valier? Who is he? What recommendation?
And to what thing? — In the introductory part,
the information charged the libel to have liecn
.written, ' of and concerning the Pretender,'
and * of and concerning his right to the crown

* of Great Britain.^ And it was hehl, that the
innuendoes in the body of the libel, explaining
the wonis * Chevalier, &c.' to mean the Pre-
tender and his hereditary right to the croivn of
Great Hntain, when connected with the aver-
ments in the introductory part, of its l>eing
written, ' of and concerniug the Pretender and

* bis right to the crown of Great Britain,' were
a sufficient explanation to make good the
charge.

In the case of Rex versus Alderton, [Sayer's
Reports, 280], tlie libel was an advertise-
ment, reciiintf ceitain orders made for col-
lecting money on account of the distemper
aiiion^bt the horned cattle, advertised by the
ci«rk of ihe peace for the county (»f Sutfolk ;
and it charged, that by these orders the money
collected hud been improjierly applied. The
information charged tliis to be a libel on the
justice's of Suflfolk. In the bo<ly of the libel, it
was not said, ' by order of the justices,' nor did

* Set it m this Collectioui toJ. 15| p. 1389;

the information in the introductory part say,
that it was a libel * of and concerning the jus-
tices of Snffi)lk.' But when the informatioa
came to slate any of the orders in the adver-
tisement, it addi d this innuendn, * meaning
' an order of the justices of peace for the county
'of Suffolk.' But these innuendoes could not
supply the want of' an averment in the intro-
ductory part, of its being written of and con-
cerning the justices ; because they were not
explanatory of, but in addition to, the former
matter; and the Court were of opinion, that
the information having omitted the words, * of

* and concerning the justices' in the introduc-
tory part, such omission was fatal : and judg-
ment was accordingly arrested.

From these cases it is clear, that the wordi
' of and concerning' are a sufficient introdoc-
tion of the new matter. And therefore in the
present case, it is, in point of form, a sufficient
averment upon the record, that the paper Ntf
written ' of and concerning the king's govem-
' ment'

But secondly, it has been argued u|ioo the
further charge respecting the troops, tbtt it
duos not im|>oit that these troops were so em-
ployed by act of government. And therefore,
though it should 1^ held to hiive been wiitten,
' of and concerniug the king's goTcmnent,'
yet ' it does not appear to be so, relatire to the

* act of the troops.' It has been further argued,
that in giving their opinion upon this point,

* The judges can take no knowledge of idj

* thing that. is said or written, but what they

* can collect from the record ;' and likewise,

* That every accusation taken from the record

* must be plain and clear, and is not to be
' strained by any forced meaning or constroo*
' tion.' But, as) the crime of a libel consists in
conveying and impressing injurious reflectiooi
upon the minds of the subject ; if the writiug
is so understooil, by all who read it, the injury
is done by the publication of these injurious re
flections, befoie the matter comes to the jury
and to the Court. And if courts of justice vreie
bound by law to study for any one possible
or supposahle case or sense, in which the vionli
used might he innocent, such a singularitv uf
understanding might screen an offender troin
punishment, but it could not rccal the wordii
or remedy the injury. It would be strange to
say, and more so tu give out as the law of fbe
land, that a man may be allowed to defame is
one sense, and to defend himself by another.
Such a doctrine would indeed be pregnant with
the ' nimia subtiiitas,' which my lord Coke so
justly rejMobates.

The true rule to go by, is laid down by nj
lord King in the case nt lUx versus Matthewi^
which is this: * That tlie court and jury roaft
' understand the record as the rest of mankind
do.'

This being the rule, and the accu8atkMi-iUci>
as I liave before stated, it remains to beieea
only what the wonIs in the present case aifc
They are these: •That the defeudapt, of all
t GOBcemiiig the king's govenunoit aid d#

"

cT i ^^

V

4

)7J

for a Libel.

.employment of his troops/ said, ' that inlio-
:eut tubjvcts hail been inhumanly murdered
ly the kind's troops, only for preferrinsf death
u »la?ery/ Do these words import in their
itural and obvious sense, that the king's troops
pre eiiiployetl by the act of* j^overnment, in-
imiinly to murder the kin<^'s innocent sub-
lets ?—^Thcre can be no doubt but that the
ntr'8 govcrntneut comprehends all the exe-
ilive power of the state, both civil and mili-
ry ; that he employs all the national force,
id that his troops are the instruments with
hich pait of the executive government is to
! c;arrit.il on. The introductory part of this
formal ion charjres, that the subject of the
riliut; in the present case was, ' The troops,
mil the king^s troops, and the business they
liad done.*

It has been tru!y said, that the king's troops
ay, like othci' men, act as individuals: but
cy can be employed as troops by the act of
jvernment only. If the averment therefore
nonnfs to this, that, in the discourse which
as held, the aords were said * of and concern-
in;i( the king's government *,' the natural im-
irtofthcin, wiihout any forced or strained
leaning, appears to us to be this ; I am speak-
ig of the king's administration of his gorem-
lent relative to his troops, and 1 say, * that our
fellow subjects, faithful to the character of
Englishmen, and preferring death to slavery
ware for that reason only inhumanly mur-
dered by tlie king's order ; or the orders of
his officers.' The motive imputed tends to
gfgravate the inhnmanity of the act, and con-
■quently, of the imputation itself: because it
rraigns the government of a breach of public
list, in emphiying the means of the defence
r the subject in the destruction of the lives of
Mse who are faithful and innocent.

As to any other circumstances not stated in
le information ; if those which are stated, do
r themselves constitute an offence, the rest
apposed by the defendant, whether trne or
the, would have been only matter of aggrava-
OD, and not any ingredient essential to the
onstitution of the crime, and therefore not ne-
ntary to be averred by the record.

Upon the whole of the case therefore, we are
iiauimousl|^ of opinion, that the record con-
dot * all facts and circumstances necessary
to warrant the conclusion of the jury. And
that it likewise contains all facts and circiim-
stances necessary for the information of the
Court to give their judgment upon the occa-
•ioD.*

Whereupon it was ordered and adjudged,
Cliat the judgment, given in the court of King's-
tBcb for the king, be affirmed, and the record
Mtted, &c.— CCowper* licjforlSy p. 682.^

htbeeonrse of the debate Joly 17, 1819,
}iyaiiug lord Holland's bills relative to in-
%BidoM ex officioy (see New Pari. Deb. vol.
^4.^e87| 1009, €l teg.) lord HoUand bif-

I 1.4

A. D. 1777. [798

ing, in support of his argument, rolied on the
authority of Mr. Justice Blackstuue's Com-
mentaries, it appears that lord Ellenborough
mixed with general expressions of praise others
extremely depreciatory of that work. «* He
would say that at the time of writing his Com-
mentaries, judge Blackstone was extremely
ignorant of criminal law."^*^ Blackstone when
he compiled his lectures wos c<»m]Kirativeiy au
ignorant man, lie was merely a frllow of All
Smils College, moderately skilled in the law.
His true and solid knowledge was arquireil
afterwards ; he grew learned as he proceeded
with his work."—** There were many tilings
in Blackstone's work \\hich, us a lawyer, he
was bound to say were mis-statements, among
them was the proposition to which the noble
lord had rel'erred." Lord Erskinc, however,
powerfully vindicated the Commentaries^
** The work shewetl the author's ^deep re-
searches into all the principles of our legal
constitution, and as informations ex itfficio iiere
part of the ancient law, it was from history ami
writers of authority which were open to htm,
that their true nature was to be traced ; fnnn
his not having attended the courts, he might
not know the modern practice, but he knew thd
grounds upon which such informations had
been first adopted and finally retained, wheo
their expediency came to be consiilei cd ; ami
he appeared to him to he correct, when lie «aid,
* that the objects of them, were properly audi
enormous misdemeanors as tended to endanger
or disturb the government, and in xs liich a mo-
ment's delay might be fatal; in such cases,
the law had given to the crown the power of-
an immedmte prosecution without waiting for
any previous applicationtoany other tribunal.'
— He entirely agreed with his noble and learn-
ed friend that this was not quite a correct view
of the use of informations in our own times,
nor even when tlie Commentaries were writ-
ten ; but to arraign the work on that account,
would be trying it not by the principles of th«
law, but by the very abuse complained of."

Indeeil, whatever be the authority of Mr.
Justice Blackstone's opinions at the time of his
death, to that authority, and not merely to the
weight of his opinions when he compiled his
lectures, are his Commentaries as he left them
entitled. Nine editions of Blackstone's Com-
meiitaries were published in his lifie-time, and
it appears from Hargravc's Jurisconsult Ex*
ercitations, vol. 1, p. :$81, that the tenth edition,
though publishcfl af\er Blackstone's death, had
been corrected by him.

Not nnconnected with the law of libel upon
which Mr. Home said so much in this case, is
the dictum of lord Ellenlmrough in the case of
Dubost V, Beresford, (2 Campbell's M^i Prius
llep. 5i 1,) being an action for destroyin:jf n pic-
ture, which was publicly exhibited,'biii which
it appeared was highly dofiimatory of a gentle-
man and his wife who was the dt- fondant's siMer.
Lord Ellenhoroiigh, C.J. B. U. snid " If it was
a libel upon the persons iatroduccd into il, tbt
i I

• «

/

»

T9DJ IT GEORGE HI. Prc€€e£ngi a^cUd J.\n Hime, [SOO

hw car.&bt C4«v«44er it iiifaai*ie as a picture. " Much t!oa*:»c ki« tcco f'>ra:eflv emenaineil

f,'p«>v fto a|^licaiK/n lo iLe L/^4 Cbuacdior, bi iLcA««iiOiibrre[i.<;4ieii:i^cci.\dk-tiiU£uis(iH|

be w««l'l ba«« granted 41:1 ir jaDctMO affU&M ha for tbcir konift^s^e crf tke cnmical law* of ibu

«zhiUii«>o, ao<l \Jbit p!ain*utf was Uiib cifiilj , coaDtf\, aii€tL<r ani criniio^ lofonuat&M

an-i crimioaJlj ra>»fe for tntia^ eabibiied h." > were Uwf'ul. Tee coosLiictioBs of 3lagi)4

I bate beeo iDf<«ruif-d I't «erv hitfh auiho- ' Charu, cap. I?, soom atkciect »taiu:e». atd

ritr, that iL« pr>ffi^.lj^at.o j ot iln« dcctri&e b'xkdcf the law, drcl^re and asnrt«, That u

refatio{rtrilh« l><rii ClfabC«:i>or\ if juDCtr'/n ex- ia«a caa be ciu'^'tnt, but b% indirtnieot ir

CkUA |(fr«at aaiObi%hin6rit in the ri-iii<j» r.f alt ilic f'resf-b'rTi'Dt — In iKe ca«e ot' ibe King* ajJ

practiijobera of the C4ij;!4 of e'lUiiv. aii«l I bail
■pprehetylM that this nuM i.«v b^pp^-nfri;
Wknt.H I belle re th#'rc ia oot to be tound io

ijf-rci.tt ami oiLtnr, 1 acd S W ill^io afi4
3Iar-v, re|««^rt<:d in Jih 31>i*i. 4<>S. and thriv
called P.iniifc's ca«e, «;r Fntorls iViacin^ttrii

the lio'A* auy d^r-tsioo '>r aay d.ctacii. \i>A\fT\ftT arerred ibat lor J ch;ri ju^iice Hale bad often

t/> tiffe da^i of the Sur Chariibrr. from v«hich
■uoh doctnne can he deiluced, f-iii.er direci!y,
4r by iiifenmce or anaUnry : unless iiid««J we
are V» ezrepi the prfjcee<.in;(ii of ] ird Elleoho-
roii|(h'4 yreidtctnior Sci<>tfj» ard hit asso-

iaid, * Tliat if €»'-r i:.f'>ruiaiioos came iodk-
pfite, tl:e} cuu li ni't »:aDd, but must necesariiy
fall 10 t.'ie srnutjd/ — it is admittrd, bcwtrrr,
that the ojui t of kiii:;*s-bencb io that case belu,
that iafonnaiiiibs lav at ctimmon law.

ci«ic«i in the ca«e of lltu-.y Cii:fr; in which ; *'Tiie prf-^ent question thereffrc will be, Wl.«
rsmtr *' Ori'inatuai •>! rjij'>«l liber ifiiiiuiai * llie are the r-:fii»-rs kiiOHn to the law, and dc-

persoosaiiii
ihibiting iiifornaalioci
■1 early cot!ec;«}f ^
qiiH. " See the Order lu «ol. ij, p. 19d, in ; from the auiliority of the letrislalure, abtJ the
'^i'''(?^*i» CJasc. Ste Ilei.ry Csre's Case, in I law hooks, that these oficera were only iLe j

king's aiioruey- general, and the k'ni^'s co-
roner, tu whicli latter is always added, in »'.ch

rsmtr ** ^fniiuziuai t>i (^WM iUier ifiMiuiai * ilie are the r-nii»-rs kiioiin to the I
IVerkly l^ar:ket of Adtice from Rome, or the - scribed in the Uw books, a» 1 he
lli«rtory of i'o|«ery,* nun ulimi'jn ini)irimafur . whum only thi> ri^hi of exhibiting
»ef poblicelur per ^h'quain |M'r*><iiiaiii qiiaiiicrin- ' er onlao reeled ? — It may be i-lea

▼ol. 7, p. nil. 8cealso, vol. Vj, p. 1152.

C'or»cernin(|^ appeal of murder, spokr-n of in p.
TlOi %ee the cases of Npencer Cowjier, vol.
12, p. HOG, and Tboiaas Bauibrid^p, vol. 17,
p. 3'J7.

In Vol. IG, which in just puhlishe«l, of the

rates, the title of attorney al>o — No act of |»ar-
liamcnt, no law book, mentions any other odiccf,
as bavins; this power in any case, or uodei any
circumsijinces. — Froiu the king's coroner ili.»
power was taken away by the statute 4 sjid S
William and Mary, cap. IB, and was then kit

New I'arliumentary History (p. 42.) it appears ' in the attorney general onU. — Serjeant Han-
that the attempt at the time of the involution ■ kins in his second volume of t^leasof theCrnwo, *
to take away Informations in the cfiurt of | fol. 2C8, observing upon that statute's tukis;:

King'H IVncn, (see p. 678) was mentioned by j away this pouer from the king's coroiiir
5lr. Nicholson Calvert in his speech on March attorney only, says, from whence it f<>ll<

4 1 176^1 in the llous<; of Commons, upon
iiioiin;; for leave to brint; in a Llill * lor the
relief of his Majesty's suhjecty, toucliint; Infbr-
iiiutionH in the King's-bem-li, by and in the
name ot his Majesty's Attorney-General.'

On the writ of error in Wilke^V Case, (See
Vol. 19, p. 1120) in support of the first error
assi|rni*<l, viz. ** That it does not a|>iiear by the
said ri coriis, itiat the said sir Fletcher Norton,
kiiit;ht, by uhoin the said informations against
the said John Wilkes were exhibited, had any
lawful power, warrant, or authority, according
to the Law of the land, to exhibit the said in-
formiitions in the records aforesaid specified ;
and, thf refbre, that the said infonnatiuns are
not Nufiicient infontiations in law, h hereon to
contict the said John Wilkes of the ofl'euces in
and by the same inrnrinations chart;ed upon
him, and to t^Mnind the aforesaid jiidfrments
ogaiuNt liiiu," the follotving reasons were al-
h-i^ed in his printed Case, signed by his counsel
(<j|ynn and Davenport.)

" J. Ih'cause the said informations are ex-
hibited ami filed by the suid sir Fletcher Nor-
ton, as his Majesty 'sStdicitor General, ex officio,
when, by virtue of such his office, he had uo
geueral authority so to do.

** II. iiecauseit does not appear, tbat he bad
any apecial luthority so to do.

sl4
lloai,

I

that mtbrmations exhibite<l by the attorufV
general remain as they were at common U«-

'* iSuch informations can only be exhibited m
the court of King's-bcnch, of which court the
king's attorney general and the king's coroorr
and attorney, commonly called the roaster of
the Cruwn-oiiice, areutticers upon record, and
have their known seaisand places there as such.

** Sir Uarlholomew Shower, in his Ue[M>r(s
fol. 114, in the same case above mentioned in 3
Alod. argues and observes, upon the statute ."^l
Elizabeth, cap. 5, and its proviso in sect. 3, pro-
viding ** That that act shall not extend Io aav ly
such ofiicers of record as have, in respect nt «
their offices, theretofore lawfully used to ex- ij
hibit informations,' that it is the judgment of
parliament, that there were ofiicers to exhibit
them, and those that are meant must be the at-
torney and his deputy the coroner, for I knoV)
says he, no other. — It may he thaught that sir f»
Bartholomew rSliower is inaccurate in calling L
the coroner deputy to the attorney, becausethr
coroner has a sn|ierior seat in the court of
Kin;; 's- bench to the attorne\. — Hut sir K«r-
thidomew Shower must be understood to sfK'ak
of the coroner, as deputy only in this iustaDrCf
he not having equal power with the alturuej
over the information when exhibited ; for the
coroner cannot put a stop to it even Uiougb k^

« *

SOI]

JbraUbd.

A. D. 1T77.

[801

ihould hare the kinji^'s warrant under his tign
manual fur the purpose ; and yet the attorney-
greoeral can, by Tirtue of his office, atop it at
Dooe by a noli prosequi, which appears by the
caae of the Kiiif^ v. Benson, t Vent. 33. Sir
Bartholomew Shower, fol. 120, says further,
rbat in case of malicious prosecution, no action
lies aj^inst the attorney or coroner, any more
thanaf^insta p'and juror or prosecutor; and
the rea»(t>n f^iven fur it i^, because they are
upon their oaths, and so says he, they (mean-
ing' the attorney and coroner) are here as offi-
cers upon record ; and fol. 122, he says, the
way of apprizing the Court is, by * dedit curie
bic intelligi et informari' before any process,
which is done by a sworn officer filed of
record.

'* If it lie contended, that durincf the facancy
oftli^ office of attorney {general, bis authority,
in this resjiect, devol?es upon the solicitor f(e-
Deral ; it is answered, that no law book or ju-
dicial determination warrants that argument.
It is admitted that there are some modern ia-
•laoces in the rolls of the Crown-office of in-
formations filed by the solicitor general, ex
officio bome of which describe the racancy of
tlie office of attorney general, as if that was
Ibe circumstance from ^hich the Sitlicitor fe*
Dera* denred his authority, and raised to him-
•elf this |>ower. But as the others are ailent
about such- racancy, they must prore a general
original auihority, or nothing ; because if a
special authority is to gire the title, it most by
tbe rules of law be set forth in the record, for
iothing out of tbe record can warrant the judg-
neot Ufion the record. There does not appear
to be one instance of a litigation, or judicial
•pinion, conccrninf; such iutormatioos filed by
tbe solicitor general.

'* It appears upon the records, that the
attorney general became the prosecutor of tbe
present informations, before the judgments
were given. But no adoption afterwards, by
the attorney general, of these illegitimate
aflbpring can sanctity their birth. If the infor-
mations were bad when thev were filed, no aub-
•equent act whatsoever could make them good.
** Wherefore, as the legislature haa not sub-
ilitated, nor meant to substitute tbe solicitor
general, or any other person or persona, in the
raom of the coroner, from whom they took this
^wer, or in the place of the attorne3r general,
daring the vacancy of that office, as it was al-
ways in the power of the king to supply that
Vacancy at any moment he pleased ; as the
ligislature has \eh the attome3r general the
owly kuown officer in law, authorial to exhibit
•riminal informations ei officio ; as tbe solicitor
tcneral i^ no aworn officer of tbe court of
MgVbenob, either filed of record, or other-
wise ; as all the law-books are coosibtently ailent,
about any power kidgeil in him for such pur-
|sae ; as this |)ower has of late time only been
isurped by the aolicitor general in aoine roo-
^ern inatances, and those too varying in tlicir
brm,ii« if he dkt ant knnw on wnut ground he

VOL. TOL.

claimed or exercised the power ; and tt he ap-
pears to have had 'no warrant or authority
whittaoever to act in this intunce aa attorney
for the crown ; il Is humbly submitted by the
plaintiff in error, that the informations in ques-
tion were filed without anv lawful authority^
and for that reason are fundamentally bad and
void, so as not to warrant any judgments upon
them agaiost the plaintiff in error."

On the part of the crown it was said in an-
swer, ** That an information for an offence is n
surmise or suggestion upon record, on behalf
of the king, to a court of criminal jurisdiction,
and is, to all intents and purposes, the suit of
the. king; and that it would be difficult to as-
sign a reason, why his majesty should not hare
equal liberty with the subject of commencing
and prosecuting his suits, by those persons
whom he thinks fit to confide in and employ.
That the attorney and aolicitor general are in-
vested, by their offices, whh general authority
to commence and proselcute the suits of tbt
crown : it is true, the attorney geceral, aa the
superior officer, has the direction and control
of his majesty's prosecutions, lu which the
solicitor general sekioin interferes ; but it is
equally true, that during the vacancy of the
office of attorney general, all the auits of tbe
crown, both criminal and civil, are commenced,
provecuietl, and carried on by the Solicitor Ge-
neral. That at the time u lien these informa-
tions were filed against Mr. Wilkes, the office
of attorney general was vacant, and conse-
quently the solicitor general was the proper
officer to exhibit them. But it is said, that the
fact of the vacancy ought to appear ii|ion the
record : the only pretence for such an averment
is to inform the court of the vacancy, as an in-
ducement to receive the information from the
solicitor general ; but there is no necessity for
that intelligence. The attorney general is, in
truth, an officer of and has a place in the court
of King's-bench, and the Court will take notice
of the vacancy of the office ; and there are
multitudes of instancesof suits commenced and
prosecuted by the aolicitor general on behalf
of the Cniwn, without any averment or notice
taken of the vacancy of the office of attorney
general. Bnt if the circumstance of an infor-
mation being filed by the solicitor general fur-
nished any real ground of objection to the pro-
secution, yet it was conceived, that the plainiiff
in error waa now precluded from availing him-
self of it; it could at most amount only to an
irregularity, and the remedy must have been
by application to the court to have the informa-
tion taken off the file, or the proceedings stayed.
It coulil never be a cause of demurrer, or of
arrest of judgment, or a ground of error \ and
'Mr. Wilkes, having pleaded to tbe ofi*ence, bad
waived any advantage of that irreguUrity.
Besides, tlie solicitor general having, during
the auit, been appjinteil Attorney General
adopted the information, joined issue with the
plaintifi' in error, nod prosecuted the suit te •
conviction.''

«F

80S]

10 GEORGE III.

Trial of John Alnum^

]m

S53. The Trial of Jonv Aliion, Bookseller, upon an InformatioD,
filed er officio, by William De Grey, esq. his Majesty's At-
torney-General, for selling Junius's Letter to the King : Be-
fore the Right Hon. William Lord Mansfield, and a Special
Jury of the County of Middlesex, in the Court of KfngV
Bench, Westminster-Hall, on Saturday the 2d day of JudCi
IOGeobgeIIL a. d. 1770. [Taken in Short-hand.^]

Copt of an Information, filed Ex-Officio by
' WiLUAM De Gret, et^. hit MHJeitjf'f At-
torney Geoeral, aipaintt Jobn Almon»
Boolueller, for publisbinf^ a Libel.

MiddUtex^ Filed Hilary Term, 10 Geo, 3.

Information aeti forth, That John

AlmoD, late of the pariah of St. Jamea,
withio the liberty of WeatmtDater in the
conoty of Bliddleaex, bookseller, baring no
resrard to the laws of this king^dom, or the
public peace, good order, and gofernmeot
thereof, and moat unlawfully, aediiiously, and
roaliciouslv contriTing and intending by wick-
ed, artful, acandalooa, and aialicious allu-
aiont, aup|KMitiona and insinuationt, to mo-
lest and disturb the happy slate, and the
public peace and tranquillity of thia kingdom,
and most insolentlv* audaciously, and nnjnatly
to asperse, scandalize, and yility our said pre-
sent soreretgii lord the king, and to represent,
and to cause it to be belier^, that our said so-
vereign lord the king had by bis measures of
gofemment lost the affections of his subjects
in that part of Great Britain called England,
and in Ireland, and in his dominions of Ame-
rica, and brought the public affairs of this king-
dom into a most distressed, disgraceful, and
lamentable state and condition ; and also, most
unlawfully and maliciously contriving and in-
tending to reuresent, and cause it to be belief ed,
4hat our said lord the king had besto\red pro-
motions and faTours upon his subjects of that
part of his kingdom of Great Britain, called
l^cotland, in preference to his subjects of that
part of Great Britain called England, and
thereby to create q^roundless jealousies and
uneasiness in his mnjesty *s subjects of England,
and also most unjustly to represent, and cause
it to be believed, that our said lord the king had
bestowed promotions and favours upon one part
of his said majcKty's army, commonly called
the guards, in preference to another part of his
army, mmmouly called the marchinjif regi-
ments, and thereby to create groundless jea-
lousies, uneasiness, and mutiny, in that part of
his army called the marching regiments, and
to bring our said lord the king and his adminis-
tration of the government of this kingdom,

* Printed for J. Miller, in Queen's- Head-
Puiage, Paternoster-row, 1770.

into the otmost dishonour and contempt, and to
poison and infect the minds of his roajeaty'b
aobjecta, with notions and opinions of our said
lord the king, highly unworthy of oar said
lord tbe king, and of that paternal love and
concern which he hath always showed and
expressed for all his subjects, aa if omr Slid
lord the king bad unjustly taken a part with
some of bis subjects against otliers, and had
nnjiistly prostituted the meaaures of his go-
vernment to gratify personal resentment ; and
also, thereby as much aa in him the said Jobs
Almon lay lo alienate and withdraw from oor
said lord the king that cordial love, allegiaoee^
and fidelity whicm every sulject of oar said kwd
the king snonUl and of right ought to haveaad
shew towards our said lord the king ; and abo,
most unlawfully, wickedly and malidously coo-
trivingand intending, by wicked, artful, scandal-
oofl, and malicious allusions, suppositions sod
insinuations, to traduce, scandalize, and vilify
the principal officers and ministers of oor siid
lord the kmg, employed and entrusted by oar
said lord the king in the conduct and manage-
ment of the weighty and arduous affairs of this
government, and to represent, and cause it to
be believed, that said principal officers and mi*
nisters had violated the laws and cimstitutioB
of this kingdom, and adopted weak, oppressire,
and infamous measures in the admioistratioo
of the public affairs of this kingdom, and had
brought distress and misery upon the subjccti
of this kingdom ; aud thereby to weaken and
diminish the public credit, power and autho-
rity of the government, and also, as much as in
him the said John Almon lay, contriving and
intending to asperse, scandalize and vilify tbt
members of the present House of Commons
of this kingdom, and to represent them as to
abandoned, profligate set of men, who had arbi-
trarily invaded the rights of the people, violated
the laws, and subverted the constitution of thii
kingdom, and also as much as in him the siid
John Almon lay, to move, excite, and stir op
the subjects of our said lord the king to instir-
rection and rebellion against our said lord tbt
king, he the aaid John Almon, upon the fir^
day of January, in the lOlh year of the reiffi
of our saifl present sovereign lord George the
3d, by the ffrace of God, of Great Britailf
France and Ireland, king, defender of the faitbi
and so forth, with force and arniki at Uie ptriA

805]

for M Libel.

A. D. 1770.

[506

r>f St. Jamei aforesaid, withio the liberty of
Westminster aforesaid, ia the county of Mid-
dlesex aforesaid, uolawfully, wickedly, sedi-
tiously, and maliciuusly did publish, and did
cause aud procure to be published, a roost
MTicked, scandalous, Keditious, and malicious
libel intituled, The London Museum of Po-
litics, Miscellanies, and Literature, in which
iud libel of and concerning^ our said present
wvcreijj^ lord the kioi|^, and of his adminislra-
tion of the government of this kiuf^dum, and
iIm of and concerning the public affairs of this
kingdom, and also of and concerning the prin-
cipal officers* and ministers of oor said lord the
lung, employed and entrusted by our said lord
ihe king in the conduct and management of
ibe weighty and arduous affairs of this govern-
nent, and also of and concerning the members
>f the present House of Commons of this kiog-
lom, are contained (amongst other things) di-
rers, wicked, scandalous, seditious, and roali-
aous matters (that is to say) in one part thereof
iccording to the tenor following, to wit, ** Ju-
lias's letter to the **** (meaning our said
•nl the king). When the complaints of a
mre and powerful people are observed to en-
Tease in proportion to the wrongs they have
luffcred, when, instead of sinking into submis-
iioD, they are roused to resistance, the time
vill soon arrive at which every inferior consi-
leratioo must yield to the security of t^e so-
vereign, and to the general safety of the state.
Pbere is a moment of difficcklty and danger, at
rhicb flattery and falshood can no longer de-
rive, and simplicity itself can no longer be
Dialed. Let us suppose it arrived. Let us
luppose a gracious, well-intentioned prince,
oaue sensible at last of the great duty he owes
o his people, and of his own disgraceful situa-
ion ; that he looks round him for assistance,
ind asks for no advice, but how to gratify the
tiahes« and secure the happiness uf his subjects.
[d these circunAstances it may be matter of
various speculation to consider, if an honest
nan were permitted to approach his king, in
vhat terms would he address himself to his
iOfereig'n. Let it be imagined, no matter bow
mprobable, that the first prejudice against his
character is removed, that the ceremonious dif-
Icalties of an audience are surmounted, that
le feels himself animated by the purest and
Doat honourable affections to his king and
uiaotry, and that the great person, whom he
tddresaes, has spirit enough to bid him speak
reely, and understanding enough to listen to
lim with attention. Unacquainted with the
^ain impertinence of forms, he would deliver
iw sentiments with dignity and firmness, but
lot without respect. Sir, (meaning our pre-
leot sovereign lord the king) it is the misfor-
4ine of your life, and originally the cause of
nrery reproach and distress which has attended
jTOor government, that you (again meaning
Mr present sovereign lord the king) shoold
acrer have been acquainted with the language
vi troth, until you heard it in the coronlaints
If jow people. It is Dot^ howcfer, too late to

corrtet the error of your education. We are
still inclined to make an indulgent allowance
for the pernicious lessons you received in your
youth, and to form the most sanguine hopes
irom the natural benevolence of your disposi-
tion. We are far from thinking you capable
of a direct, deliberate purpose to invade those
original rights of your subjects, on which all
their civil and political liberties depend. Had
1% been possible for us to entertain a suspicion so
dishonourable to your character, we should
long since have adopted a stile of remonstrance
very distant from the humility of complaint.
The doctrine inculcated by our laws, that the
king can do no wrong, is admitted without re-
luctance. We separate the amiable good-
natured prince from the folly and treachery of
his servants, and the private virtues of the man
from the vices of his government. Were it
not for this just distinction, I know not whe-
ther your m y's (meaning majesty's) con-
dition, or that of the English nation, would de-
serve most to be UmentM. I would prepare
2 our mind for a favourable reception of truth,
y removing every painful, offensive idea of
personal reproach. Vour subjects. Sir, (agaiu
meaning our said present sovereign lord the
king) wish for nothing but that as they are rea«
sonable and afiectionate enough to separate
your person from your government, so vou
(again meaning our said present soverei^p lord
the Icing) in your torn should distinguish be-
tween the conduct, which becomes the perma-
nent dignity «f a k-*g, (meaning king) and
that which serves to promote the temjiorary
interest and miserable ambition of a minister.
You ascended the throne with a declared, and
1 doubt not, a sincere resolution of givinff uni-
versal satisfaction to your subjects. You (again
meaning our said present sovereign lord the
king) found them pleased with the novelty of
a young prince, wliose countenance promised
even more than his words, and loyal tOiyou not
only from principle but passion. It was not a
cold profession of allegiance to the first ma-
gistrate, but a partial, animated attachment to
a favourite prince, the native of their country.
They did not wait to examine your conduct,
nor to be determined by experience, but ^ve
you a generous credit tor the future blessings
of your reign, and paid you in advance the
dearest tribute of their affections. Such, Sir,
(again meaning our said present sovereign lord
the king) was once the disposition of a people,
who now surround your throne with reproaches
and complaints. Do justice to yourself. Banish
from your mind those unworthy opinions with
which some interested persons have laboured to
possess you. Distrust the men who tell you
the English are natnrally light and inconstant,
that they complain without a cause. Withdraw
your confidence from all parties ; from minis-
ters, favourites, and relations ; and let there be
one moment in your life in which you (again
meaning our said present sovereign lord the
king) have consulteu your own understanding.
When you (again meaning our said lord tlie

807] 10 GEORGE IIL

kiog) affectedly renounced tlie nanae of Eng"
lithmao, believe me, Sir, (again meaning our
faid Jonl the king^ you were persuaded to |iay
a ?ery ill-judged compliment of one part of
your suhjecta at the expence of another.
iVhile the uativea of Scotland are not in actual
rebellion, they are undoubtedly entitled to pro-
tection, nor do I mean to condemn the policy of
S'ving some encooracrement to the novelty of
eir uffectiona for the Houae of Hanover. 1
am ready to hope for every thing from their
new-born zeal, and from the future ateadineaa
of their allegiance. But hitherto they have oo
claim to your favour. To honour tliem with a
determined predilection and confidence in ex*
elusion of your EogUah suhjecta, who placed
Tour family, and, in spite of treachery and re-
bellion have supported it upon the th — ne
i meaning throne) is a mistaLe too gross even
iM* the unsuspecting generosity of youth. In
this error we see a capital violation of the most
obvious rules of policy and prudence. We
ipace it however to an original bias in your edu •
cation, and are ready to allow for your inexpe-
rience. To the same early influence we attri-
bute it, that you have descended to take a share
not only in the narrow views and interest of
particular persons, but in the fatal malignity of
their passions. At your accession to ihe throne,
the whole system of government was altered,
not from wisilom or deliberation, but because it
had be<>n ailopted by your predecessor. A little
personal motive of^pique and resentment was
fufficient to remove the ablest servants of the
orown, but it is not in this country. Sir, (again
meaning our said lord the king) that such men
can be dishonoured by the frowns of a k — ,
(noeaning the king) they were dismissed but
could not be disgraced. Without entering into
a minuter discussion of the merits of the peace,
ive may observe in the imprudent hurry with
which the first overtures from France were ac-
cepted, in the conduct of the negociation, and
terms of the treaty, the strongest marks of that
precipitate spirit of concession with which a
certain part of your subjects have Ijeen at all
times ready to purchase a peace with the natu-
ral enemies of this country. On your part we
are satisfied that every tiling was honourable

and iiincere, and if E d (meaning England)

was sold to F e (meaning France) we doubt

not that your m -y (meaning ranjesty) was

equally betrayed. The conditions of peace
were matter of grief and surprise to your sub>
jects, but not the immediate cause of their pre-
■ent discontent. Hitherto, Sir, (again meaning
our said lord the i:ow king) you had been sacri-
ficeil to the prejudices and passions of others.
With what firmness will \ou (again meaning
our said lord the king) bear the mention of your
own ? A man not very honourably distinguish-
ed in the world, commences a ibrmal attack
upon your favourite, considi'ring nothing but
how be might bestex|)Ose his person and prin-
ciplea to detestation, and the national character
of his countrymen to contempt The natives
of that couBtrji Sir, (again meaning our aaid

Trial of John Almon, [GOB

lord the now king) are as much dirthigpisbed
by a particular character as by jour majesty's
favour. Like another chosen people tbey hai e
been conducted into the land of plenty, where
they find themselves actually marked and divid-
ed from mankind. There is hardly a period at
which the must irregular character may oot
be redeemed. The mistakes of one sex Had a
retreat in patriotism, those of the other in devo-
tion. Mr. Wilkes brought w ith bim into poli-
tics the same liberal seutiments by which Us
private conduct had been directed, and seeoiei
to think that, as there are few exoesaea, is
which an English gentleman may not lieocr-
mitted to indulge, the same latitude was allow-
ed him in the choice of his political priodpkf
and in the spirit of maintaining them, I aieu
to state, not entirely to defend his conduct;
in the earnestness of his zeal, he suffered some
unwarrantable insinuations to escape him. He
said more than moderate men would justify, bet
not enough to intitle him to the honour ol your
m — y'a (meaning majesty's) personal reseat-
meot. The rays of r — I (meaning royal) iodigti
nation, collected upon him, serv^ only to illo-
minate, and could not consume. Animated by
the favour of the people on one side, and bat-
ed by persecution on the other, his views ni
sentiments changed with his situation. Hardly
serious at first, he is now an enthusiast ; tM
coldest bodies warm with opposition, the faardat
sparkle in collision. There is a holy mistakes
zeal in politics as well as religion. By pff-
suading others we convince ourselves. The

{mssions are engaged, and create a material tt-
ection in the mind, which forces ua to love the
cause for which we sufier. Is this a conteatiM
worthy of a k — ? (meaning king). Are yo<
(again meaning our lord the now king) notees*
sible how much the meanness of the came
gives an air of ridicule to the serious diflScultief,
mto which you (ag^in meaning our said M
the king) have been betrayed ? The destruc-
tion of one man has hreo now, for many yean,
the sole object of your government, audit there
can beany thing still more disgraceful, we bate
seen for such an object, the utmost influence of
the executive power, and every ministerial ar-
tifice exerted without success. Nor can yoa
(ugain meaning our said lord the now king)
ever succeed, unless he should be imprudest
enough to forfeit the protection of those laws,

to which you owe your c n (meaoinf

crown) or unless your ministers should |)cr-
suade you to make it a question of force aloo^
and try the whole strength of government in
opposition to the people. The lessons he bii
received from experience will probably guard
him from such excess of folly ; and in your

m s (meaning majesty's) virtues we find il

unquestionable assurance that no illegal vio*
lence will be attempted. Far from suspediflff
you (again meaning our said lord the now kii^
of so horrible a design, we would attribute tvl
continual violation of the laws, and even tkil
last enormous attack upon the vital priodphl
of the constitution, to an ill-adviied, unwiray»

for a LiM.
Frtim ant fnlw aipp jnii
(H^aio Rimnintf our ssiil lurd llie now kioq;)
hafe been Iviinvnl iixo anoilier, and an the
CBU» was uiiwiirtliy nf }'iiu (at;aiii meaning'
our said I'inl the now kinii) your ministers «ere
dcif rrniDCd llial the [iriiiletice ol' the execution
ihniiM mrreajKind with llie wiolom am! dii^niljr
ufihe deiiijn. They have reduced you (ai;Rln
meinitiic our said lord (he nnw kinu) to ihe ne-
cr9»ii> of cliomiiig- outul* b variety urdtfflciil-
liei; — ina lituaiinn so (inlmpity that yon (ignin
DieatiintC our uiri ii-nl the iioif' kiiijf) van Dei
Ihrr Hu vrr.-iit.' wiihi'ut ruin, nor n^lit wiili'>iit
aSiuiion. Tliese worthy Ml tantshavrund'iuht-
edly atv^n ynu m«ny aintciiUr immli. iiC their
■biJilin. Nul(»nl>'»lr<t»il1iniHkiiii£Mr. Wilkes
i man of iinjioriauce, they haiejuiliciou^ly trann-
(tnul the quesiiuii I'ruin (be rii;lit« soil lalvreRl
nroaemnulD the oiiat inipiirtani rights and
talPTHl* ol'llie jwople, and I'urced yourauhjrula,
fnitn nishini; hcII to the cniii>e of an iodirj.
ilnat, to unite »ith him in their nnn. Let them

jiinceed >i ihey liMe begun, and your m y

jmeknini; majetty) nei-d not duubt that the
calulro|i1ie will dn no ilinhonour lo the cuaduct
ofibe |iiec«. ThecircuirisWncw to whicbyou
(ii;ain meaning uur laiil lord tlienow king) are
winced mill not ailnil of a com promise with
Ibc Eoylish natinn. Uiidecisifp, quBtifyin;^
mraiurei «ill disgrace your goverumcnt Btjll
moteilian open tioleiiee, aud, wilhuut aatitfy-
ing the people, will exHte their cotiiempt.
Tlicy hate too niucli undenisndini; and ipirit
MiLTept of an lodirEcl Miiabctlon fur a direct
iojgry. Notbing Ifu than ■ repeal, la fiirinal
u the reaulutlon itself, cuo Ileal the wound
"bich ba* lieen gircn to the constitution, nor
*ill any thing less be accepted. I can readily
Uieie that there is an Influrnce sufficient to

iieilllial pernicious *ule TlieH of

[iHtning the House of Commons in this kine-
Ha} nndonbledly consider their duty to ibe
t- — D (meaning craun) a^ |>aramnunl lo all
Wbtf oblii^ationi. Tu us Ibey are only in-
Mtcd for an accidental existence, and have
i«Wly Iranal'erred iheir graliiude from tUeir
~~' ' Xn ibeir benefactors ; from those, who

fr, from whose

Ibey deri>e the comforts and plea-
of their political life;~wlio has taken the
kadereal care of tbeir infancy, relieies Ibelr
MCeuilJe* without offending their delicacy,-
Udha* giran them, what Ibey value most, a
^iRaons edijcallon. But if it were possible tbr
UMt integrity lo be degraded lo a cumtiliaii so
^fle asd abjecl, that compared with it, the pre-
sent cilimalion Ihey stBTi<l in is a slate of bo-
■Ubi and rMpecl, consider, Sir, (again mean-
Uy oar said lord the nnw king) in what maii-
Hr ^ou will aAerwards nroceed. Can ^ou
(■gain meaniDg our said lord the nnw kinL')
CIIMdT« that the people of this counlry will
itnf rabmit lu be ko*b">^<' ^y w flexible a
H- of - — ! (meaning Ibc House of Com-
nous.) Il is not in the nature of human so-
ciety, that Buy form of goiernment in such
citcumstauces, can long i>e preserved. In

A. D. 1770.

[SIO

cm till

•ttevok

ersonnllv D'

onrt tlia (renvral eontetnpt of the people is a*
fatal B8 their dateitakiun. Such, I am pai^
suaited, would be the neoessnry effect of any

made by the present M of

(ag-ain moaning the present House of
Commons of this kingdom) and as a qualifying
measure woutil not be nccepltd, it reinaiiia fur
you (a^ain meaning our said lord the now
kinf) to ilrcide iiheiher you will, at any ba-
naid, support a aet of men, who haie reduced
you lo this unhappy dilemma, or wbetlifryoit
will gratify the united wishes of the whole

people of Bni;1and, by diwolTinif the |i ;

(meaning parliament] Taltlnif it liir granted,
as 1 do very sincerely, that you (again
iiig our aaid lord (belting) hai -
design against the conslilulion.
incoDsisient with the good of your subjeels, i
ihink you cannot liesitaie long u)>on the cboioa,
which it equally noucerna your interest ■nil
yoor lioDourts ednpl. Oo one side, ynu (again
meaning uur said loid the nnw king) liasarLl the
affections of all jbnr English subjects ; ynu re-
linquish every hope of reiKite to yoiirssl^i and
y»ii (again meaning our said lord the now
king) endanger the establishment of your fa-
mily for ever. All this yuu venture fur do ob-
ject whatsoever, or for such an olijcct, as it
would be an affront to you tu name. Men of
sense will examine your conduct with siw-
|Hcinn ; wliile those wlio are incapable of cotn-
prehendiog to what degree Ibev are injured,
afflict ynu with cinranurs eqnally insolent and
unmeaning. Supposing it possible thai im
fata) sinigffle shonld ensue, you (again mean-
ing our said lord the present king) determine at
onre lo be unhappy, withniil the hope of a eoiw-
penwlioo, either truro intf real or anibiiioB, )f
an E sh (meaning Englisli) k (mean-
ing king) he haled or despised, he must be un-
happy; and this perhaps i:i the only politigal
triiih. which he oufibt to be convinced uf with-
out experiment. Bui if (lie English people
should no longer coiiflne iheir resentment l» a
Bubmisalve representation nf their wrongs ) if
following Ihe glorious exam pie of iheir aneea-
tors, they should no longer appeal lu the crea-
ture of the coDBlitution, bat to that high being
who gave them the rights of humanity, wlioae
gifts it were sacrilege to aurrender, let me ask
you, Sir, (sgain meaniuguur aaid lunl the pre-
sent king) upon what part of your subjects
would ynu rely fur assistance f Tbe people of
I — I— d (meaning Ireland) have been uniformly
plunderet) and oppressed. In return, they give
vnii every day fresh marks of their resenlmeni,
Tliey dt^pisu the miserable governor yoa
(again meaning onr said presivt sovprri;;n lord
the king) have leul them, btcanoe he is tli«
creature of lord Bute ; nor is it from any nam.
ral confusion in their ideas, that ihry nre so
ready to confound the original of a k~g
(meaning king) with the disgraceful represen-
tation of bim. The distance af the colonies
would make it itnpossible furiliemio take an
activt concern in your affairs, if ihey were ••
well affected to your goveroinnit as tbey odm

Sll] 16 GEORGE III.

firatefMM to be to yoor peraoo. They were
ready eooagb to dintiDgfuish between you (a^ain
meabiog our taid present sovereign lord the
king) and your miniiters. - They ooroplaioed
ot'an act ofibe legislature, bot traced the origin
of it no higher than to the servants of the c — o
(meaning crown) they pleased themselves with
the hope that their s — r — n (meaning sove-
reign) if not favourable to their caote, at least
was impartial. The decisive personal nart you
look against them,' has effectually banished
that first distinction from their minds. Thtfy
consider you as united with your servants
against A — r — a (meaning America) and koow
bow to distinguish the s n fmeaning

sovereign) and a venal p t (meaning

parliament) on one side, from the real senti-
ments of the English people on the other.
I/wking forward to independence they might

Iiossibly receive you (again meaning our said
ord the now king) for their k — ; (meaning
king) but if ever you retire to A— r— a (mean-
ing America) be assured they will give you such
a covenant to digest, as the presbytery of
Scotland would have been ashamed to offer to
Charles the second. They left their native
land in search of freedom, and found it in a
desart Divided as they are, into a thousand
forms of policy and religion, there is one point
in which they all agree : they equally detest
the pageantry of a k — , (meaning king) and
the sup&rcilioos hypocrisy of a bishop. It
is not tlien from the alienated affections of
I— I— d (meaning Ireland) or A — r — a (mean-
ing America) that you Regain meaning our said
Iiresent sovereign lord the king) can reasonably
ook for assistance ; still less from the people
of £ — U— d (meaning England) who are ac-
tually contending for their rights, and, in this
great question, are parties against you (again
meaning our said present sovereign lord the
king.) You (again meaning our said present
sovereign lord the king) are not however desti-
tute of every appearance of support ; you
(again meaning our said present sovereign lord
the king) have all the Jacobites, Nonjurors,
Roman Catholics, and Tories of this country,
and all 8 — I — d (meaning Scotland) without
exception. Considering from what family you
are descended, the choice of your friends has
been singularly directed ; and truly. Sir,
(again meaning our said lord the now King) if
you had not lost the Whig interest of England,
I should admire your dexterity in turning the
hearts of your enemies. Is it possible for you
to place any confidence in men, who, before
they are faithful to you must renounce every
opinion, and betray every principle both in
church and state, which tbey inherit from their
ancestors, and are confirmed in by their educa-
tion ? whose numbers are so consideral>le, that
they have long since been obliged to give up
the principles and language which distinguish-
ed tnem as a party, and to fif^ht iwder the ban-
nera of their enemies ? their zeal b(»ins with
hypocrisy and must conclude in treachery. At
fiirst Ibey daceife; al last they bttray. Aa to

Trial afJakn Almon^

[8lf

tbe^Scotch, I must suppose your heart and un-
derstanding so biasseil, from your earliest ia-
fancy, in their fdvour, that nothing leu tbaa
vour own misfortunes can undettive you.
Vou (again meaning our said present sovereign
lord the kinff) will not accept of th«* nnifnrm
experience of your ancestors ; aud u ben oiice
a man is determined to belieire, the very ab-
surdity of the doctrine confirms him in hit
faith. A bigotted understand iug can draw a
proof of attechmeot to the House of 11— n— r
(meaning Hanover) from a notorious zeal for
the House of Stuart, and find an earnest of
future loyalty in former rebellions. Appcsr*
ances are however in their favour ; so strwiglj
indeed, that one would think they had foi^«
ten that you are their lawful k — , (meaniojj:
king) and had mistaken you for a pretendtf ts
the o— n. (meaning crown) Let it be adoiilted
then, that tlie Scotch are as sincere in tb«ir
present professions, as if you were in reality
not an Englishman, but a Briton of the norib,
you would not be the first p — -e (mcaoiDg
prince) of their native oountnr against whom
they have rebelled, nor the first whom tbef
have basely betrayed. Have you (meaaiig
our said lord the now king) forgotten, Sir, or
has your fiivourite concealed from you tbtt
part of our history, when the unhanpy Chsiiei
(and be too had private virtues) (led from thi
open avowed indignation of his English Mb-
jects, and surrendered himself at diacretioo to
the good faiib of his own countrymen. With*
out looking for support in their affecttooi u
subjects, M applied only to their honour, «
gentlemen, for protection. They received hin
as they would your m— -y (meaning m^j)
with bows, and smiles, and falshood, and kept
him until they had settled their bargain wiiii
the English parliament ; then basely sold their
native k — (meaning kin^) to the vtMigeauceof
his enemies. This, Sir, was not the act of •
few traitors, but the deliberate treachery uf t
Scotch parliament representing the nstiuo. A
wise p — ce (meaning prince) might draw Cron
it two lessons of equal utility to himself; oo
one side he might learn to dread the uodis-
guised resentment of a generous people, vbo
dare openly assert their rights, and who, 40 &

juit cause, are ready to meet tlieir s -o

(meaning sovereign) in the field ; on the olhtf
side, he would be taught to apprehend sonw-
thing far more formidable— a fawniug tret*
chery, against which no prudence can guir^
no courage can defend. The insidious imiki
upon the cheek would warn him of the cioktf
in the heart. From the uses, to which oai
part of the army has been too frequently SP*
plied, you (again meaning our said lord tat
now king) have some reason to expect, tkit
there are no services they would refuse. Bert
too we trace the partiality of yonr understas'-
ing. You take the sense of the army from tbi
conduct of the guards, with the same juiMi
with which you collect the sense of the peopti
from the representations of the ministry. Yotf
marcbiog regimsBts, Sir, (again meaniog M

nH Urt^lM now king) irill cut make llie
IfuirAllmreximpIc either as sDliliers or cub'
jects. Tliej Feet anil resenl, ai Ihry ou[;lil to
ill), thil in*Brialle, uiiJislJDguiBliini; I'araur
nith whicti the frmrdi are Ireated, wliile (buse
(;allani Iroopi, by «>ii>m etery liii£arJoui,
every lilmriiiui service is (leTformed, are leli
10 prrish in garrisons abrond, oi' [tine in quar-
ter* ■! hotnp, neglecleil anil lurcolten. IT
theji liad no lense of Ilie great original duly
liiey owe iheir country, iheir resentment would
oprrale like [islriotiiiu, and leave your caiiu to
be deTMideii by those lo wbom you (a^'ain
raeaDing- our saiil fireseot Barerei<^n lord the
kinir) bate lavished Ibe rewards and homiura
of their profession. The pnelorian bands,
enerrated and dehnuchefl as they were, bad still
Mrenglh eooii^b to awe ibe UomBD populace;
but when the ilifitant legions look the alarm,
Ibfy tnarched In Rome, and gHve away Ibe
empire. On this side then, wbicbever way
ynu (sgaiu meaning our said lord the now kin^)
nay determine lo Eiipport tbe lery miaietry
who have reduced yuiiraflairs tolbis dejilorabU
lilualion : you may shelter youraell' under the

lormt oC > ji 1 (memiiiig pwliaroent) and

Rt your people at tleliance. But he assured,
SSr, ilial such a rcaobilion would be as impru-
tm. as it would be odious. II' it did nnt ira-
mnJiaiely sbake your eslnblisliment, it would
nib you of your peate of mind lor eter. On
ibe oilier, bow different is the prospect! hnw
(«>}', buw safe noil honoorahle is the path be-
Fiitc yon ! tbe English nation declare Ibey arc
iinmly injured by their representatives, and

Hicit your m (meaniug majesty) to enert

fwt lawful prerogalive, and gire them an op-
unrliiniiy of recnilin^ a trust which, they find,
lii< been io iRandalously abused. You are not

In be loIJ that the p»wer f^ the II of

■ (meaning House of Commons) is nol

■nginal, hut delegated to Ibera tor tbe wellare
»f Ibe people, friim whom they rpreive it. A
numinn of right arises between llie conslitnetit
»>d Ibe repiesentaiire body. By what aulho-

niy iball It he ileridfd ? will your m y

(mnnini; mnjesly) inUifere in a qiieatiou in
"hich you iiave properly no immediate con-
fiTn ? It would be a alep efpially odious and
oinrcMMrv. Hhall the Lords be called upon lo
■tHrrmineOie rights and privileges of the Com-
•nom ? They cannot ilo il wiilmut a flagrant
l"etch of the const i lotion. Or will you (ai^Bin
"■nning our laid lord the now king) refer it lo
Itic judges? They have often laid your an-
"slnrs, ilmt ihe taw of parliament is aboie
|bmi. IViial party then remains but to leave
" lu tbe people to deleroiine lor themselves ?
tbcy alune are injured; and since there are no
•njiriuf power lo which the cause can be re-
■rreit, ibey alone ought lo determine. 1 do
lot mean lii perplex you {npoin meauing our
ttiil present sovereign lord the king) with a
Minus argument u|>on a subject already so
diKUBcd. ihni in<pirBlii<n could hardly throw

yonr ni— y (meaning majesty) to consider

the late proceedings of the H of

[meaning House uf Commons.) By depriving
a subject uf his birthright, they have ntlribuled
10 Iheir own vote an authority equal lu an act
of ibe whole legislature ; and though perhaps
not with the same motives, have slrlclly lut-
lowed ihe eitample of the Loag Parliament,
which first declared ihe regal office useless, and
soon after, wiih as litlle ceremony, dissolved the
House of Lords. The same pretended power
which robs an English suhjecl of his birthright
may rob an English k — (meaning king) df his

c n (meaning crown.) In anoiber view, ibe

resolution of the H of (meaninff

House of Commons) ap|jareolly not so dan-
gerous lo your m , (meaning majesty) is

still more alarming to your people. Nol con-
tented wilb divesting one raao of his right,
they have arhitrvrily conveyed Ibat right lo
another. They have set aside a return as
illegal, without daring to censure ihase oSi-
cers who were particularly appriied of Mr.
Wilkes's incapacity, not only by tbe declara-
tion of the H (meaning the said House)

hut expressly by Ihe writ directed to them, but
who nevertheless returned him asdnty elected.
They have rejected Ihe majority of voles, the
only criterion by Which our laws judge of Ihe
sense of the people; Ibey have iraiislerred the
right of election from ihe collective lo ihe re-
presentative body ; and by these acta, taken
separately or together, they hate essentially

altered the original conslilulicm of the H

of C (iDeauiog House of Commons.)

Versed, as your m (meaning majesty)

undoubtedly is, in the English history, it can-
not easily escape you, how much it is your
interest, as well as your duly, to prevent one
of Ihe three estates frnm encroaching upon
the province of Ihe other two, or assuming
tbe auiboriiy of them all. When once they
hare departed from the great const ilulional
line, by which all iheir proceedings should ba
directed, who will answer for their future mo-
deration ? Or what assurance will ibey give
yoti (again meaning our said preKnl sovereign
lord the king) that, when Ihey have trampled
upon Ibeir er^uals, they will submit to a

superior? Your m • (meaning majesty)

may learn hereafter, hiw nearly Ihe slave and
tyrant ace allied. Some of your council, mora
candid than Ibe rest, admit the abandoned pro-
fligacy of Ihe prevent H of

(meaning House uf Commons) but oppose
Iheir dissolutluQ upon an npinioo, I confess not
very unwarrantable, that Iheir successors would
be equally at the disposal of the treasury. I
cannot persuade myself that the nation will
have profited so litlle by experience. But iT
tbatopininn were >vel]fouoded,you (again mean-
ing our said present sovereign lord the king)
might then gr&lily our wishes at an easy rate,
and appease the present clamours against your
gorernmrni, without offering any material in-
jury to the livunrite cause of corruption. You
(Again Bieajiing ouf aaid present sovereign loni

S15]

10 GEORGE III.

Trial of John Altnon,

[816

the king) have itill au honourable part to act.
The afl'ectionsof your ftuLjectsnnay still be re-
covered. But betbre you (again meaning our
said present soTereign lord the king) subdue
their hearts, you must gain a noble victory
over your own. Discard those little personal
resentments which have too long directed your
public conduct. Pardon this man the remainder
of his punishment, and if resentment still pre-
vails, make it what it should have been long
■ince, an act, not of mercy, but contempt. He
will soon fall back into his natural station, a si-
lant senator, and hardly supporting the week-
ly eloquence of a news-paper. The gentle
breath of peace would leave him on the sur-
face, neglected and unremoved. It is only the
tempest that lifts him from his place. Without
consulting your minister, call together your
whole council. Let it appear to the public that
you can determine and act for 3[ourseif. Come
rorward to your people. Lay aside the wretcheil
Ibrmalities of a k — (meanm^ king) and speak
to Vour subjects with the spirit of a man and
in the language of a gentleman. Tell them

J oil (again meaning our said present sovereign
»rd the king) have been fatally deceived. The
acknowieilgment will be no disgrace, but rather
an honour to your understanding. Tell them
you are determined to remove every cause
of complaint against your government ; that
you will give your confidence to no man who
does not fiossess the confidence of your sub-
jects ; and that you (again meaning our said
present sovereign lord the king) will leave it to
ibemaelves to determine, by their conduct at a
future election, whether or not it be in reality
the general sense of the nation, that their
rights have been arbitrarily invaded by the pre-
sent H of C ' (meaning House of

Commons) and the constitution betrayed. They
will then do justice to their rcpre&eDtatives and
to themselves. These sentiment, Sir, (again
meaning our said present sovereign lord the
king) and the stile they are conveyed in, may
be ofieiisire perhaps because they are new to
yon. Accustomed to the language of courtiers,
you meosu:-.* their aftections by the vehemence
of tlK'ir rxprei^ions *, and n hen iliey only praise
you indirectly y«iu admire their Hiicerity . But
this is not a liinv to Ititle with \our iortune.
They deceive yon, Sir, (.it^ain mnining our said
present sovereign lord the kinu) uho tell you
that you (aifsin meaning our said h>i-d the kiiiir)
have many IrieiuU, whfise affections are found- |
•d upon a principle of pergonal attachments. ■
The first foundation of fneiMlsiiip is net the j
power of ctMit'erring benefits, but the equality ■
witii which they are recfivt'd, and may lie le- '
turneil. The t'oriune wliich maile ynu (attain
mc«ninir our said present S(ivereii;n lord the ;
kins) a kioir (meaning kins:) tiwbad you to have i
a friend, ll is a law of nature which cannot
lie violated with impunity. The mintaken
p«-e (meaBinK prince) w ko kioks torfriendsbip,
will find a favoarilc, ami ia Ibal favourite the
raitt of Im allMn. Tha pcoiile of £— gl-Ml
(aiMHV taf/imi}mmMgmHfkmU9mm9i

Ha — ver (meaning Hanover) not from a vtia
preference of one family to another, but from
a conviction that the establishment uf ibat fa-
mily was necessary to the support of their civil
and religious liberties. This, Sir, (again mean-
ing our said present sovereign lord the kinv ) ii
a principle of allegiance equally solid and ra-
tional, fit for Englishmen to aclopt, and well
worthy your m— — y*s (meaning majektv'a|
encouragement. We cannot long be cleliulM
by nominal disttnctiuos. The name of Stosit
itself is only contemptilde; — armed with tbt
sovereign authority their principles were for-
midable. The pnnce who imitates their csa-
dnct should be warned by their example; ni
while he plumes himself upon the security
of bis title to the crown, should remembtf,
that as it was acquireil by one revoluiioo, it
may be lost by another. Junius." — ^To tbs
great scandal and dishonour of our said presnt
sovereign lord the king and of liis adroinislrs-
tion of the government of this king«lom. To
the great scandal and dishonour of the naid |^
sent House of Commons of this kinirdom ; ni
also to the great scanilal and disgrsce of iks
said priucipaT oflicers and ministers of our nii

lord the king employed snd entrusted by
said lord the king in the managing and con-
ducting the weighty and arduoua aflairs of thii
kingdom. To the great disturbance of tbt
public peace and tranquillity of this kingdoSt
In contempt of our said lord the kioar and Ui
laws. To the evil and pernicious example of
all othera in the like case offemiing ; and abt
against the peace of our said lord the kiag
his crowu and dignity. And the said Attor*
ney- General «f our said lord the king, kt
our said lonl the kiug giveth the Court btft
further to umlerstand and be informed, that tbt
said John Ahiion again disrcKardint; the laws
of this kinii^doin, anil the public peace, i^ood
order and government thereof, and most unlaw-
fuWy, seditiously, ami maliciously, contririog
and intending by wicketl, artful, scandalous, sad
malicious suppositiims, allusions, and iniutios-
tioos, to distuib the huppy state and puUic
peace and tranquillity of tiiis kingdom, sad
most iiibolently, audaciously, and uMJnstl),to
8S|>er8e, scandalise, and vilify our said present
sover«*ign lurd the king, and to rif present, sod ts
cause it to be belie%cd, that our said lord tht
king had. by his measures of government, l<tft
the affr'ctions of his suhjecis in that part of
Grvat Briiain Called England, and in Irelaodi
anil in his doiniuions of America, and brongbt
tbe public affairs of this kingtlAm into a nKNt
di*itres«ei<, disgraceful, and lameniahle stall
snd condition. And also most unlawfully aad
maliciously contriving an^l miending to lepie*
sent, snd cause it to be be!ieie<l, that our Mid
lord the king had bestowed promotions and fa*
vours upon tiis subjects ol ihai part of kil
kingdom of Great Kntain called Scotland, ii

Errlereoce to his subjects of that |iart uf Ureal
Irit.iucalletl Enijland, and thereby to oealt
grouiHlless jealousies and uneasiDcases in bil
«iU«m'<»*kKc«aoffiogbwlal«raHid. id

S!7]

Jbr a LiM.

A. D. 1770.

[818

alio, most unjustly to reprpeent, and to canxe it
to be bciiered, that our said lord the kioir had
beatowfd pntmoiions oiid favoura upon one part
of bii said majesty's army, commonly called
the guards, in preference to another part of his
army 9 commonly called the marching re|p-
ments, and thereby to create soundless jea-
lousies, uneasiness, and mutiny, and desertion,
in that part of bis army called the marching
refi^iments, and to bring' our said lord the kiopr
idH his administration of the i^ofernment of
this kin^lom into the utmost dishononr and
contempt, and to poison and fnfect the minds
)€ his msjesty's subjects with notions and opi-
nions of our said lord the kinn^, bicj^hlj unwor-
Ai? of our said lord thektnsf, and of that pater-
nal love and concern which he has always
ihewed and expressed for all his subjects, as if
sor said lord the kinif had unjustly taaen a part
with some of his subjects against others, and
had unjustly prostituted the measures of his
government to gratify personal resentments,
and also thereby, as much as in him the said
John Almon lay, to alienate and withdraw from
sor said lord the kin^, that cordial love, alle-
gianre, and fidelity, %%hich every subject of our
aid lord the king, should, and of right ought
ts have and siiew towards our said lord the
king. And also as much as in him the said
John Almon lay, to move, excite, and stir up
tbesolgects of our said lord the king to insur-
Kction and rebellion, he the said John Almon
ifterwanN (that is to say) upon the said first
^y of January, in the 10th year aforesaid, with
fcfee and arms at the parish aforesaid, and
vilhin the liberty aforesaid, in the said county
sfMiddlesex, unlawfully, wickedly, seditiously,
•wl maliciously, did publish and cause and

Core to he published a certain other scanda-
, seditious, and malicious libel. In w hich
Mat taut mentioned libel of ami concerning our
nid kmi the king and of his administration of
the gnvernuient of this kin«:dom, and also uf
sad concerning the public affAJrs of this king-
dsm are containe4l amongfst other thin!;s, divers
Snoflalous, seilitious, and malicious msiters,
(that is to say) in one pnrt thereof acconling to
tfie tenor following : ** When }uu (meaning' our
laid lord the king) affectedly renouiiceiJ the
■aroe of En(^Vi»<hman, believe me, Sir, (again
■eaning our said lord the kin<;) you v% ere per-
iMiled to pay a very illjudifeil compliment
to ooe part of ynur Kuhjectn at the expejice of
■Mlher. While the naiives of Scotland (ineau'
lag that p:irt of Great Brituin called Scotland)
wrt not in actual rehellKni, tliey are nndoubt-
Mfy intitled to protection ; nor do I mean to
CMidemo the policy of giving some encourage-
ment to the noveliy of their afi'ections for the
HaoM of Hanover. I am ready to hope for
crery thing from ilieir new born z^^si, and
lUm the future Rteadine^s of their allegiance.
B«i hitberiu ihey have no claim tn your favour.
To honour them witii a itetermineil predilec-
ilB aod ronfidenre, in exciusiiHi of your Eng-
llh sohjectx (meaning the subjects of our said
IM the king in that part of Great Britain

vouxx.

caRed Englaod) who placed your family, and,
in spite of treachery and rebellion, have sup-
|M)rted it upon the th — ne (meaning throne) is
a mistake too gn»ss even for the unsuspecting
generosity of youth. In this error we see a
capital violation of the must obviotis rules of
policy anil prudence. We trace it, however,
to an original bias in your education, and are
ready to allow for your inexpeneoce.'* And in
another part of the said last mentioned libel ac*
cording to the tenor following : ** it is not then
from the alienated affections of 1 — I — d (mean-
ing Jreland) or A — r — a (meaning America)
that you (again meaning our said lord the now
king) can reasonably look for assistance ; still
less from the people of E^l—d, (meaning
England) who are actually contending for their
rights, and, in this great question, are parties
against you (again meaning our said lord the
now ktng^ you (again meaning our said lord
the now sing) are not however destitute of
every appearance of support: you (again
meaning our said lord the now kin^) have all
the Jacobites, Nonjurors, Roman Catholics,
and Tories of this country, and all S — 1— d
(meaning that part of Great Britain called
Scotland) without exception." And in another
part of the said last mentioned libel according
to the tenor following : <* From the uses to wbicb
one part of the army (meaning the army of our
said lord the king) has been too frequently an*
plied, you ^again meaning our said lord tne
now king) have some reason to expect, that
there are no services they would refuse. Here
too we trace the partiality of your (again mean-
ing* our said lord the king's) understanding.
You (again meaning our said lord the king)
take the sense of the army from the conduct of
the gnards, (meaning the said pari of the army
of our said lord the kmg called the guards) with
the same justice with which you (agnin mean-
ing our said lord the king) collect the sense of
the people from the representations of the mi-
nistry. Your marching regiments (meaning
the said other part of the army of our said lord
the king called the marching regiments) Sir,
(iigain meaning our said lord the now king)
will not make the guards their example either
as soldiers or subjects. They feel aod resent
as they ought to <lo, that invariable undistin-
guishing favour with which the guards are
treated ; while those gallant troops, by whom
every hazanSous, every laborious service is per-
formed, are \eii to perish in garrisons abroad,
or pine in quarters at home, neglected and
forgotten. If they had no sense of the great
original duty they owe to their country, their
resentment would operate like patriotism, and
leave your cause to be defended by those to
whom 3'ou (again meaning our said lord the
king) have laviKheiUhe rewards and honours of
their profession. The prcetorian bauds, ener-
vated and debauched as they were, had still
strength enough to awe the Uoman popu-
lace: but when the distaut legrions took
the alarm, they marched to Rome and
gave away the empire." And in another
3G

«19J 10 GEORGE III.

pari of llj« Mid last meolioned libel accord-
ing ID tlie Icnor fbllnwia^ : " Vou (again meBii*
iui{ our laid lord ihe now kioif) hate aiill an
linriouraljle part to act. Tbe ati'ections of your
aiil'jecis may slill be recuvereil. Dul belbreyou
(iijfaiii nieaoing; our la id lord the Duw king)
aulidue ibfir bcarts, vnii (again meaniiii; our
Baid lord ibe dow king) muit i^aiii a noble >ic-
lory over your oho. Discnnl those little per-
sonal reienlmeuU wbicb have loo long di-
rected your |iub)ic cooducl." And in nnolber
pari oflbe said lasl mrntioued libel arcurdioglo
tlie leoor following : " The people of E — g\ — d
( mean iat( England) are loyal lo ihe [louse of
Ha — ver (toeaujo^ Hanotei) not from n vaiii
prefeience of one lamily to aiiuiber, but from a
GouviclioD IballbeeBtablishmeiilof ibat family
was necessary to the support of iheir ciril and
religious liberties. Tbis, Sir, (again meoDing
our said lord ibe not* kin^) is a principle of al-
legiance equally solid and rational, Gl for Edk-
lisbiiieii to adopt, and well trortby yuurm— y's
(meaning majesty's) eucouragement. We cau-
not long be deludi'd by Dominal disliDClions.
Tb« name of Slunrl iteelf is only contemptible ;
— armed viib the sorereigii aiUboiity, tlieir
piaciplea were formidable. The prince wlio
imitates their conduct should be warned by
their example; and while be plumei bimsclf
upon ibe securily of bis lille lo the croivn,
should remember, that at il was acquired by
one revolution. It may be lost by anotber.

To the great scandal and dishonour of our
said preKCDt lotereiicn lord tbe king, and of his
•dminislratiun of the gotemmenl of this king-
dom. Tn the great dialurbance of the public
feace, order, auil gorernraenl of llii* kingdnm.
n contempt uf our said lord tbe kiog ami bis
laws. To (he eiil and pernicious examole of
all others in the like case olfending ; ami also
agHinsI ihe peace of our said lord tbe king bis
crown and dignity. Andlbetaid Altoriiey-Ge-
nrril of our said lord (be king for our said lord
tbe king givelh tbe court here further lu iin-
dersisudaod be Informed, thatlielbesaid Juliu
Almon being sucb person as albreiaid, and lur-
ther mosi insolenlly, auriiciounly, wickedly,
and maliciously conlriiing and Inlending as
aforesaid, aud ibe aonner lo accomplish,. per-
fect, Bid bring to died bia said must unlawful,
nicked, aud sedi(ious purposes, attetwui-ds
(that is lossy) |i pan the paid first day of Ja-
nuary, in Ibe said tenth year of Ibe reign uf our
gaid lord llie king, with force and arms, si ilie
pariMi aforesaid, within tbe liberty aforeuid, in
Ibe ciiunly aforesaid, oat of his turiber malice
towards uursaid lord Ihe king, and to bis ad-
niinislratioD of Ibe eoternment of Ibis king-
dom, and alio oul nf his further malice toward*
the said present House uF Coranions of Ibis
kingdom, a certain nlber wicked, scandalous,
SL-dtiious, and malicious lilx'l, iotitled Tbe
London Muncuro of Politics, Misi'ellanies, and
Lilcraturi' — did unlawfully, wickedly, sfdi-
limiiilV, and maliciously publish, and didcnnse
ftod p'racnre lo be published, in which said hbvl

Trial o/Jolm Almon, [891

last abnie menlinneil, be the said John Almi
bath by such wicked, ailful, scamjuloua, ti
malicious allusions, Bup|>osiliDiii, and iDsinu
lions as aluresald, most unlawfully, wickedl
and nialicioiialf aapersed, scandalized, and *il
tied our said preieDl sorereign lord the Iua|
and bis admmislratiun of the government;
Ibis kiogilom, and lialli thereby as much a
him the said Jnhn Almoa lay, endeavourei
bring our said lord tbe kiog and his admiiui
lalioo of (be government of ibis kingdom i^
the utmost dubanour, haired, and cnntein
with bis subjects, and to poiaoo and infect II
minda of his majealy's subjecta with nolio
and SFolimenls highly unworthy ofonrsaidla
the king. Aud liaib also by that means {
much as in him the said John Almoa lay) a
deatoured to alienate and withdraw from oi
said lord the king, Ibat cnidial love, allegiiiw ,
and fidelity which erery true and tailhful subi
jeol uf OUT said lord (be king ahoiitd, aod^
light ought to bear Inwards our said loid Ibl
king, and baib also by thai means (as moA*
as in him tbe said John Alinun lay) Hj
templed to move, excite, and slir up (benib^
Jectsofour said lord ihe king to a most unai
lural insurrection against our said lord tbekinl
lod in which said liliel last above menlioM.
he (be aaid John Almon hstb alto by laoli
.wicked, ar(ful, scandalous, and mnliciouf aDu^
1, sopposidoDB, and i ' ~

ly tradi

sent House of Commons of ibis kitigilom, *l
halh mosl audacioosly, wickedly, and labt
represented Ibe said preseol House of CoiaoM
as a most vile, profligate, abandoned, *ia
ed, arbitrary, renal, aud de(e&iable set of nM
and halb thereby (as much as in Itiiu tfaeN
John Almon lay) endeavoured to tillacdpi
seas the minds lii' all the people of this kmpb
with nulions and npiiiioos of the preaetit UN
of Commous highly unworthy of ibe a
present Houue of Commons, anil bath al
(hereby (sa much as in him ibe said John AIb
lay) alleuipted lo bring tbe said present Bol
of CoQimona into the utinosl CDOlempI, Italn
scorn, and dialike, and by ibal mean* to mat
and diminish Ihe public credit and aulborilyl
thai House, to Ihe great scandal and rikht
ofour said lord the king and uf bia adiailu
tiou oflbe goveniinent of this kingdom,
also In the great scandal and diilmiiour of lb
auid House uf Commons. In conlrmpl of M
said turd ibe king aud bis laws. To the gnl
distui bgutt of ibe public peace and Iran^Millfl
nf this kingdom. To Ihe evil aud pemicli'
example ofall others io the like caseoffendi
Aud also againsi the peace nf our said bird tl
king bis cruwn and dignity, Wbereupoalj
Bind Alljiruey General uf our aaid lord ll
king who for our said lord the king inlli
behalf proseculelb tvt our said lord l'
king, prayelh the cousideraliun uf the MM
here in Ibe premises, and ibHt due pioccs) I
luw may be aiiunled agsinsl hiuj tbe said Jo)
Alaiun io ibis bcbiilf, to make biiu aiisffer

sei}

far a LihtL

oar said 1or«] the king toacbing and concerning
tbe premises aforesaid.

To which Information tbe defendant pleaded
Not Guiltj.*

In Easter term following, a Special Jur}% at
the instance of the Attorney General, was
stmck in the Crown-office, befure the master ;
and the trial was appointed for Saturday, the
td day of June, 1770, being the sittings after
term.

* Informations for publishing the same

Gper were at the same time filed against Mr.
eory Woodfall (the original printer and pub-
lisher of it) in the Public Advertiser of the 19th
if December, 1769 ; Mr. John Miller, for re-
^rintiDH^ it in the London Evening Post, pub*
itbed in the evening of the same day ; Mr.
[^iMrles Say, for reprinting it in the Gazetteer
if the 20th of December, 1769 ; Mr. George
Robfnson, for reprinting it in tbe Independent
Dbronicte of tbe same day ; and Mr. Henry
Baldwin, for reprinting it in the St. James's
[?brooicle of the Slst of tbe said month. And
ihhough Mr. Almon did not sell the London
Muaeum, (which is a monthly magazine) con-
teinioir the said psper, till tbe 1st day of Janu-
■ry, 1770, (according to the information) yet
be was brought first to trial.

In one of the public prints, the following ob-
servatious were nnade on the Attorney- Gene-
ral** conduct in this trial, and the subsequent
trial of Mr. Woodfall, the original publisher.

** It may seem extraordinary to some, that
apoo Mr. Woo<l fa IPs trial, Mr. Attorney-Gene-
ral should employ the greatest part of bis ha-
nagoe in a justification of his own conduct:
what hail the jury to do with his motives P and
how ridiculous was it in Mr Attorney, to desire
iselear up his own intentions to thejury, whilst
be was instructing them to pay no regard to,
tad to have no consideratiou of, the intentions
•f the defendant.

** Besides, Mr. Attorney does not tell us who
Inid accused him, or of what be was accused.
It is my business to supply his omission. His
•WD conscience smote bira for the trial of Mr.
Ahnon. Mr. De Grey, member for Norfolk,
tbe Attorney General's brother, had im|*u<lenlly
tod ignorantly bramled tbe electors of West-
Aioster, for their petition to his majesty, as se-
ditious and base-born booksellers and me-
chanics. Mr. Serjeant Glynn defended the
(lectors, and reproved Mr. l)e Grey for his in-
lolefice. [See 16 New Parliamentary History,
#06.] The electors of Westminster publicly
ivtamed their thanks to the serjeant, and
ittoogst them Mr. Almon was strenuous for
iNse thanks, perhaps the most strenuous, be-
msebe must be sensible, from the part he had
hfarc takeo in the petition to the throne, that
' ^ term * bake- bom bookseller,' was especially
^i^mA at hini. This was Mr. Attorney Gene-
^% Motive for selecting Mr. Almon from the
kt only aora the lett«!r» ai every

A. D. mOs [828

Coumel for the King, — The Attorney Ge-
neraly the Solicitor General, Mr. Morton, Mr«
Wallace, Mr. Dunning, Mr. Walker.

Solicitors. — Messrs. Nuttall and Francis.

Qmntel for the Defendant, '^yit. Serjeant
Glynn, Mr. Davenport.

Solicitor, — Mr. Marty n.

other bookseller bad done, in a miscellaneous
magazine, after it had appeared in all the news«
papers. Mr. De Grey, member for Norfolk,
under the shelter of privilege, pours out abuse
upon an English elector, for exercising his
franchise. If the man resents it only by tell-
ing the story, and returning thanks to those
who defend him, his brother, Mr, Attorney
Genera], by virtue of an unjust, assumed
power, takes the first opportunity to ruin him,
ex officio, by filing an Information. Mr. At-
torney General, no doubt, bad another motive
for wishing to try tlie cause in Weatminster
first, before tbe original publisher was tried in
London. Tbe juries in Westminster, it is well
known, are generally, for very good reasons,
more complaisant to the court than tbe Londoa
juries : even tbe foreman of Mr. Almon** jury
has a place in tbe War-office. On Mr. Alroon^i
trial, tbe Attorney General declared, that he
should certainly have tried tbe original 4)ttb-
lisher ^rst ; that he wished to have done so,
and was only prevented by an affidavit of tbe
sickness of the original publislier.* Mr. At-
torney knew, that the original publisher had
never pleaded sickness, and therefore expecting
now that this falshood would be objected to
biro, pretended not to know the name of the
man he was now trying, and against whom he
had himself filed the information ; he calls him
Mr — what's his name ? When the by-standers

told him Woodfall, " Aye, says he, Mr.

Woodfall." This trick is too gross to be ex-
posed farther than by relating it.

** Mr. Attorney General pretended, that, in
the objects of prosecution, be endeavoured to
make a distinction, and to pass by those whe
were poor, or had large families of children,
&c. Monstrous declaration! The two first
persona whom he brought to trial, Mr. Almon
and Mr. Woodfall, are far from being rich, have
families of very young children, the support of
their families defiends entirely on their own
daily and unremitting industry in their trade,
their places cannot be filled up by others, and
imprisonment cutting oflT the only source of
their supply, must make them poor indeed.

* Several persons present on the trial, think
this part of the Attorney- General's speech more
accurately stated here, than in the short-hand
writer's notes. But the editor did not chuse to
alter the manuscript. However, the obvious
meaning is the same. And, if it is wrong, the
Attorney-General may easily exculpate him*
self, by app^^ling to the notes of Mr. Gumey,
who took this trial in abort- band for tbcTrea*
aury. Orig. Ed,

623]

10 GEORGE UI.

Snctii. JtiiLY.

Leonird Mone, of Queen AiiDe-itreet, eiq.
Hertifrl Muckworlli. of CiTendisb-iquBre, eiq.
Jobs Aixlerrap, Dt tIesricU>-«treel, Ct««nditb-

wjoarr, e»q.'
John Goutil, of Harl-itrecl, e»q.
Jnaiah Hulford, Soiilharaptou-ron', ctq.
CbristO|iher Lrlhirulicr, of Ihe Mme, etq.
Solrert Gary, or Hampatf ad, e»q.
Oerranl HoiranI, of the lame, aq.
Benjamio Booth, nfUaeoWi (DD-Gcldt, Mf.
Gm^c Krnt, of Tedilin^on. est].
Edward Lo* ibond, of Hampton, caq.

Tttlaiaau*
JoliDSlill>eIl,eon>-cbuidler, ofRuMcll-ftrMt.

Hr. Walker opened by rewlin^ the record.

After him, If r. Attormt^ Cn«i-«/(Oe Qny)
prvcecded ai foliowi ;

Hay it |itcMe your lordahip, and yon gentle-
Men of tlie jury. I ha*athon^t it my duly
to IwiiiK before you a publicaiion of thia libel,
a publication whicb 1 believe would be itermit-
ted in on civilized country in Ihe worM, to pax
Moooliced or unpunished. The law* uf this
oountry protect Jiaiababitaota, — Ihecbaroeterof
•very aubjvct ; the public peace rnjuirca it. In
prii|iorii<>n a* men's charactera riae in the world,
and are Hxtril with public icovernmrnt, Ibe de-
famatory wriiinci affecting their eharactera
and conilnct, tendi'iH more to break the'puhlic
peace, which it intimately conntcled with their
coaduci. But the f^at otden of the atate,
and the majefly of the throne, can never be the
•nbjrct of fletraction of libela, without iojiiHng
the iiulilic peaea in the greateU degree, with^
nut breaking those bonds which lie men to^-

nrge him against any parlicninr publishrr.
Come forward, and t^H the world, ujinii what
inoiive Mr. Almon was liniclcd out, and upon
«hat principle of justice ne was tried hrst, —
for sellioe only.

" Mr. Attorney General said, as for who was
the author of Junius, that he could by no
means discover, that remained an impenetrable
•ectet. Mr. Attorney (ieneral never demiud-
wl Ihe name of the author. He dues nut wish
to prosecute Ihe author. He follows lord
Nansfielil's plan of iirui ecu ting publishers and
booksellers only. His Inrdihip has frequently
Tecomraenited this method, even from ihe
bench. He knows that publishers anil book-
sellers onl^ exercise a trade, and have no other
iDOLivep or intenliona than to procure ihr emo-
luments arising from their trade. Multiply
therefore prnsvcutioos on Ihe trade, anil you
will effectually klup publication." Orig. Edit,

* Only eleven of Ihe Special Jury attendinif ,
tba Court ware obliged to have rccvurae to Uia
Common Jury, and the name of the above
Tita«iii4D WH drawa out of the box. Orig.
E£ti<m.

Trial of John Almon, [8M

ther.andexoilioff tbeauljactataaadilkn. Tb
charge that is brought acaioat tba difaadaal
with renrd to this publication, eDnlaias tws
propositions : the one, that the pidiltealiaD con-
cerns the king ; bis administration af f*n»>
of puhlio affaira of tba natiaa ; tb*

Houic of

hkewiKC cotilaiiM another propoailjM, ih^tks
defendsBi published thia writing. — TbMS m
the two paints, which it is nccaanry Ik
ihoM who aupiiort the iafonaatieii, to pMM M
your satiifiiciiDa, and that is all tliai i» Baav-
*ary fur them tu do. la this particular ia-
Blsnca, there i« ptrbapa leaa neoaaaily la tnt-
hWyou much. bonausetbeaiUbaraflhiapafv
baa lefl very little to iosinuation or HffariiMi
the mode am) shape in which libela an wtitUa,
dun'i in any iaiitancc vary ibe afieace <f fig*>
raiive eapr«siiati, wbioh is as iotelllKilila m *
simple one- — Inwical ezpreaaiooo will daanih
and expTM* the intention of the write tr
speaker, se clearly aod plainly aa dirccl aMk
Whether they do so or not, wh«i« IbajM
innicel Of liigurative, depvadt upon yow Mt-
siderauon, liom the circurostaooea of tba CM,
and the evidence that ic laid bafwe yoiL If
there arc aalerisms, initial lettera, or tRWa-
lions, Ibcy tniy throw no disguiae on tba BNi-
iog; if they do, they disappoint tba tiilMliw
of the writer ; nor are rourls of Justice so pn-
cirloutly Ibrmed, to mixtake Ihe mcaninf rf
what all the rest of the world wotild aadw-
stand ; aod to abut their eyes against lU,
which is ptsin to every body els*. All thit I
have to do at present, will be to shew, that tte
expressioos used iu thia paper, do eonearalhs
\uBg; his adminiilratino M govcroinaiil i ibl
puUio affaira of the nation ; the ommIm
of the House of Commons ; and the pBbb
officen of sute.— In ordtr to thew this, it aill
be necessary to mention to you, some few rf
those pasBages, the whole of whicli you bi'e
beard sireaily ; and 1 think thai it is impowHt
for any man (ii iluubt a miiuKut about lbs
meaning of the writer, and the appli(»tioa of
the expressions which he baa usrd. Thai I
may lie surr 1 do nut err, and put a alrangtt
sense on the word* than the writer biiuaell bsi
used, I will endeavour as fur ss I can, in tkl
pasHsges that are alluded tu, to iiieotioa lbs
ver) trnns of the paper. Can any man dmikl,
whiit was the luenning of ihe writer of this
paper, when he aays, " I am tpeakiag of ihs
errors of his eilucation, the pe'Uit.'t><us kwoM
of his yuuih, the pHriiaiiiy nl bu underttaa4-
ing ;" and which understanding ia aaothw
place he says, " he haa nnt io oite mmnwl
of his lile cxusulted; that he was never a*-
quainled with the language of IrDlh, tiH ha
lieard it in the complaints of bin peopla; tW
bo had descended to take a «har« in tba )■>**
real of particular peraoni, and io tbe fatal ■»-
lignily of their paasiona : he oalla apon bini W
bear with firmness his own paMi<iM and pi^
dices of personal reseotmaM, witb wbiih bt
haa direeled bis pitblic cNdiul, wd Iw afvlr

ses]

Jar a LtbA

A.D. ma

[m

cluirfet liiiD wkb a oonlinunl TiolatiiMi of (he

1 iriU not take up your time to prove to you
Ike apfUioatioo of th^ expressioas to the king,
heeause I will i»ot do your uaderttaodiDgs the
4mcrti6k to aiiMKiee you hate a DioiDeiit*8 doubt
iifioa that-v-IYheo 1m speaks of the great as-
aenitbly of the oatioa, be says they sre people
who eansifler their Uoty to the crowo, being
repreaentatives of the people, as their first
wigatioQ, aad he srraigna them of feoality.
When he speaks of the public affairs of the
kiqfdoiii, be says, <* that £nglaail was sold to
Fraaoa, and that the king at liia saase tiase
was bfliurayed ; tliat he was sacrificed to the
paasiona and prejudiees of otheia ; that the mi-
■isiars hate reduced him to sueb a aituatioa,
that be cao oeither de wroog without ruia, aor
ri*^ht without affliction ; the Irish are plunder-
ed and oppressed ; the king has united wiih
bis serfants against the Americans, whose af-
fcctieie are all united ; the English are actu-
ally contending for their rights, and are par-
ties agaiiikt him in the quarrel.'' — These are
aome of Uiose public affairs which he thus re-
Tilca» traduces, snd misrepresents : and, as if
Ibis- were not enough, he endeavours to set in
•pfeaitioB, to dis>unite, and to irritate and set
Sf^nsl each other, the different dominioas he-
lanmg lo the crown— ^different denominations
AM dMriptioBs of men in the same dominions,
aad different parts of the same professions ia
tb^ saase nation ; he bids a part of the army
ftd and resent that they are perishing in gar-
viMBS, or pining in quarters, negteded aad
Ibrgotteo. If one should ask one's self, wint
mM be the motive of this man, and to what
pornoaa was all this ? couM he thus mean to
apply these expressions to the puUio affairs of
Iba Kingdom — to the House of Cktmmons— to
the kiatf 's ministers — to the sovereign himself P
Why ahouU he do it ?^What tlie motive ?—
WhoiahaP produce himt perhaps we may
pmm !— bat there is no country in the world,
Ihal does not at some times (and no country
Bore Ukely in the world than a country of free
Kbvrty lo) produce men who act from various
Mitives; their mc»tives are different to those
vbo are to judge of their actions ; their actions
He what are to decide on their conduct—
Whether the snonynM»us writer ni this paper,
Md those, who by publishing support hiui, act
fraai any desperate situation of their fortune—-
from any malignity of heart — from any per-
vtrseaeas of understanding— from a low and
•ontemptible ambition of ^ing dbhooourably
diftiagnished — whatever the meaning may be,
that ia net now material for your consideration.
^It is sufficient that there may be such mea
is the world — the question now before you is,
vbelbcr there is now such a man P the pre*
•eat question is whether the roan now com-

eSM of, has actually published this paper P
if bis views are to be considered, if lie bad
Ibaa, aa he hoped, dis-united every part of his
■aiasly's doninions, and leU them abandoned
■addaatrted: what foUows, (if it was nai from

the impasAbility of any man*s coBceiving the
least foundation for what was said) should ra«
ther be suppressed than repeated : — Say to what
all this tends ! see how undisguisedly, how
expressly, and in words he has presumed* after
he has disunited and provoked the people, to
provoke and irritate the sovereign ; he says^
** the drcamsunees to which you are reduced^
adfliit of no compromise with the £ugti'sh na-
tion ; all qualifying measures will disgrace yott
more than open violeni*e; supposing it pos-
sible that no tifttal struggle should ensue, yoii
determine at once to be unhappy ; for an Eng-
hab king bated or despised, must i>e unliap-
py." — ^This, said of a roan, such a man, thai
there is not eae among us, whose heart would
not gk>w to think, that be had such a son, or sueb
a father ! — " It is barely possible that a fatal
struggle should not ensue !" it ia but a supposi-
tioa! It is but a possibility ! What is that fatal
struggle but sedition, or a civil war ? aad if
that does not happen, then you, a bated aad
despised king, must be unhappy ;-**' but if they
should BO longer confine their resentment to a
aubmissive representstion of wrongs ; if, fol-
lowing the glorious example of their anoestots,
they siioukl no longer appeal to the creature of
the constitution, but to that high being who
gave them the rights of humanity, and whose
gifis it were sacrilege to suirrender ;'' — aa,
then, the suliject has susisjned wrongs ; their
rights have been vkdated ; it was glorious in
our ancestors, to stand against the crown, whea
thev had received wrongs, and their righta ware
violated ! then, it is glorious not to appesi to
the sovereign, the creature of the constitution,
but to that high being, who gave them the
rights of humanity — here be craees it ; " it ia
not merely troscbery, it is not perfidy, it ia
not— but, it is sacrilege, to surrender thoaa
righta which have been thus injured ;" — bul»
as if this wouki not do, be reminds him of tba
Stuarts, and bids him remember, that as tba
crown was acquired by one revolutimi, it may
be iMt by another. — And as if that was aot
enough, haviog said that the rights of the suIh
ject were violated, and their wrongs thus neg-
lected, be concludes the whole, by declaring,
that the English dare ojienly assert their rights,
and in a just cause— a just cause ia, where tiiey
are sustaining public wrongs, and their righta
are violated, then the English are lo meet, aad
are resd^ to meet.

This IS the Isnguage of this paper, this is tba
stylo of Ibis desperate man— the defendant ia
charged with publishing it — What defence can
be anticipated r What can we suggest to oufw
selves to bo the ground up<m which any de>
fence can be made to this information P If it b
said, that tlie defeiitUnt is not the author ; b
then the author «»nly to be punisheil P Is a maa
who writes criminal, and be who disseminatea
the poison, innocent P What signifies all tba
wi iters in the world, if they are confined to
their garrets, and caa*t find publishers ? tbay
vukj write to eternity, and nolwitlieiaadiDg aU
theur maUgaity they will da aa damaga. I am

827J 10 GEORGE III.

persuaded, that (be man who introduces to the
public the paper first written, is full as crimi-
Dal as the writer. You will then affect the
liberty of the press ! — The liberty of the press
is as sacre«l as the coosiitution itself, and is an
essential part of it, so is tn^ liberty to move as
I please, to say what 1 think, and to act as I
think ; but I must not employ my tongue, my
hand, nor sword, to the prejudice of another
man ; nor must you use vour trade to the pre-
judice of another man ; hut he is not the first
publisher perhaps! the first paper was pub-
lished on the 19th of December— this was ad-
▼ertised a few flays afterwards, and published
and sold, I believe, on the 1st or 2nd of January,
1770. It is not in the power of any orfficer,
whose duty it is to briniif into execution the
public laws, to impeach, or to arraign offences
of this sort during the intervals of the terms:
or when no grand jury,* or courts are sitting.
I thought it my duty, and I think 1 should
have deserved to have forfeited much more
than my office, if 1 had been wanting in it.
With as much dispatch and expedition as 1
could, 1 thought fit to take public notice of
these publieations.f I believe there is one
person Illness has been the occasion of his

* The Westminster grand jury, before
whom this matter was properly cognizable
(the defendant living in VVestminster) sat on
Wednesday the 3rd of January, and continued
sitting the 4th, 5th, and 6th days of the same
month, all which were within a few days af^r
the publication. Orig. Ed.

f The whole of this assertion is utterly false.
The paper was published, or rather the London
Museum, containing the paper, was sold at
Mr. Almon's, on the Ist day of January, 1770,
and a bill of indictment miufht have been pre-
ferred against him to the grand jury of West-
minster, by, and before whom this matter was
properly cognizable, on the 3rd, 4th, 5th, or
6th da\s of that mouth, for upon each of those
days that grand jury was sitting, which would
have been *' taking public notice with as much
disp-itch and expedition as be could,*' and
would have been likewise the regular and legal
mode of proreeding. But the fact is, Mr.
Atiornov-Gi-neral did not chuseto prefer a bill
of indictment to the grand jury. He knew
very well that every syllable of the offensive
paper was true, and lie was afraid the grand
jury would enquire into the motives of this par-
ticular pnrseculittn. as well as into the contents
and \erjcity of the p»|ter itstlf. The grand

Trial of John Almon,

[828

not being brought to a trial now — Others are
now depending.* This person published tbii
paper. — I would not aggravate on one side, or
extenuate on the other : 1 only meao to explau.
The paper had been published 10 or 1 1 dayi
before this was published. I do verily bdievs
there was not a man in the kingdom (I aa
sure not an honest man in the kingdom) who
read it, that did not take offence at it, — the ex-
clamation of nuinkind against it was general ;
yet in that situation it was publish^ by the
now publisher. 1 mention these circumstMeei
to excuse, or rather to explain the coodoctflf
those who have carried on these prosecotraai.
The facts I have mentioned will be proved— It
remains then for vou not to punish, for that it
not the present subject, but to enquire whether
.he defendant has committed this crime or not

William Bibbin$ sworn.
Examined by Mr. Sol. Gen, (Tbariow.)

Do you know Almon*sshop in Piccadilly f
—I do ; a bookseller's shop.

Did you at any time buy any paper there or
not ?— I did.
■'■"■■■ ■ I i^—i^— — ^—

* With an affected air of sincerity, there ii
great art in this passage, which indee<l caosit
be made appear so strongly upon pa|>er, uit
did by the emphasis in speaking. By tlie wonb
* one person,' and * others are now de|»endio^,'
Mr. Attorney could not possibly mean any tliiap
but the original publisher, and the re- publishers.
Now the fact is, that here ai;ain he must know,
he was advancing a falshood in which he cooM
have no other desigfii but to deceive the jury ;
it being very natural for the jury to ask one
another. Why is this man brought to trial be-
fore the original publisher ? The Attorney -Ge*
neral, with great caution, takes care to satisfy
them upon that head. He gives them to uo-
derstaud, that the original publisher is ill, lod
for that reason his trial has been post|»ODe<f.
The baseness of this part of the business would
exceed the possibility of belief, were not mioj
persons well acquainted with the notoriety of it
Thereat truth is, the original publisher was not
ill. On the contrary, lie was m p;.'rfect healUi,
and attended upon ibis very trial, in consequence
of a subpoena on the siile of the prosecution, of
which the Attoniey General could not be igno*
rant ; and tbesubpccna was so particular, that
by a note on the back of it, he «vas ordered to
bring with him the original copy of the adfer-
tisementof the London .>]useum, inserted in bit
|iaper. What pur(>osethe original copy of the
advertisement was intruded to answer, it is in-

jury art> s\\orn * t.» d.liLTt fitly enquire and true

presentment make,' and not lu find auf^in^t any i possible to say, as the printer was nf>t exi-

pers«tn for haired or malice. And ihe paper ' mined. But the advertisement was shena

beiui; notnriiHisl\ true and the prosecution ap-
parently m'ili(*ion<, he durst not trust the
charge wiih a grand jury. But he waiteil in
secret tilt Hi!ar\ term, which did not bei^in
till the SSid day of January. 1770, and then
fiie«i an iutbrmaMnn, not in consequence of a
motion made in open court, but privately, that
», ex officio^ io tke Crow ■•office, Orig, 'Ed.

alN)ut to several persons, snd it appeared by a
note at the bottom of it, to have t>een inserted
in his paper, by the order of Mr. J. Miller, the
publisher of the Loudon Museum. Like sob-
|Kenas were al<io seut to the publishers of the
Gazetteer and 8t. James's Chronicle, but the
Attorney General tlid not think proper to exa*
mine an jf of them. Orig, Ed,

869] Jar a Uhtl.

Wh»t diJ you buy ?— The London Muaeuin. j
[Proiluced in cnnri ;)

li lh»l llie very book you bought f — Yes ;

What day did you buy it ?~-On llie first of
January.

SerJ. Glynn, lie «o |;ooil as 1o let us know
nlio you are? — B'ibbins. lain a meiisctjger

^he Paper was here read.)

Sol. Gen. 1 shall call a nitness, in order to
ihrw, that Alinon was one of lheun);in*l (luh-
fuliers ; or, ore of the jierBons lo » liom the at-
Itnlion of the jiubhc was called in that cha-

Serj. Glynn to Bihbins. Ynu are a nies-
■cngpr to the (iress, iileuse to le!1 ub what that
office isf— ll Is niy Winess lo buy all potiii-
cil paniphUrs,

Have you o salary for that pnrpose F— There
ii a talary iiinexcd lo that office.

Then niihoutsDy direction nliatevttr, nheu
a political pamphlet comes out you are to buy
il?-Ve8,

You IodKp'I upon Ibis as a political pampli-
!ei;-Yes: I diS.

Did you buy all the Mnseums that were
puUishetl, or only this?— I bought them of the
(lubliiber mentioned in the aitverlisemeot : I
hite a staoiliriif order ; and oerer fvaii for di-

Doyoii buv all nia(;AxineB and papera ivhich
cMiieoutf — If any iliing pariicular h adfer-
iiv^ to be published in ibem, then J buy

I Iwlieie Junius was adrerlised in all the
■q^aziaea : di<l ynu buy all ihe aiaga/incs f —
iHlnTe jou ate mistiiken.*

Tbeo the liicl is, you did not buy all ihe lua-

* The wiltirss lakes as g;reat a latitude as
tbc Attorney General. The letter of Junius,
lar ibe sellmx of which the wilneas informed
■taiul the defendant, was prioted in mml LI' not
w Ibe maijinxines, published In London on the
Ul day of January, 1770. The tact of llie
paUicaUoo of these periodical pamphlets is
nK|iM»iiauable. The publishers of them are
in men who act in the dark, or who live as if

Swere afraid to be known. Their names
places of abuile are affixed to tbeir bookE>.
Onetimes it happens that other booksellen'
°>in«i, besides the real puhlisher«, are placed
't Ibe adrertisemenls, but Ihe first name '

IJI the usual and general accepted
'ted, where there js no puhhsher'a oame lo a
w»k or pamphlet, or where the name ii ficli-
tious, it may be rigiht to deem the first man a
publisher, who may he found sellini;. But
Maimon»en«ereioUsaltheidcaof pro'eculing:.
Ud the first too ! a seller only ; «lien the real
trinler and publisher may be easily come al I
Vr,g. £</.

A. D. 1770. [830

gazloetF — I bought all that 1 knew were pub-
lished hv him.*

I would be glad lo hare il understood, whe-
ther whal you do, is done from the idea you
haie of the duly of your ofBce, or wheiher
you are so directed?— From ihe idea of the
duty of my ofGce.

Have you kept them eTersince ? — I deiiier-
ed them to Mr. Fiancis— and he delivered
them 10 meag:aln.

How did ynu know it ag^ain? — 1 marked it,
and know il to be the same.

Yuu hate a salary for ynnr office ! — I am
only an acting messen^r.

bid you buy Ibe Luadan Magazine T-j- — I
did not.

and he dclifered it to me,

Natlianicl CroxJrr sworn.
Examined by Mr. Mvrton.

Did you buy any Lumlnn Museum, and
when at ihedetendaul's shnp in I'lccadilly 1* —
I did , this is it — (pruduciug it, and the news-
paper produced)

l« tliat the adverlisemeni of Ibe I»nd<>n
Museum?— It in.

Is it that which gate riselo your buying the
paper? — Yes, il was.

Lord Mantfield. It is capable of proof, if ib^
defendnnt put il m,

Mr. MvrloB. The last n ilness said Ihat ba
bought all papers of the pnlitica! kind.

Lord Mamjitld. To that he has given a
proper answer.

lilr. Davenport. What ore yon? — Crawder.
I sunply the (Gentlemen uf Ihe Treiisury with
all polilical daily publicalionn.

Then you are a !<orl of mmeuger, employed

* There was a report, wliich this etidence
aeema lo confirm, lbs t informs tions were drawn
a^inst ibe defendanl, for selling, on the first
day of January, 1770, the Freeholder's Hiiga-
zine, and the Town and Country Maitasine,
each containing Junius'* leller; which, pro-
bably ihia evidence bought at hi? shop the
same morning. — There is nut ndouhl, that some
copies of almost every monlhly inagaaine are
sold at theshopof every bookseller iu lhekiii<;-
dum ; but can il he right, or ia il reconeilalile
to any principle of justice, that a man should
be prosecuted for only seliini; a book in the
course of his trade, wbicli has been primed
and puhlished with impunity, by another,
whose name is mentioned upon the title page?
If the princlpte upon which such a partial pro'
seculiou is instituted, be good, then ibe minii-
ler, or, which is the same thing, the king's
Attorney General, who always acts by bisdi-.
rections, can at any time prevent any particular
bookseller Irom Ib'llowiug Ills trade, and by thai
uicans ruin hiro. Orig. Ed.

t Juuius's leder waa in lh« Loud'iu Msga-
zine. Oris. ^•'-

831] 10 GEORGE 111.

b^ the Treasury to select all the papers they
direct yon to get ? — Yes.

You (Jofi*t know any thing of the beoksellhig
trade?— No; 1 do not.

Did they direct you to go to any particular
shop? — No.*

\Vho delivered that pamphlet to ymi at the
shop f— A young man ; 1 cannot tell who he
was.

What did you ask for?— I asked for the
London Museum, and somebody g^?e me one.

Seijeant G/vran. May it please your lordship,
and von gentlemen of the jury, to favour me
in the present cause in behalf of Mr. Almon :
and gentlemen, out of the concern that I have
Ibr my client Mr. Almon, it gives me a (leciiliar
satisfaction, that a cause of this nature, affect*
ing him so greatly, comes to be tried by gen-
tlemen of your character. Gentlemen, Mr.
Almon is singled out for a prosecution, as the
publisher of a paper, contained in a certain
pamphlet that comes out monthly, and is called
a Museum — for the publication of a |>aper that
hath singly appeared in all newspapers that
have been published. The original publisher
well known, and avowing himself. I should
have thought that Mr. Almon, upon the evi-
dence of a man, who calls himself a nies-
senger to the press (an office, that should
have expired with that odious system of laws)
—upon the evidence of that man, finding this
book upon a stall, or delivered to him by a boy
in the shop, that Mr. Almon should now
atriisrgle against being convicted of an offence,
which would bring upon him, undoubtedly,
very severe punishment. — Gentlemen, it is (in
my opinion) a question that goes very far be-
yond the person of Mr. Almon. If the pro-
secutor had thought proper to bring before
you the known and avowe<t publisher of this
paper, in that case, the question of the guilt
or innocence of the paper, would have been
material for your consideration. As Mr. Al-
mon is now circumstanced, if the paper
was mpritori(»u8, the merit could not belong
lo him. If on the other hand, the i>aper is
criminal, the criminality cannot be imputed to
him. This offence has been dcscrilied in the
information, and represented afterwards by Mr.
Attorney General, in the opening. Mr. Attor-
ney General has said, that *^ it was published
in the malevolence oC the publisher's heart, to
vilify and aspente the king npon tiie throne ;
that it was done with an intention to excite
•edition and destruction in the kingdom, to di-

* This witness was the informer against Mr.
J. Miller (who is tlie publisher of the Ltmdoo
Museum) for printing and publiMiing Jiinius's
letter in the London Evening Post. Is K not
extraordinary that he shovld go to Mr. Miller^
near 8i. Paul's, fiK the Loadoo BvMOfc Pmc ;
•■d tbeui of biv o«ni MOMnAi s» S" ■>»

Trud of John Almond

PS8

in PSccMliUy, Mi
wlut h» hMI k

vide OBO part of his majesty's sulgeels afttost
the other ; and pursuing that malcirolciit ia*
tention thot prompted the author to excite St*
affection to the king, has taken that odious aiid
detestable part of exasperating the king agaiaift
his subjects." — To whomsoever that inRpati-
tion belong, it is certainly the grcoteat offeBCt
that a 8ub|ect of this kingdom (oe bo who be
will) can possibly commit : gentlemen, whe-
ther that belongs to Mr. Almon, or to the writer,
I must submit to your consideration. — ^WbetlMr
it belongs to the other, is not now the sulMct
for your discussion.— Gentlemen, I abouldke
very unwilling, as 1 have sUted it toyo«,ls
have it totally immaterial ; as I am uninstrad*
ed by Mr. Almon, who knows nothing of tUi
paper, either to defend it, or to submit to tbe
crimiiality of it. As I have no instruetioai,
on the subject, I will not tronhle yoo vitk
many observations: whenever the real pok-
lisber comes to be tried, the jury then coocen-
ed will consider and decide on the qneeties.
It has lieen said, that this is " to vilif?, ud
asperse tho king himself.'*— The highest ef-
fence that the rancour of the most malevoIeDl
heart could ever conceive ; hut is it such ? Ii
it to vilify and asperse the king? Was it the
opinion of the drawers of the information tbil
it was so ? I am of opinion that it could not be
so ; I am of opinion, from a single omisMi,
that that was not ihe construction the dnoer
of the information put upon it. 1 have alwayi
been led to observe, that the wortl * fabe' biS
been inserted in these informations— ever? sse
of them. — IJow happened it to be omitted fiere?
If this conveyed personal reflection on tbs
king, would not the drawer of the informatiea
have been prompted, for the honour of the
king, to say that it wasfalse ?— I do say it, tkil
if there is a single word dero};atory to the
personal honour and virtues of his majesty,
It is false in the highest degree. — 1 say,
they should have said it was so, — They caa-
not now, with decency, contend that the
king is personally reflected on, because tbey
have not undertaken to falsify the mstter
of that. — There is another observation that I
would submit to you ; and 1 don't mean ts
submit it to you as at all preventing yonr
going into the' construction of this paper.— It
was only given me to contend, that the pub*
lisher ot'thi.4 paper is innocent : but 1 must take
some hints from what has been suid, and sione
doctrines that have been laid down. I take
notice of it, because on future occasions it wil
concern otliers, and because (in mv opinion) it
concerns tl»e public. I do agree, tliat |>ersi»flal
imputations on the king can never he defended;
but, I do assert, that the freedom of |M>KiKal
disciissioQ is of the utmost consequence to sS
onr liberties, and I do insist upon it, that Ihe ac-
tions of this government may be canvasfeJ,
freely, and consistently with the duty of a goal
' wUmiI; and then ought always lo bedefctm^
Tho linig*8 hand must be employed totkl
is M impotatio* to tho kmg loeeMort

r gofornmrnt,*— In oo mbio is tbi

^i!' r. I.Jk"^^

.< T^ f^^^

X<^l

SI! if im'_' aiiiniai'*r^»t*i m. ?. wt\ru

V ftiui* xtiii: :i»«T( ifr I, rnustirui'ruiii

•n ti»t iMii^'t:- II* :iie rrp»-i. Inii;^ sp

nnife wiKT? — — ^-^^ «.« itui: r*

u. nc' r'lVf :iitn iT.';rniii:«nr. 'Hmn^

iatef\ IT' prfiieK r.C»in*« il:if <*'*»"'J''nf.

1 r V ,1. K- %>iif»r » i»ia p:.!iji »>f i
n ibt riuiiitsiit? — Mr. Alrr'ni i* & Srmi>
i:v€* 1 i»rIi»Te ir. Pim. I'llv. iT.iix,*!!
: cLl-c*- fcrt:ns: h.m :*. ih^'baiuc ihif
1 Li*f:»': IfskcMil T»i'J\ ihTr.k. tor
ie c: :ljfr broriur of ihe U«js. !<»r iho
At^t-ry aika. tuai is b\ no imans prA|<r
eio c.>c« .a a man upitn : I hart- aluay*
t, that 10 \\ie f*a^eoie of a crime UclAn^f*
•D. 1 conld Def*T coDcriic thai any
)uiJ )«e inii'tT « ho was not criminal in
rt. 1 li<i«e alna^s undiTslootl t<H«. that
tr is oecessary to constitulo an oflTonco,
nheat oo the prosecnlor tu provo. —
nen. is there the least tittle of eviilence
ion to affect Mr. AIiiiod ? not only w»'h

malevolent intention, abcribotl toliim in
urroation, but \%iih any ill inlrntion a|
nom any mischief done, or to bo done f
[>er contained in a miscellaneoiii trarl ;
only at that shop. — Gentlemen, if Mr.
vras to be convicted as an offender in the
lion of this ])aper, I think vro Rhould he
bat never will be allowed in thiv cmin-
>pe, and I believe what, in no civilixed

ever was that a man should be in*

in his intentions, and at the Kauic time
—It seems to me to he the i^reatcat pa-
the G^reatest solecism that ever was nt •
I to he proved. — Gentlemen, therefore in
f Mr. Almon, v^e now insist upon it,
uq^li the fact is. tlint this hook wan fonnd
hr»p, yet that Mr. Almon is innosmse
lisher ; nor criminal ; he never \M it,
'. had, his mind never went with il.---
avinj;^ observed to yon njion itliat has
)duced to you in support oi' the pros<:<:u-
A^oulil be almost nnnecessary to opf:ii to
i |»arlicular circiin!stance«i of Mr. Al-
ise : but, ;ren»li rri'-n, %vh have not only

0 f I y
r. Af.

i not l>e«n j-r''.*. '-'I i'. !><- tlit irtU u\'.;;,i\
r of the pa;itr ':r:! i" ■ w:;s k^^/n^uly
•y lo I* pro^f! :.->: *r K* #y. .:•! \Ar ro'.-
but we hav*; !: :''j ■ i«'v t'# ;.•'.*«■ »?/>t
B« to M.*". A v.". ' ■' ■».'.;.■.•:♦. h.i

If ITW '. ": "

ft' snr^ hivnl> -iiii. ■}.?* « ii« iii«j«*t,\'. ^ !'|i/»i«i

■

•— .hf tf*f» lltlti ^C*"4 «!"'»■ '•ON • -I'Ai'l J.t%

L'Pf'W leil^ ft* in*i»ri '"i. :!•«■*«, ,■• ^,•'l•|lV|.l»■,vs

nniaea; hptoT s-^t*. Iv * ,*»■»■ * ■'*> •!•.% ■!•«•< V •
\inr»or j* c"*'-' '*' 'MfH'-*-' "t^ ■ * i" •»«» I*
y^iihlh''; ; •»: »*> j.r i\ft .%>. .V, \ /» ,«,•■.,., W

•it

.\

Tect of evidence wliich we ar*: to f I
re have not '.r'v to :h\ iIj^i M

IT-

• •f.

[r. Arr.'-.'* i-. • '
r ;i "■■*' •

J .... , • I •-. » 4^ .

• - ■• ■, ■ •r.r V, -^
:•■..■ ■ . ..«vi ■%

I'll* ;»*'.' 'I id li*»

iirt' % .npA^pl1t. c- .» .\S ur •• ■» • • - •
:! :ht> i< tt^ hf ;}'." -«■,■..)« I • ' !^ i^u

^'* »\\r". a "X te nnu * ..im-. . »* ; ■ ■» « ^ ' i*w
r* Jinx Ml (in; Mn of mort -a. « 't,^-. c !»■ *^'t " »
The «N^,mi>4>:i i\v;i«r OA X .»'*« Js" St i\i.i .s^,

NVKHW* It I* <ja«!i* Jrti1»i*4',\ It * . ,, ■ ,-. . IX ,,)^

matctial -4I mn.i thc«i i« i iiiv oa i^ \*w h.^ •% «1

knr«« ^^hai wai^ t)«^iii|2. I lii^ m<^«t bis.t ly
fuKsrnKe t%> a «Kvtniir l.-«iii d>^««i\ l«\ thi ilr
lomc\ -t«onrral. .-%« I bniid ii|t«M\ u« sihhouM a
diVliinr, «ihi«*b, I ihink. i« l« i^hU i%hitl««
iBome and brnelu lal to the «\ibii i t«t«l iln« kii^in-
dom. Hr hai^ s.iid, thai in nil «'ii«<^ xi hiili-« n .
the hbrrlv of ihr piv^s i« ih«* most >4i i«d til til
otherx. lie haa trnU Mtd. th.il thnl ■•niii'iiihk
ro^tKon the «.imo piun'iph', and the aiitiit «i<««ii
lilVi and lo lie i;o\rin«'d h^ llie saini Uit. na
evrrv oth«r arliele wi luiv rtbi-iiv It m iim«|
err In inly HO. Mr. .\tltiiiii*\ l«i-iirtnl has •md,
that the liberty o| the pii««. i« tht<hhiil\ \\\
nrilillif \k\\nl is jiul : l.iiA^a hi\ liini> the h
beiiy ora<iiii|f nml doinK • Iml, il I nliiisn ihiil
liberty, I borome eriminnl I'lilrtiidv^o! nn
pHsiiiiin ean ln« idrniri I IT ihrte i« an nlmsfi
ol' thill liberty, iiinbnibledly il in llii* bi||hi*sl
miMlemeniior, in pio|iiMlhin hi the valnn ii| ihi*
libri'ly lie ahiinrH ; but Mpi^ly thiil in aiiv lillii'i'
Idicrly to llir prenriil eaue. I li«vi> Ihi* Idn Itf
ofwnlkiiiK; (when lean, I Iihvm thatltlNiiy
tiKi) but HUpjiositiif, thai in lli« i niiiBn nf my
watkinif, I hImiiii* thai by dMiiiu Hiiy iiii«i hii'l,
then I HbiiNe tlint hbi'ily i m Mippi»-<iiiii. Ibiii
in niiy oltiiT libiity llnit I |i<tvi> nl iiiltiiu, I m ft
nithiniilly, llii'ti I uiii piiidshHlili' (m II l^li>«l
erriiiiidy sof Siippti«ii I hN%i' tlii> liiiiily nt

nsiiiK my bund*, if I iisi- iIm tfi in IIm' hmmoIi. *if
t'l th«* niiiioyuiiff of my mi'ii^IiImhk, I iiin Ohm
(liifrinnl but iMid< r nvtml » iiMiift«l«fi< • >i ^ II I
flo It dit|^iifi|ly, till II I uiii f riffitifNf ^ \f t ''I, f
r;iiiiirH In* ^o ; lo'tU ifil'i i »i#y fil»< ttf <••• 'ffif,
tind toil Will find, tifti lU»* *nt»i»^ *A (* *\-
\t*U*\x tit»*tU tl.m pi III ip'i , I )»iM ««/• »t,i#x<. r tf
■ ifi.v.Mi-f h'ift«'» t'/ tuy #/**/* V»'<t^ I *»#• »'i
•fe'irrji* »«-f. * *r,^vifi . k'..* .■# * « • ' «/'^ t^ J « • -p
i/*;i'r b* flt%A*: m **.ii* ».•*, •##. i»*'J I •^ ^ >§
»A 'fi ."f« ; Soa** M» A'*//*'-^/ 'r«^»*» • • > "^
. •, • S<: » «'• y ♦ » >* * W'^ * K%' •■ Ai'v****/' ■■'/

... t /,«^,*^/'. • '•»..« •'•i1Ai---»i 'i^ <" ■- , "-

**'>.* •♦ * , •• 'i -I <■* or'^'V^V^ »r «#•!#'' .

*«'' '. %: «^ *I1»I •••• ♦itli-'.*':.''-'. ■ »' •

■|-.>» •.l*»*» !«• !• «»*> '.^ri» T.*i ^/ . # -•

vv i\/^tiif«i w •'■ tfc* -/. ■•*■',

M* It"* iu*^f» 9m* rp'^^'^' .•/.-•'^~

MK* lit#" _r^ ■♦if iMspf^^-^ i»»* ^' "

835J

10 GEORGE III.

Trittl of John Almon,

18S6

criminal — Mr. Almon has, in the course of
trade, published it ; that it has been published
at his shop ; now, it does not appear that he
liad the least knowledj^e of* it ; indeed we will
produce proof to you of the ne^tire, that
lie bad not the least knowledi^e of it. Stating*
the case thus, the same rules tliat extend
to a man's answering for every act of wrongs,
where there is an intention, certainly the same
rules roust acquit, where there is no wicked in-
tention. Gentlemen, I will therefore submit to
you, upon all the circumstances of this case,
that we are entitled' to your verdict for Nr. Al-
mon ; that his conduct cannot be condemned,
without violating^ one of the first principles of j
DMtural justice ; and I do hope, that if 1 should
be so unfortunate as to have that ever admitted
to be violated, I hope it will be violated for
iome greater purpose, than merely to effect
the ruin of a bookseller, who, in this part of his
conduct, is not criminallv guilty ; and whom,
in this case, gentlemen, I must submit to you,
at an honest and an innocent man.

Mr. Davenport. We will call a witness to
prove, that Air. Almon is the mistaken object
of this prosecution ; that the books were sent
to his house without bis knowledge. (Call John
MilJer.)

John 3£tller sworn.

8eij. Giynn, I am not bound to nrove the
contrary of what they have not proved.

Court. Use your own judgment.

Mr. Davenport. 1 apprehend, in a cause of
this sort, we need call no witnesses at all. I
ahali be very short upon it. This charge is a
malicious and wilful publication of this libel,
that has been read to you from the paper itself,
and from the record. You will try w hether
that evidence satisfies you, that Mr. Almon is
the real or the mistalcen object of this prosecu-
tion ? The parties who prove the supposed
publication, prove the going into Mr. Almon's
fhop, in Piccadilly, and buying there apam-

£hlet that they asked for, under the title of the
■ondon or British Museum. That is the evi- \
4lence. There is no letter produced to you ;
there is no specification of that sort of libel,
that is contained upon the face of the record.
The book, the pamphlet was sold there without
the other's knowledge of the contents of it. It
is usual, and I believe many of vou know it,
for booksellers, in different parts of the town, to
aend pamphlets and books published for tliem-
fdves to other booksellers ; and this appears to
be by one John Miller, who stands forth, not !
only as the printer but the actual publisher of
it. If that be the case, and, if it were possible, i
that this might be published for some other
man, who avowa the publication, it might be •
■ent very honestly to Mr. Almon*s, or any '
other shop in this town, and they would be '
equally the objects of this prosecution ; if con-
■eot, If eoncuncnee does not go with the
•rioMt of thai yoaara to bethejud|^; of
»^— »-— ^jm gif on ; Boriaitpoo-

as has been described by the Attomey-Geae*
ral, on a man, who himself has bad no comnMi-
nication with the publisher. 1 advised my
client to call no witnesses, and I do submit ts
you, that he is very clear of this charge : if
they mean to try it again, they will get better
evidence of his guilt.

Lord Mansfield. Gentlemen of the jury.
There are two f^ronnds in this trial for your
consideration. The first is matter of fact, wbe
ther he did publish it. The second is, whether
the construction put upon the paper by the ia-
formation in those words where there an
dashes, and not words at length, is the ins
construction ; that is, whether the applicatioB
is to be made to the king, to the administratioB
of his government, to bis ministers, to ths
members of the House of Commons, to Eaf-
land, Scotland, America, Ireland, as put upoa
it by the inlonnation ; because, after your ver-
dict, the sense so put upon it, will be taken to
be the true sense : therefore, if you are of opi-
nion, that that ia materially the wrong sense, it
will be a reason for not convicting bim npoa
that sense.

In the first place, as to the publication, then
is nothing more certain, more clear, nor nrnt
established, than that the publication — a sale st
a man's shop— and a sale therein, by his sir*
vant, is evidence, and not contradicted, sad

explaineil, is evidence to convict the
of publication ; because, whatever any mii
does by another, he does it himself. He is Id
take care of what he publishes; and, ifwbil
he publishes is unlawful,* it is at bis peril. If
an author is at liberty to write, he writes at hii
peril, if he writes or publishes that which il
contrary to law; and, with the intentioa or
view, with which a man writes or publishes,
that is in his own breast. It is impossible fvr
any man to know what the views are, but Iroia
the act itself: if the act itbclf is such, as infen,
in point of law, a bad view, then the act itsvlf
proves the thins^. And as to the terms *• mali-
cious, seditious,' and a great many other wordi
that are drawn iu these informations, tliev arc
all inferences of law, arising out of the fact, is
case it be illegal. If it is a legal wriiing,f and
a man has published it, notwithstanding these
epithets, he is guilty in no shape at all. Asd

* What is unlawful ?— The only sUtutei
against libels, viz. 3d £dw. 1, 2d ami 19th
Ric. 2, condemn or punish no other than falsi
news. They say, *' That whoever shall be it
hardy to tell, or publish any false news ortalei»
whereby discord or slander may grow bet wees
the king and his people, or the great men ef
the realm, shall be takeu and kept in prisoHi
until he has brought him into court, w Inch was
the first author of the tale." Juniua's letter
does not fall within these statutes, for the At-
torney General, in his information, does ost
call it liaise. Orig. £d.

t How is any man to know wbatiaalcgii
wntii^^r Orig.Ed.

I

ii

for a LiM.

. , _il Glynn Inld ynii irhtt was true in
KbeU formerly : thty limt inoree|iiilieuar(l)*l
Iriiul, ami, iini<>Dtr«t llir reti, iliey |iut in tli«
wnr^t ■ bise (■ but he is niiauken u lu the lime ;
it WW Icli out muny years ken ; anil llie mmn-
mg'Of lM*in|r lht« nul in, Ihal it n totally im-
material in pokil ot [iruDf, Inie nr folic : il' it is
true, tbere is, l>y tlie eoaiiiluliiiu, a legnl me-
thod of iirutcculinn, from the higheil to Ihe
lOKcii— errry man fur hia offcnciM. It has
been lelt out, ami maoy oiheri ul' the mme na-
ture, a BTAi many yeara ago, in iiroKciilifliia
•r Ihia kind : • hut i» lo Uie two I'acU now be.
fcre you. A* to llie |iuMicali'in, here are t»n
irilneasea (hat iwrai la ihr Ud: Bihbina
•weara, that hein^ M by an ailvertitrment,
thai aiieh a r'^'iipl'lvl *a« piihlioheil and sold
at tli« defi-ndani'i, in PIcraililly, iliat liv went
there, aikeit for it pulilidy -, it wan puMlcly ex
|w*cit in aal*. and wild lu him by a lad lu Ihe
ahogi, that acli-il hk u ni-rtllnl attUe delendanra.
There iR inolhir witmrtK, Crowiler. who like-
*nt tfrmn. that hv asked |iublicly lorune, and
dial tl »■■ xiiUI liim hy Ibe detiinilanl'a uiaii .

II auiidx ii|ii>ii tlieir ettiiuni-e. If there
^bcen aay ariitic<^, nr Irick, of Henitintr "

^Lbeen

^ow muny yeaisaif"^ — li whs lelt out
■ iBlorniiiliuii a|j[aiii(i Mr. Wdkes, because
rowti lawyprn know *ery well, ihul
wary wonl ol iIihi N on Ii- Briton was true.
Sul d»n> lord AUnnfield mean, il.al il baa been
left mil erer since he knew the court of King's-
heocli f lit! cerUioiy dors not, lor he knows
heller, llecannoihateforirot, (lielnnaiiliciloi-
feoeral at thai lime) that in ihe iaformalion
a|[aiii>t W. Urttn, tried lh« 6lh nf July, 1753,
lor pjl'Kaliiiiij; the case of Alrsiander Murray,
••q. ; Uwr wurda are, ' a wicked, talar, airanda-
biu, •cdititus, and malicious libel.' Therefore
il ia not a ^reai many years a)^, lince ihe uord
• Mat' waa left out. Bui it seems tii be omilled
now, iu conformily with, and perhafia Ihe bel-
4tr to enlbrce ilial new and absurd doctrine,
that any wriiiu)f, true or lalse, against a mi-
kiitar, la a libel. Il uiny be ao, according tu
the Imperial alaiiah civil law ; but it is cooira-
jielad by natural reason, upon which *■* foiinde<l
Um miU and liberal Ian of Bi>Kltnii. ludved,
lord Uunafield's deflnilion of the librrly of ihe
»T«BS, warranti ua in thii supixiaiiinD, lur, upon
Mr, Woodfall's trial, he said, " The liberiy of
the preaa cnnaiita in no more than thi*. ■ lil>vriy
to print now wiihnai a licente, wbal Ibrnif Hy
»ld he printed ouly with one." — And, in the
'"■nation agaiiiat Kichard Nuit, lor pnnliui;
aahliahing to the London Evening Pnul, of
klO, 1754, the jnper is called a falie,
idi acnnilalnus, aeilitious, ami mali(-ioiis
I Thia infornialiiin waa tiled by lord
l«U himself uhcn be was aitorney.t(ene-
KAad, in the liiliirmalioii ai{ainsl L>r. 81ieb-
V^ tried bjr lord IVIanafield in Triuiiy leiiii
Elbr pnblNhinglhe Sixth Leilcr to ihe Peo-
n^ EaglsDd ; that leUer i* called a false,
jd, B«anJatau», fte. libel, tiet Ditfeil nf
«w<flibcli. Orig.Sd.

n pni

tp|y inio wuiU, u

tS38
vlip, 1(1 sell

be proYtd by the defeudint. In
cue, Ihedelendanl may call aaerrant nrhialn
give evidence; hnl Ihey hare jud|^ed il witet
and pruitenier not to call him ; therefore il
tirtly upon this suggesliun.
Gli/nn. Weilid nolcall (hestnanl, »•
calleil ,'Ur. Miller (he publisher.

Lnnl Maii'feld. It certainly Testa ainilly
upon Ihe eviilence of Ihe iwn witneiBes, wiUi
reiford lo ilie pubhcation of this papers if
you hi'liere these twe wilnessea, you will he
ili«6ed as In the tacl: it you believe that
list they have sworn is false, and not Irue,
ou will not be salisCietl.
As lo the sense pat on Ihe words by the in-
irmntion, ynu will exercise your own jud^
lent: hul this certainly, in fmint of law, ic
icainsl the defendant ; and, it you are al*n aa-
lisKed with the seoie |iut on (he wnrda by lb*
iDliirmaiion, you nill find the delemlBOteuiliy.
Thej set era I ly prove their lieing bought
there ; b)it if yon heliere llwy were not
houghi there, or should not agree with the in-
formalioB, wiih regard to Ihe sense there put
n the Hords, in these parls of Ihe psper ; Im
ilher of these circumstances, you will acquit
the defendant ; and therefore, iu order lo guide
your judgroent ihe belter, you will lake tba
paper and the inlijrmatioD with you.

The trial was over about twelve. The jury
■hen went oni. and slaid out near two houra
and a half. When ibey returned inlo court,
Herbert Hackworlh, esq. (one of ibc jury) said
lo lori! Mansfield,

My lord, I am inslrucled lo ask a question ;

Whether selling in ihe shop by a aertant, of
a pamphlet, without ihe knowledife, privily, or
concurrence of ihe matter io the tale, or even
wilhoiit a kuowbdge nf the contents of ihn
hbel nr pamphlet ao sold, lie sufficient evulniM
to couvict Ihe masier ?

To which lord Mansfield answereil,

I hare always understood, and take it to ba
clearly seiiled, that eiidence of a public sale,
or public eipusal to sate, in ihe shop, hy ihe
servant, or any body io the house or shop, ia
sufficient evidence to convict the master ol tlia
house or shop, thougti there whs uo pnviiy or
concurrence in him, unlesa he provrs the con-
trary, or that there waa tome irick ut vol-

Tlie jury Ihen agreed atonug tliemselrea ;
hut bkiiire the verilivt was K>ven, lord Hans-
field Jpsired the Attorney General and Mr. Ser-
jennl Glynn, lUMienU and lake down but opi-
nion i anil here be re|>eateil aa atravc in iba
jury, excepl, that instead of saytoic il wan *nf-
licieiit eviilrnce, he said il waa primajacie evi>
deuce to charge him, iiuleaa he could abew it
waa by tiick or (wIIusiod, ami without hi*
kuowledgeur privily; aud then added, " Ifl
am wrung, they may nwre Ihe Couti, and llu
trial will be K( aatdc."

83<J]

10 GEORGE III.

Trial of John Almjit,

iuo

Leonard Mursf, ctq. nid Giiilly.

Previous lo the Wc'iiininff uf the luccmling
term, llie liefi^mlinl liavin^ htil a consultatinn
withliiscounvl, wusHil vised 10 muTel'nr a new
trial ; which wai accurdinfrly done on Ihe 97th
of June, u|ioii llic Eroiind u( law, that Ihe mas-
ter is nnl aniweruhle, in a criiuiDal cu«e, for the
cnnduel of hie wrvant, where bii jiriTilf ia noi
provpif ; bui the Court did oot Ibink proper to
grant a new trial.*

TUe rollowint; account of the Proceedingi
niMJii iLii oci'aiinr waa gireo id Itie Londoo
lluseuni (of wIiicLi N. B. Millet nu the
l>rii)terj ;

Thin morniDft, about tvn o'clock, came nn to
b« iJebaleil in the court ot Kinn'i-hencli, Viett-
mimter, before lord chief jiMtice Mansfield, the
jodgj^ca Asinn, Willea, and Ashhunt, Ihe nrgu-
menlE on the rule to shew causi', why Mr.
AlmoD ihuiild not have a New Trial ?

Lonl Maoitielil opeoeil Ihe cauie by rEcitiii(jf
the |iriiiri|iBl circunnlaaces of the lale trial.
Attrr wliidi, the Solicitor 'tiencral. on ilie pan
of the cruivD. declared he wat amazi-d at any
besiialion, after a Tenlict on preiumpliie proof,
vliich amoimled to a can cluaite evidence, ■>
Ihe defendiiiit had not called soy witiiewex lo
diipmve whM the witneawn no the aide of the
plaiiiliff had adranccil ; and iirired, " tbal Mr.
Almnn WBH Ixilb i^dW of publication and in-
tenlion — of puhiicntinn," he said. " because il
was (Old iiiiblicly in his abop, and of intention,
iecsniw bis naino ajijicareil in llie ailrerlise-
uient and tide pii>;c, botli which cirnumkiancn
■trnoirly iinplinl his consent." He ibcn en-
'tcrcil iiilii a recital of the several eTidencca that
kil tu the runner verdict, and was gain;; on to
prove the imtiility uf h new trial, nheu the
<'uiii't m|iii'Nlrd that the dcfendiint's cnunsel
■nitrlit be tirvi hfaril ; on ivbicli Mr. SprjeBni
GIvnii at once I'Ulered iuiu a general review of
the fact.

lie said, " tliat the fur I of publication was
not HilKdently jnuved ; thai the cTideiici- exa-
iiiioi'd iiad pnl siiore In lliu identity of the pei-
■nn who sold the |>ani|dilet, who i'nii>lil nut lie
Mr. Alinon's servant : mid he parLicukirly and
ri'pcuii-dly un>(-d, that pMiint; criminal ■ iniciiliun'
was iii'Ccssnry to run vitt in a cuuse of tliis kind ;
dcctariiiu', be shunld never lie ahliained In as-
sert lliia, as he tliouKbl il liiglily bernini:i!; the
Uionlh iit'a kfuiid lawyrr, anil he cunccived no
jnry riiiild cnnseienii'iusly fiud any di-lendant
giiilly, unless llie i^iiiiiiual andsedi:iuns ■ in-
fiiirly Slid deilii>n&l rati rely prav-

crimiual chtrtcea maile in iba wttrds oTlbe >*-
formaiion, wliich they ouglit to havedoBe.ata
defeodaiit is only to comrovert Ihcir eviilcBBc^
and make hia

ed; xliei
plaiottr had u

* Tiie realprinlrrK and jiiiMUhrrslicin;,'' tried
At Giiddhall, eacli by a jury of indcpeuileut
Cilizens <il Limdon, weie all aiqniiltd.

The law prTK'ep<linMi> aii'.tidiiiu ibis trial, cMt
Ibc dcfcndui Hit, (to. llif. Orig. £d.

ipply a proof of his own guilt."

He observed, " tbai the pamphlet in ^ns-
tiun, was bon^^ht in Ihe shop uf Hr. Aluwa,
without either his privity, eottaent nr cnocui-
reoce, that they were scat Ihrre unkoown to
him, and Ihst as soon as he knew tlicm to ka
in his possession, he sent the rrmaiadcr bMk
lo the publisher; that vs to what Hr. Solicilar-
General had obaervcd in respect lo Hr. AIibob^
narae being advertised fur the sale of lUs
pamphlet, or iu the title page, it was n« BHira
than tlie known and accuatiimed nsac" of bosk-
iellen lo one another, who frequently, witbort
consulting Ihe parlies, as thinking it immsle-
risi, pretized the names of Ibuae whose mtat-
lions or charactera, ntight most encvura^a lbs
sale."

AFier thus poioting out the couraeand eusloii
of Irade, he shewed the utter iinpasBibiJity,lhil
a buukieller could carry oa his Irade undirrSMb
circumslauces. He siaied the prcnlisr haid-
bhipof the case; and aaid, that a lieemcT tni
much belter for booksellers, if they ate ra-
dered thus liable.

He aliscrved, " that masters, in some casts,
were noi bound fur the errors ufthnrservsali,
jiarticulariy in matters of crimiaalily ; was the
caseolliernisc, il would be in Ihe power «f*
maliciona servant to ruin bis niaaler.

■' But, suppose, my lords, (says tbcSerinU)
the indictment wsa laiit fur high treason, sbaon
the hare evidence of this pamphlcl'a brinf
bought in his shop, uiihoul its ever being
proved be was his servant, or with bis pririiy
andcotuent; ninst that involve the maaler, h
as to forfeit his life? — surety no! This wimM
be acling both against reason and justice.—
Where theu is Ihe line to he drawn f

•' But, mv lunls, (continued the Serjeant), I
believe it will be (bund that Air. Ahiiui) is inly
convicted hy eleven jurymen, Mr. Msi'kivoita,
une uf the K^ntlenit-n, having mistaken ynar
lordship (addressiiic liiniself tu lord Itlansfltht)
on a ipieslion lie jiroposed to yuu, rea|iectint;llN
inasiir'H bf'inK inviitveil fur the act of the >«r-
vaiil. Mr. Muckworth, though a gMillrniiS
exirrmely well acquainted niih the KCntnl
principles uf law, did iiol precisely knuw Irun
yonr lordship bnt that there »as a pcwuive ink,
particularly applied lubtMllsellerR,»hiih bnual
lliem, in ail retpei'ts, to heantwrraUe lur «hit
was siild in their shopit ; and, in vunM-qunic*
uf uiiilerKiaiiding \nur Uinlsbip «>, 1 am in-
slriicled In &ay, alut I have an aBidavil id 3lr.
Mai'kuotlh's'iu this pntpusr, ibai he ibnufkl
himself bum III in GiniKcieni-e In briii<; Mr. AliuM
in ciiiilly ; but if, iii> lutd. be hud been iiilurs)-
(-■I, lliat Iti: liiiiisell iiasihe cuiisiiiniiiiiMl |ui1|(t
lit that mailer, hi- deciaini he wuuM bate s^

iuilied him. Ou ihmr t>riiuu<lB, iiij birds, ikM

sue fill- n ni-w Ki I."
The Court vlyccied to the readiiig Ibe afi-

841]

J6r a LiM*

davit ; jnige Aston declaringr, that it would be'
a precedent of a moitt dangerous kind, as no
trial would ever have an end, if the Court lis-
leoed to affidavits made by jury men after the
vertlict given on the trial.

Mr. Lee next began. He did not doubt but
lir. Mackworth had supposed, that in conse-
quence of lord Mansfield's declaring the evi-
dence, was prima facie evidence, be was oblig-
ed by law to find Mr. Alroon guilty, as there
were actually cases in the tooks of former
limes, where very strange precedents might be
leund, and immediately cited one from Fitz-
Gibi»oos, where iu a trial before lord. chief jus-
tiee Wright, Elizabeth Nut, an old bed-riddeD
woman, whose house was a mile from her
abop, was convicted of publishing a libel, be-
cause ber servant had accidentally sold a li-
belleus pamphlet ; and this upon mere evidence
af its lieia^ bought at her shop, [The same is
Hie case in Barnardiston's Reports] and added
lAie case of the Seven Bishops in the reign of
Janeft 9. He then went further into the na-
ture of the evidence, and asked the Court,
whether in a trial for publishing a paper tend-
ing to levy war upon the king, and which came
under the charge of high treason, such evi-
dence would be thought sufficient to convict,
ami uke away the defendant's lite? Having
pleaded for a considerable time with great abi-
my. he concluded his speech ; when Mr. Da-
venport got up, and began with reciting the
question proposed by Mr. Mackworth, aud the
aBh-.ver given by lord Mansfield. He then
quoted two cases, one from Coke, and the other
Dom Moore, where it is laid dowu as a maxim,
thai to render a man guiUy of publishing a li-
bel, it must be proved, that he published it
wtato animOf with bad and criminal * intention:'
Mr. Davenport went upon the same arguments
which the JSerjeant and Mr. Lee had gone
opon.

The Solicitor General opened with declaring,
that the qufstion Mr. Mackworth had put, and
lord Mansfield's answer, had not been accu-
lately stated by the counsel for the defendant :
he then read them, according to his notes,
which he said he had taken on the trial, and
fsom pared since with those of several others,
aad particularly a short-hand writer present
the whole trial : be spoke for a considerable
lime on the nature of evidence in general ;
talked much on the distinction of positive, ocu-
larly demonstrative, presumntive, and violently
Resumptive, evidence ; explained the nature of
prima facie evidence ; asserted that the evi-
deuce given was prima facie^ and sufficient to
convict on, therefore, he could see no reason,
why a new trial should be granted.— Mr. Mor-
ton spoke next, and made use of arguments
■imilar to those used by the Solicitor General:
ha said a thing might be criminal to day, and
imiocent to-morrow ; criminal in one person,
aad innocent in another ; criminal in this place,
ioDOoeDt ia that ; and this beautiful string of
ilwtoric be explained, by a very elegant simile,
iparing libelloQs pamphlets to squibt aod

A. D. 1770. 1842

erackera, and a legal publication (o a eartridga
made for the artillery. Having fiuished his
harangue, Serjeant Glynn presumed he had a
ri^t to reply ; he declared he would not de-
tam the Court long, but would conttue his ob«
servatioos in as short a compass as possible :
he observed, that his learned friends, Mr. Lee,
aod Mr. Davenport, had the misfortune to
have bad their argunients unfairly stated by
the Solicitor Gfneral and Mr. Morton, and ex-

Clained the different manners in which tbey
ad expressed themselves : he then again urged
the evidence as insufficient, and declared that
Mr. Mackworth, in his opinion, founded his
question on the reasims wnicli Mr. Lee had
asiiigned ; that Mr. Mackworth was a gentle-
man of great natural talents, improved by a
very liberal education, but though he might
know something of the common law, it mutt
be impossible for him to be perfectly acquainted
with the practice of that court, as be was not
bral to the bar ; that therefore he asked the

Suestion as a matter of law, and by founding
IS verdict on the reply, he had inadvertently
given up his right as a juryman, who, he re*
peated, were the real judges in these cases ; as
the Court very welt knew, upon a juryman's ap-
plying to the Court to inform him what verdict
he ought to bring in, the Court would not answer
him, as it would be acting in an extrajudicial
manner, and take the power out of the jury-
man's hands; although they would ceitainly
give an answer to any question of law. He
again desired to read the affidavit, which lord
Mansfield then consented to his giving the sub-
stance of; Mr. Mackworth being in court,
bc^rged to read it himself, but the Court for-
bidding it, as irreguUr, he put a paper into the
Serjeant's hands, who read it to the Court:
this was not the affidavit, but a pajier contain-
ing Mr. Mack worth's sense of his lordship's
answer, and which the Court were of opinion
entirely confirmed the verdict. Mr. Mack-
worth next, with lord Mansfield's leave, ad-
dressed himself to the Court, and gave his opi-
nion with regard to his question, and the reply,
which he did in so judicious and sensible a man-
ner, as reflected great honour and compliment
on his character.

The arguments on both sides being now eon*
eluded (which took up about three hours and a
half) lord Mansfield gave his opinion to the
following purport :

** I am most exceeding happy for Mr. Mack-
worth'a present declsration ; I understood bia
question, as well as he did my reply. In ra-

fard to what 1 had then charged the jury with,
was so particular that I took notea of it, not
long after their going out ; and though I can-
not be so particular in respect to the very
words I made use of, yet I am clear as to the
substance. 1 told them that biMiks sold in any
shop, or warehouse, though nut immediately
by the master, hut by his bervant. or one en-
truRied with the sale of such books, is /rriaw
facie evidence, aud conclusive to all intent and
parpoae, if not contradicted ; the question ask-

SA3J

10 GEORGE lU.

«(l me by Mr. Mtckwortb, m I UB«lcntood bim
4bni« and 1 fiod 1 wai not miiUkM, wai,
wbetber tbe e? ideooe (^hiob he believed)of
tbe piophleCt beififjr bought io the shop of l|r.
. Almoo, arimiiiaUKi bim, thoogb not told by
biiB. 1 eotwered bins, ** roott oertaidy;"
'and I repeat it, tliat juriet are only jadget of
et idtfioe^ tbe ioferenctrs from points of law, not
properly oomiog before them. Tbie ia what 1
Be?er knew to be.di8|)uted ; and these are my
feasoat fur not. tbiokiog a leoond \rial neoei*
•ary. Hoverer. 1 am stiU opeo^o change my
opinion upon better information, though I am
at present as clear in it, as I am in ao eldest
eon's title for enjoying his fatber^a ertate."
. Tbe other three judges concurring in the
same opinion, lord Mansfield foibad Serjeant
Glynn to move for an arrest of lodgment, say-
ing, Too need not dio it, I'll bear no more $
and bis lordship acoofdingly ordered the role
to be discharged.

On the tStb of NoTomber the defendant waa
brought up for judgment Of the proceedings
upon that occasion tbe following account was
published at tbe time :

(From Uoyd'e Chronicle, Nor. 50, 1770 )

Substsnoe of what passed in Westminster -ball
yesterday (Nov. 28) when Mr. Almon re«
ceived sentence for selling Number I. of
thfli London Museum,' containing Juoios's
Letter to the K ^.

About two o'clock Mr. Almon was brought
Into tbe court of King's- bench. LordMansMid
Wid the Court there were six affidavita which
were strong in aliensting [qn. alievhUing] the
criminality, and extenuating the degree of guilt
io the defondant ; and it was necessary they
should be read in open court Tbe two first
by Mr. Miller, printer, deposing that he is tbe
printer, publisher ,and principal proprietor of tbe
London Museum ; that he inserted therein tbe
letter of Junius, without tbe privity, consent or
knowledge of Mr. Almon, or any kind of com-
nication with bim ; that he put Mr. Almon's
name upon the blue cover of the work, in like
msnner, without bis privity, consent or know-
ledge ; ^ that Mr. Almon, as soon as he disco-
vered his name at tbe foot of tbe wrapper, im-
mediately sent Mr. Miller a note, expressing
his dislike, end desiring that it might not appear
there in future ; this note was accidentally de-
stroyed, as Mr. Miller did not conceive it would
ever be of consequence enough to. be preserved.
Tbe third aifidavit was made by the defendant
himself, who declared that be was not at home
when the London Museunos came into bis
shop ; that as soon as he came in, which waa
in the afternoon of Jan. 1, be observed his
name at the bottom of the cover, and imme-
diately sent a note to Mr. Miller, expressing bis
disapprobation of it ; and the first tioM in tbe
afme (day thai he bad leisive, be perused the
OMmthiy piAlicatioBS, and directly gave orders
Ml stop the mk ef siiich as coatamcd Jomns'i

Trial of John Almon f *

letter; amoogothers#aetheLsidaaMi
tbe number sent him by Mr. HBIer wee SQO^
and about 67 or fi6 were oeld before he ewkiei
thesaleto bestopt; theMxtmerBuyheer^
dered what remamed to be eaniei op la' Us
garret, and the eariiest opportaaihr litwnsj
them to Mr. MUler. Thefocvth afidsfvltww
the depoeition of Mr. Dilly, bookseller, uieiiM^
that it waa tbe customary practice 6itm tarn
to affix, io the title negie ef uiy bfel| se
nanipblet, the namea of^siwh hsekaelisw^ «h%
from the coovcnieocy of their sitiMtieB^er His
repotatioo of their trader tBV^^ tettd mestin
encrease the sale. . The fifth afiUafit w
made by Robert Morris, cso. of. f i^erfi^
Inn, barfister, who depoecd, thai he had edU
at Mr. Almon's a day or two aAer the piibi*
lication of tbe London Museiwi, ■ aad aiM
him for it s but Mr. Almon anawered. hiai he
bad it not; this denonent further duisii^
that while he was in tne shop a stranger ahv
came in to boy one, but was refoMiil to. Iha
same manner; that he had bioudf aiMS>
bought it elsewhere, bed |feruaed it, aad eia*!
ceived it waa do hVL The sixth afidsA
was made by—— Adams, sbopoMm to Mb*
Almon, who lully corroborated and streagthsail
what bis master had previously depeoed.

Tbe Attorney General opened with dedirim^
that had not the defondant predooed the m
aflMavits, he shookl have been eztrsasslypK
gent with the Court for as severe a pnnishaMSl
as couM be Inflicted, as he considered thes^
fence Mr. Almon was convicted ef, aa ewsl
the meet heinous that eonM possibly bek
gined ; that, as fiir as his Meaa carri
a publisher waa nCit at all Ima criminal
he was not the origmal publiaher ; inhissijsi
be was mfinitdy moreeo; the author, as thfc
founder of tbe mischief, bad the greateet gnSt;.
tbe person who 6rat printed it, without harisf
beard any opinion but his own, was not nearaa
criminal as he who, after tbe geoeral^ idea. if
the public was known coooemiog it, gave.it Is
the world a second, a third, or a tenth time ; ill
that remained now for him was to point out
such objections as arose io his breast, tendi||
to lessen the efiect of tbe affidavita in alicBSt-
ing the criminality of tbe defendant : be lb-,
served first, that what Mr. Miller had depesid
might have been given as evidence on tbe triili
that deponent havmg beenltben called, if alt
sworn, but wss prevented from examinatiia
by tbe counsel for Mr. Almon ; that in thi(t
case, be and bis brethren would have b«B
afioHed an opportunity of cross-exsmiaisf
the witnesses, and have put such questions ti
them as mifbt have leMcned the weight iC
what they advanced. Lord Mansfield hers di^
sired to set tbe Attorney General right, iofiMIK
ing bim that tbe affidavits were not now M*
ceived as impeaching or invalidating tbe ie>
corded verdict ; if they had been oflbrsd Ji
that light, the Court couki not have heiii
them ; that the counsel for the defondant bei
wisely stopped tbe evidence on their sidefiea
bemg esamuiedi thereby frarartrng mqf Ihiii.

>£.'.«. 1 .m.

f^r a LiOei.
mmriag out thtt might injure ih«ir client: (hat
llie ilHdaTMs were now merely lo lessen and
fix ilie decree of puoialimctil ibe ilrleiiilanl
meriieil i and. Iheretbre, tlie Attorney Geiienl
wvnl upon wrong irrounils in cDnsiderilig tlipm
u evidence tot Mr. Almon. The Attorney
Oearnl next nrgrd, ihe want of prrcisentsB in
lite affidavit*, partlcnlarlv in iliat of tlie deff n-
iHaat, wliich, lie «aid, iliil not point out the dif-
fervnce uflime iKlwcen his leading llie letter
In Mr, Miller, and slop|iing the aale of (be
{lampliln, and was curiously detiDioi^ ibe in-
■c«ur«cy, when Judtfe Aalon inlerrupled him
with tihartt'iBfl, Ibat thai was rather a nice
argumeni ; that the Court understood, and be
dared ay Mr. Almoii meant it, iu the afternoOD
oTlheday urtlie|iulilicalion ; that if it waiany
way vquivocal, the mailer was direct perjury.
The Aitoruey General declared, he did not mean
hy nk«. at lubile >rgumeiil«, to liurtany man,
kul went upon the hnaesi grounds the afTiitavil
alTonled ; iliat as it waa wbolly in the defen-
dant's power lo produce all he could in favour
»t bim-ieir, he only wondered he had out been
more full inil conclusive, reciting Ihe lenor of
the aliidavil in worda rather more cxpretsive
■ad cuncisc than Aimno's: he said, he wis
0iore |iarlii,'ularly urgent upon this occasion,
itiftt too great s precedent miehl not be opened
tor daliniiututi to evade puniibmcni, by lessen-
ing anil impeaching the verdict when brou|j;hl
to Kcelve judgment, and that it might not be
laid down an a rule of the Court, to BfTonl a
■belter forcriminalsloracapeunder, upon a plea
al ignoriDCF, or of a libel being sold in ad ver>
tently wilboul the knowledge of Ihe vender;

tLord Mansfield informed him, he nceil not
t Dnder apprehentioas that any such wnutd be
Uiddown by I hat court; and then askeil the
counsel for Ihe crown, if they had any afB-
ilaviu 10 produce on their side ; ami beting an-
nvreij iu the negative, he informed Ihe Court
thtt he wiH obliged lo leave ihem, but desired
Ihr nailer mi|;hl go on.] The Attorney Ge-
Beiatnntdislinguiihed between aman'a selling
t ptinphlel aa long as he could sell, and slopping
■hile he yet had it in bi» power to aell, calling
Hr. Almun's the middle degree of guilt, but
]«t aggraraling, as much as potsihie, every
trreniuatiiice that could tell ugaiuil the dc-
'eadint, or increase- the punishment. The
fcltcilar General seconded whdt the Attorney
Cawtal had JuhI advanced, oliserving. that
Mr. Almon'a aflidnvit was very vague and iu-
wecluiive ; thai (be Court should have been
inrurmci] where Mr, Aluinn «*a when from
liOnw, why he went from home, whether Into
llw RDunlry, or tn what place, the butinen that
■InaineU iiim, and llie precise time be slaid ;
ttiai Hr. AlinoD had wr«ie In Miller sbuul his
', why he did not also then
, ? ■il.,. ..,

-k.? T

which his name

ireaaed the contenta of lb«

lirad «r which stood Junins's

Ibe K~: Could hi.' not ne that? But

&J, and iheii siupiied, whf-n as hit aHr-

"^l, br Iaak«d«ver the maoiljly publica-

lil>. 1770.

It wu not Iberefure unknowingly, or
agaiuil Mr. Almnn's wilt, to sell what be knew
U> be a criminal paper ; but it was the fear of
punialiraeut alone that induced him lo stop lbs
sale; Mr. Almonhad,on his trial, been legally
conricled ofael ling a libel of Ibe must infamous
kind ; the afiidavila produced were with him of
no weight, Ihey were exiraoeous 10 ibeterdict,
nor ihould they at all alFect the punishment.
Mr. Morton gut up, as Ihird cnuntel for lh«
crown, spoke a few words, which scarce anj
body beard, and then sat down auain ; wben
Serjeant Glynn arose, and began wiib ohserria^
thai what his learned brethren had said, as lo
the affidavila now produced not xnjpeacliind*
or tesaeniog the VGnlicI, they were cerliiuly
right ; Ihe verdict of a jury was solemn, anil
ought lo he considered as a sacred fimling ; in
conseijuence nf ihe verilicl, he was under Ibo
necessity of considering Mr. Almon as In soidb
measure gnilly, hut it was bal right the guilt
should be regarded oiily in ils just and proper
degree; Mr. Almon't, m bis opininn, was al-
monl merely nominal, and was indeed, with all
due deference lo the verdict, next to nothing;
Ihe sfSdavils were strong, and ought lo lessen
Ihe idea of criminalily the verdict necessarily
involveil the defendant in ; ihe Attorney Ge-
neral might bdeed havo drawn them up witli
more accuracy ; Mr. Almon, as an honest man,
(a character in which he had never been im-
peached) had only eiven ihe necessary strung
lights, which he had not done altogether wiih-
nut the aisitlance of the Attorney Genecal ; for
il was in iwnsequence of the objections maJe
by that gentleman, when Mr. Almon was
brought up for judgment la«t term, ihat the
affidavits bore their present face ; ihebencli, as
well as the bar, had pointed it out as neeessary,
Ibat it should be ascertained when Mr, Almon
stopped the sale, how many he sold, and when
they were relumed; these questions weie now
answered ; that aa tn the ■ Where was he F
What did hef ami, When returned he?' so
loudly and strenuously called for by the learned
Solicitor General, they were not necessary to
the point, nor were Ihev before demanded ;
Mr, Almon, of all Ihe publishers of Ibis pa|>er,
many avowedly so, stood alone likely to receive
punishment, and certainly with ibe slighleil
degree uf criminalily ; bis crime wus merely
nominal; and his punishment, if any, ihnuld
be merely nominal ; Ibc affidavila might be
called extraneous fiom Ihe verdict, but ibey
were, of ibe kind, of weigh! and consnjnence
sufBrieut to alleviate, and almost wholly excul-
pate the defendant. As In talking nf being
induced to do tighl through fear of punish-
ment, il was sn argument that might, with
equal propriety, he alledged againil every
man, tor every good and just acii'-n ) a
severe puniihmenl was never, under Kuuh clr-
cumslsoces, intlicteri in that, or any olbrr
court, or legislature ; be hoped, iherrlore, ihe
Court would properly cousiiler the drgrrv of
ex ten II lit ion enrDiceil by the aflidaviM, uuJ
give judgment aocgrdiogly.

S17]

10 GEORGE III.

Trial of John Almon,

[848

Mr. Lee spoke next for the defendant ; he
observed, that if Mr. Almon's affidaTits were
equirocal or false, they were not only the
grossest prejudices, bat the grossest insults
upon that court that evrr had been offered ;
but that there did not appear to him the most
distant reason to doubt the validity or truth
of any of them ; the affidavit of Mr. Morris,
an independent gentleman, was the most in-
controvertible proof of their being founded on
fact that could possibly be produced ; and
that established, the whole was a strong alle
mtion of the defendant's criminality ; he de-
clared he was amazed to hear the gentlemen
of the other side prosecuting this affair with
■0 much ardour ; he imagined that Mr. Al-
mon had been all along considered as scarcely
at all guilty ; that every circumstance told for
him; and he bo|)eil the Court would be as
lenient as possible in the punishment.

Judge Aston then began giving judgment,
which he prefaced with observint;, that Mr.
Almon had been found guilty of publishing
a most wicked, seditions, and malignant libel ;
a libel on the person of the kint;, a prince re-
markable for the excellency of his public con-
duct, his private and religious virtues, and his
steady attention to the welfare of his people ;
as admirable in himself as his libeller was des-

Sioable ; notwithstanding the opinion of one
lorris, the defendant had been fully, fairly
and legally convicted of selling, in the London
Museum, a libel filled with defamation and fals-
hood, abusive of the sovereign, and the great
officers of state, charging both Houses of Par-
liament with adopting arbitrary measures to
tiie injury of the public, and, in contempt to
the laws, tending to disturb the public peace,
to destroy order, and create anarchy and con-
fusion ; fhe crime deserved the severest punish-
ment that could possibly be inOicted ; but the
king wanted not to oppress !iis subjects with
cruelty, he meant only to correct their ill -sprung
errors. The Court were of opinion the affi-
davits of Mr. Miller and Mr. Almon lessened
the guilt of the latter ; they did not attend to
one of the others, as they would not pay any
regard to the affidavit of Morris, who cuuid de-
clare (thotighonly in a parenthesis) that Juuius's
letter was not a libel ; but that the booksellers
in future times, might not screen themselves
by pleading ignorance of what they sold, it was
necessary to repeat, that the bare tact of publi-
cation was sufficient conviction. The Court
conceived that the affidavits were not de-
signedly equivocal ; if they were, the defen-
dant must know he was guilty of perjury :
and notwithstanding what had been ^aid by
gentlemen of the other side, jud<:e Aston de-
clared he could not help defending the At-
torney General for pushing his prayer for
judgment in this cause. Had he done other-
wise, he would have neglected the duties of
his office, a matter be never had yet been
guilty of. The sentence was, a fine of ten
marks, and to be bound over to bis good be-
haviour for two years, the defendant in 400/.
Mad two sureties in $00/. each*

N. B. Copies of these affida?iti were givea
to the Solicitor of the Treasury last Trinity
term, before the long vacation, and three of
them had been read in court. Af\er thii
second reading was finished, the counsel weriB
beard, and then Mr. J. Aston read from a piper,
what the Court thought good to pronuoDoe
upon the matter.

The reason given, for throwing out of the
consideration, a material affidavit made by BIr.
Morris, a witness totally disinterested, is really
curious. He \n a youni; barrister, and swears
that he bought Junius's letter, not thinkiniriti
hbel. The judge thinks it is; and the |Kiint
upon which these two lawyers differ, is aifrred
unanimously by the whole Court to be matter
of law. Because, therefore, Mr. Morris is
wrong in big legal notions, he i^ not to be cre-
dited as to matter of fact. .How this miffht
sound in the four courts, I know not ; but, in
my opinion, it will not pass in Westmiuster-hill
for fair inference, good logic, or pure justice.*

The following account was given in tiM
London Museum :

" June SO. This day, on a motion made by
his own counsel, Mr. Almon appeared in IM
court of King^s-beuch at Westminster- ball, a
little after one, before lord chief justice Mans-
field, Mr. Justice Willes,and Mr. Justice Ash-
hurst, to receive judgment. Serjeant Glroo
opened with explaining the nature of Mr. AI-
men's offence ; and beginning to touch on tLe
evidence that convicted him, lord Mans6«U '
told him, that if he had any thing to say ii
extenuation of Mr. Almon, he had not the leiil
objection to hear it, but that he could not alls*
bim to enter into the evidence. The Serjeut
informed his lordship, that he had mucb to
say in extenuation of his client ; so much, that
if he had any guilt at all, it was uf the lightest
nature. He re^ieated to the (,^uurt the circam*
stance of Mr. Almon's having slopped thcsak
of the pamphlets as soon as be discovered tbrj
contained Jnnius's letter ; that his name vtts
inserted on the wrapper without his privitv or
consent, and that it was accidentally soid,ia
the common course of his business ; as a prool
of which, he had very strong affidavits to pro-
duce, the one Mr. Almon's own, a second Mr.
Miller's, (tiie original publisher) a third by Mr.
Dilly, a bookseller in the Poultry, and a fonrib
by Robert Morris, esq. of Lincoln's- Inn, cacb
severally and essentially tending to clear .Mr.
Almon of any criminal intention. He saii! bt
hoped the Court would not think of a sctera
punishment, as if that was to be the cod»C"
quence of a prosecution and conviction of thn
kind, when the guilt was attended wiib sucb

* What Mr. Justice Aston in pronouociof
sentence said of Morris (see the case betwcei
him and MIns Harford, see also the trial of the
Rev. Bennett Allen, a. d. 1782 ; forthemurdff
of Mr. Dulany) was sharply reprehended bj
Junius, and also m ** A Summary of the Lav
of libel in four letters signed Fhildcatkcrttb
Anglica&usy" Lett. 4.

MO]

Jbr a LibA

A. D. 177a

[850

lUvialiiig drcamstdbora, the ezercisio^ the
nde of Mokaeller wuuld be extremely haacard-
iw ; and if more than a Dominal puoisbment
ras inflicted, the beat advice be could give the
ookseHera and pabiishers would be to shut up
beir abops. Lord Mansfield desiring the affi-
•tita might be read, the clerk of the court
smediatelj read tliem.

Mr. Alnion'a (which was first read) de-
oatd, that he did not cause that letter of Ju*
ioa to be inserted in the London Museum.

Mr. Miller's deposition was, that Mr. AU
ran had no concern whatsoever in inserting,
r causing to be inserted, that letter of Junius
I the L^don Museum : that he put Mr. Al-
KMi'f name to the pamphlet, as a seller only,
ecaase he knew many people of fashion, and
Brokers of the nobility resorted to his shop ;
id that it is usual for the booksellers to add

• their books, &c. the names of such other
NikaeUerfl as appear most likely to sell them :
lat be put Mr. Almon's name to the London
Imeam, agreeably to this custom, without
(kiug his leave; and that he also sent the
loka to him.

The affidavit of Mr. Edward Dilly was
BXt read : he deposed, that the above practice
r putting other booksellers' names to, and
Moing them books or pamphlets to sell, was
watmoQ and usual in the trade.

Lastly the deposition of Robert Morris,
M|. waa read, which declared, that he called a
ew days afVer the day of publication, (which
vas January 1,) at Mr. Almon's shop, in order

• purchase one of the numbers of tlie Museum,
Mtainiug Jnnius's letter, and that Mr. Aloaon
nud he had it not.

Mr. Serjeant Glynn mentioned, as a far*
Imt proof of his client's innocence, that Mr.
Moma was a friend of Mr. Almon's, and that
Mr. Almon could not suppose a gentleman of
Mr. Morris's rank and character came to his
ihop with a design to inform against him, bis
Mfosing to sell him the Museum therefore waa
tpUio proof he had returned them.

Lord Mansfield observed, thai there was
•Mae defect in the affidavits, none of them men-
tioning the precise time of Mr. Almon's return*
iar the pamphlets to Mr. Miller, or stopping the
hJc of them at his shop ; he recommended this
Ibcrefbfe to be supplied, as blinking wonid
itly create suspicion, and leave more room
fcr a suspicion of guilt than it was posaible for
llie teal truth to imply : he declared be men-
liiBed this vAeiy tor the sake of clearing Mr.
Alinon ; who directly intbrmed the Court, that
^bca the magazines, &c. came into his shop,
kt waa not at h(»me ; but on bis return, he,
'roin motives of curiosity, looked over each,
lad ordered his servant not to sell any which
Stained Juuius's letter ; and that to the beat
If his metiiory, the sale of the London Mu-
taaas waa stopped some time on the first day
i publication. Lord Mansfield then rtoom-
MDded loHcijeaut Glynn to amend the afi-
JMila, uid Wing the defendant up again.

fiia kirdahip takta Iho IMicitor Qtntna if

vouxx.

there was any prosecution againat Mr. Miller*
lind being answered in the affirmative, he aaid
the defemlant had done right, in not examining
Mr. Miller upon his trial ; and then ileclared
he wondered at bringing Mr. Almon up lor
judgment before the other informatiuns were
tried, and adi^ised it to be postponed, pending
the issue of the intended prosecutions, as no
man should be punibhed farther than his peou«
liar degree of guilt, and some one might bo
found more immediately ciiminal than Mr.
Almon ; that if the counsel lor Mr. Almon
chose it, the Court would not consider him as
being brought for judgment that day, but
would give judgment any future time that the
counsel on both sitles should appoint.

Mr. Lee also spoke for Mr^ Almoh ; but aa
no arguments were entered into, it was not ia
the power of the counsel on either side io exert
their abilities, exclusive of the opening speech
of' Mr. Serjeant Glynn, in which all the use of
ability that could be made on such an occaAw
was exerted by the very able Serjeant.

The following is Burrow's Report concerning
the application for a New Trial, (see p. 839.)

The defendant having been convicted of pob*
Hshing a libel, (Jouius's Letter,) in one of tho
magazines calM the London Museum ; whRh
waa bought at bis shop, and even professed to
be ** printed for him ;"

Hb counsel moved, on Toesday 19th Jane
1770, for a new trial ; upon the foot of the eft-
dence being insufficient to prove any criminal
inteation in Mr. Almouf or even the leaik
knowledge of tlieir being soU at his shop. Audi
they had affidavita to prove, that it was a fre*
quent practice in the trade, for one publiaber to
pot another publisher's name to a pamphlet, as
printed for that other, when in fact it was puln
iished for himself. That this waa the fact io the

Iireseot case ; Mr. Miller being the real pub*
isher of this Museum, but having advertised it
and published it, as printed for Mr. Almon,
without consulting Mr. Almon, or having hit
consent or approbation. That, on the contrary »
aa soon as he saw his name put to it as being

Srinted for him, he immediately aeiit a note to
Ir. Miller, expressing his disapprobation and
disaatisfaction. That he himsett had no oon-
CKFQ whatever in this London Museum. That
he was not at home when they were sent Io haa
shop. That the whole numbier sent to his ahop
was SOa That about 67 of them had been sold
there, by a boy in the shop, hut without Mr.
Almon's own liuiowledge, privity, or approba-
tion. That as soon aa he discovered it, he stopt
the sale, ordered the remainder to be carried up
into bis garret, and took the first opportunity
to return them to Mr. Miller. That it was not
proved, that the person who sold them was Mr.
Almon's servant, or employed by him ; or that
Mr. Almon was at all privy to the sale. [Uo.
Ibis arguenth, and not io affidavit ?]

On Wednesday S7th June 1770, it caist oo
ugaiuv Midi ftriciai GlyoD aig oad tlhat iim '
91

851] ' 10 GEORGE in.

proof a^inst Mr. Alroon appeared therefore to
oe (lefectife : there waa notbingf to coustitute
criminalitv, or iniluce punislimpot.

That after the jury had l>een out about two
bour*, one of them (Mr. Mack worth) pro|)osed
a doubt ** whether the bare proof of the sale io
Mr. Almon's shop, without anv proof of privity,
knowled^^e, consent, approbation, or mulus ani-
musy in Mr. Almon hiniself, was sufficient io
law to ooDTict htm criminally of pubiishinfl^ a
Ubel."

Mr. Mackworth understood his lordship's
answer to this doubt to be this—** That this
was conclusife evidence." Otlierwise, Mr.
Mackworth was convinced iu his own mind,
that the defendant ought not to befound guilty,
upon this evidence ; nor would he have found
bim guilty. He certainly gave his verdict under
a mistake. If he had apprehended that the
jury were at liberty to exercise their own judg-
ment, he would have acquitted the defend-
ant. The Serjeant prayed that Mr. Mack-
worth's affidavit might be read.

Lord Mantfield'-Yoii know, it can't be read.

Mr. Justice Atton^^A juryman's affidavit
>ivith regard to his sentiments in point of law,
at the trial, ought not to be admitted ; what-
ever may be the case of his affidavit tending to
rectify a mistake in fact.

Lord Mansfieldy in reporting the evidence,
laid he had told the jury that there was evi-
dence of the publication, if they believed the
witnesses. And he said, he had directed them,
(as he always had done, and as he took the law
to be,) that if they were not satisfied that the
blanks were filled up in the information, in the
true sense and meaning of the writer, they
ought to acquit the defendant : and that the
epithets used in the information were inferences
of law, drawn from the paper itself ; and not
facts to be proved.

The Court were of opinion, that none of the
matters urged on behalf of the defendant, nor
all of them added together, were reasons for
granting a new trial ; whatever weight they
might have in extenuation of his offence, and in
consequence lessening his punishment. For,
they were exceedingly clear and unanimous
in opinion, that this pamphlet being bought
in the shop of a common known bookseller and
publisher, importing by its title-page to be
printed for him, is a sufficient prima facie evi-
dence of its being published by him : not indeed
conclusive, because he might have contradict-
ed it, if the facts would have borne it, hy con-
trary evidence. But as he did not offer any
evidence to re|>€l it, it must (if believed to be
true) staml good till answered, and be consider-
ed as conclusive till contradicted.

Lord Mansfield said and repeated, that Mr.
Mackworth had understood him |)erfectly
right : and he was very glad to find that there
was no tloubt of what he had said. The sub-
stance of it was, that in point of Jaw, the buy-
ing the pamphlet in the public open shop of a
known professed bookseller and publisher of

^BphletSi of a person sctiog ia the shop,

Trial of John Almon f-^

[852

primA facie is evidence of % publication by the
master himself : but that it is liable to be coo-
tradicte<l, where the fact will bear it, by con*
trary evidence tending to exculpate tbe bmi*
ter, and to shew that he was not privy nor as-
senting to it, nor encouraging it. That this
being prim& facie evidence of a publication by
the master himself, it stands good till answered
by him : and if not answered at all, it thereby
becomes conclusive so far as to be sufficient to
convict him. That proof of a public exposing
to sale and selling, at bis shop, by bis servsat,
was prim6 facie su]fficient ; and must stand till
contradicted or explained or exculpated by
some other evidence ; and if not contradidcd,
explained, or exculpated, would be in |ioiotof
evidence sufficient or tantamount to condusifft
Mr. Mack worth's doubt seemed to be, " wb^
ther the evidence was sufficient to convict tbe
defendant in case he believed it to be true."
And in this sense I answered it. Ffim6f§6ty
'tis good ; and remains so, till answered. Ifit
is believed, and remains unanswered, it becoisei
conclusive. If it be sufficient in point of Itw,
and the jury roan believes it, he is bound in cos*
science to give his verdict according to it.

In practice, io experience, in histor?, is tbe
memory of all persons living, this is (1 beliefe)
the 6rst time that it was ever doubted **thst
this is good evidence against a bookseller or
publisher of pamphlets." The constant pn^
tice is, to read the libel, as soon as ever it bai
been proved to be bought st the defendaat'i
shop. This practice shews that it is considerejl
as already proved upon the defendant : for, it
could not be read against him, before it bid
been proved upon him.

If I am mistaken, I am entirely open to
alter my opinion, upon being convinced that it
is a wrong one : but, at present, I take ibii
point to be as much established, as that ao
eldest son is, (in general) heir to his fatber.
And being evidence prima facic^ it stands, (if be-
lieved) till contrary proof is brought to repel it.

Mr. Justice Aston laid down the same maxim,
as being fully and clearly establishe<l, *' tbat
this ;)ri'md/ac{e evidence (if believed) is biDilisK
till contrary evidence be produced." Bein^
bought in a bookseller's shop, of a person act-
ing m it as his servant, is such prima facie efi-
dence of its being published by the bookseller
himself: he has the profits of tbe shop, and if
answerable for the consequences. And here if
a corroborating circumstance ; namely, that it
professes to be printed for him. It is as stroi^
a case as could be put. The sale iu his shop if
sufficiently proved : and he is answerable fx
what is done in his shop. And here is no lOft
of proof produced in contradiction or excolpi'
tion. This prima facie evidence, not answered,
is sufficient to ground a verdict upon: a"'
there appears no reason for granting a scW
trial. If he had a sufficient excuse, be mi^
have shewn and proved it. But be has not at-
tempted to prove exculpation or excuse: there-
fore the evidence of his publishing what vii
thus bought iA his ibopiaitt4 9UBd till ' "*

Earberj^t Ca$e. .

Mn. TWe nu; indeed bacireani<
rexlenu>tiop,or«ven oresculpatioii ;

were « (urpriK upou him, tb« court
iTe rcnrd to aiich drcuraiUDcca, ■■
J ii)enle<l tbdr re)^ril : bul bere wu
f proof, of tny sncb Kirt.
Hi Harris'* Ciw, [ante, v. T, p. 9J5] ;
traban, Hil. SG.i. and R«x v. Eliz.
1. SG. 9, Filz-GiliboD, 47.
Ml, Wiliei was also of a|Hoi(m tbal
I DO fouadatiuD for tbe moiiOB fur a
; and Ibat, upon all tbe circu mi lances
4UC, Hr. AlmOD nu amwerable tf

of the libel. Heiia common knoon
rand puhliiher ; and it imporU, upon
if it, to lie printed for bim; and it

A. D. 1770.

[8M

xhop. Ttiis ia lafficirnl prin^
of Ilia privity : and no contrary
■ produced by bim. It wb« liabja
I or explained ; but ai it nerer irai,
jse ahewQ, it stands gwid (oconrict

lit Athhuril entirely concurred with
nip and the rest of bis brethren, in tbe
Ibey bad laid down ; and in holding
F was not any fonndation for granlin^
a] : and he particularly espreaaed bia
j>n of lord Uansfield't answer to Mr.
rib, the jury nuD.

mrt therefore unanimously discbarged
o shew cause why there Mould not be

efeodant's counsel declined roaliing
if llie liberty which bad been reaetred
of moling in arrest ofjadgnwol.

t upon the Attorney-

' to file informatiODB against wbooi,

'hat he pleases; you cannot do better,

I, than print tbe following Cue and

gliel

from tlie duke of Newcaaile, uniler
of being author of the Royal Oak
He was carried befoire Chsrles de
Duder-secrelarf, and ordered to gife
ler haling been put to a great deal of
id expeoce, (oot much unlike the late
Ir. Almnn) and not being able to ob-
ir trial, he determined to move tbe
K.iog'1-beDcb for the diacharge of
n tbe ISth of February 1737. He
o several counMl to 0)jeu bis eause,
nnanimously refused to do it, alleg-
it would be ridiculous to raoTC against
e of tbe Court, which course was, that

rol. 19, pp. 1016. loao : Burrow's r«-
• CMe bai not, 1 apprcbcod, bng pub-

the king bad a prerogative to caJl OH a trial
vponan informatinn at his own plrasure.

This was the judgment of the court of King's-
bench, about fuur years since, when Mr, Joce-
lyn mored the Court, that Mr. Earhery (Digbt
be either tned or discbariced ; at which moUon
lord Hardwieke sal as Ion) chief justice.

tVheu the Aiiorney General came into lb«
court, be exhibited Mr. Earbery's notice to
the Court.

The Court called far Mr. Earbery'ii counad ;
Mr. Barbery aaid, be had applinl to counsel,
but could get none. He prayed llierefore lb*
Court that he might be heard in person ; which
the Court, with sreat indulgeuce and lenity,
grsnied. Tlie foHowing srgument ensued :

Hr. Earbtry. Sir, I'hate heard much lbi«
day from tbe gentlemen learned in tbe law,
on my right hand, about the course of tbe
Court. 1 am rery conlident there are no Ci-
oeros there, though there is a Knscius here.
I woubl not be understood to make tba least
reflection upon tbe honour and diqnily of tba
Court, yet I must all^, that the course of
tbe Court cannot be against tbe fundamental
laws and libeniea of the English nalioo. Thera
are three things betbre this Court to cmisider
upon. First, Tbe discharge from all prosccu~
tioos in this came. Secondly, Tbe discharga
of tbe bai). Thirdly, What you design to da
with me. If you commit uie, it follows, from
this pretended course of tbe Court, that K

Crince, when be prosecutes upon informatinns,
as a power of perpetual itDprisoninent, with-
out a trial.
Hr. Just. Page. Sir, you may wilk about

youp

Earbtry. Sir, if ray bail surreoder ii „

how can 1 walk about ? It i*ai tbe opinion of
the lord chief jaslicc Hardwieke, that the
prince bad s prerogative to suspend a trial duT<
ing pleasure. Prerngative, they aay, ia above
law ; granting tbai, it must ueverliieleas ba
coevsl with Ian. I can easily prove informa-
tions, as 10 their origin, to bo against law.
Where then did this prerogative begin? from
whence could that possibly take iu rise ? Pro-
rogative is very lerrible. This is mora fKgbt-
ful to me than all tbe rest ; as it baa takea
lucb room in your bench, we cannot be too
zealous to tear it up^by the roots, and cast it
away. If the Court will give me leave, 1 shall
proceed to shew the illegality of intbrmalion*.
I know they are rooted in your bench, and
have had so much time to grow, that 1 cannot
presume to pluck tbem up, and I know you
will uot part with them ; nevertheless, tbough
they are established by custom, they may hav«
bad a very wickeil rise, li is against the scop*
of Magna Charts, and of all our laws of li-
berty ; nay, and all the desifcos of our an-
cestors, ihst a prince should proiecole • sub-
ject sfter a civd manner f<ir criminal actions;
for ioformalions arc declarations at the kiog'a
suit. Tbe S9tb chapter of Magna Charia ia
the fbondatiOD of our liberties ; the fanwas
expltnalory itatule, 41 Ed. 3, o. 3, makes tba

«55]

10 GEORGE UL

TfiMl of John Mnon .-—

18SS

f9th ehapter plm and deiur. The woirdt are,
•< No man shall be pat to anewer without pre-
eentiiieiit before justicee, or matter of record,
or hj due process and writ original ;*' and that
act IS well Liiown to all of yon.

Mr. Jnst. Page, Writ ori^inalt (he seemed
startled) 1 will not safier informations to be
disputed here.

Earhery. I only desire to observe,' that infor-
mations are no process, for, if the Court gif es
lea?e, it will appear by mine, in my bosom,
that the attorney prays process.

Mr. Just. Page. Hare you gfot any affidarit
that you erer demanded a trial ?

Earhery. Mr. Jocelyn moved ibr roe, when
lord chief justice Hardwicke ffave that opinion
4if the king's prerogative, and for that reason
I am detained here still. I have had numerous
notices of trial ; it appears by the affidavits
how I have been harassed ; I rode all night
from the city of Bath to London, jn cold frosty
weather, that alnnost perished my limbs ; my
lodgings were watched, to know whether I
was come home or not, in hopes to surprise
me with a verdict, without a defence. When
I came to Guildhall, nobody appeared : I
moved the lord chief justice Hardwicke to
have a proclamation made for me to come in,
or a Ne Recipiatur entered to exclude them:
he promised it shonld be done, but it was not
done. On the second day, it was said by one
in court, whose name 1 forbear to mention,
that I had no notice of trial at all, though I
bad an affidavit of notice in my pocket.

If we proceed to consider the nature of the
informations, if the Court will permit them to
be read, there is not the least face of a libel in
either. Particularly the first is so far from
having the face of a defamatory libel, that it is
a panef^yric.

Mr. Just. Page. We cannot permit that : as
you have pleaded, the merits must be left to
a jury ; we cannot have the informatioDs read
now.

Earbery, If they had been read before,
which mv counsel insisted upon, these absur-
dities could not have happened. The Court
would have rejected them as frivolous ; tliere
was indeed, one reason, why the reading was
opposed, viz. the frainers were ashamed they
suould come to light.

Mr. Just. Page. I remember the motion to
have the informations read very well.

Earbery. By this method of not having the
informations read, the machinery is carried on
by the clerk and Mr. Attorney, to impose what
they please for a libel, and make the Court give
a sanction to it, who are kept out of the secret.
I know a great man, whp told me, af^er perusing
the copies of the informations, that lie could
not conceive, if he had not seen them, that such
stuff shouhi he composed.

Mr. Just. Probyn. Do you assert, and will
ou staud by it, if called in question, that the
ord chief justice Hardwicke said, the king had
a prerogative to defer trials upon inforinatioiii
during |»leasure ?

I

Earbefj. I w9l inoat apMi it, tiMt basH
that the Comt had no power to dbthiigi, aar
any power at any time to bring on a triaL

Mr. Just. Page. Look you tlMfOy now hi
falls back again. We base an undoaUed lUt,
if applied to, upon delay of trial, to order i
trial: Mr. Attorney, will you try tho eavN
next term?

Attorney General To toil yo« tlw tralli,
we designed to hive tried it tbb term, bat wt
just wanted a little evidenoe, whioh wo sUl
prepare against next term. [Note, they hsis
had time from Michaelnaa term 17S9, to tfcii
present term, 1787-8.]

Earbery. Sir, I do not aeknowMgo that I
ought to be tried at all ; I move for a dii*
charge.

Mr. Just Page. Do yon see now, before fsi
wanted atrial, now you would have no triaL

Earbery, Sir, 1 move for a dischacge, if[
can't have that, I desire my recognisanoa Bsy
be withdrawn.

Mr. Just. Page, No, that cannot bo done.

Then Mr. Attorney broke in with a came of
the King against Sloaoy and the arguoical
ended.

The Argument intended for the Court tf
King's-Bendh, Feb. 13, 1757, by Mr.
Earbery, concerning Informations.

As Mr. Earbery found the course of Ibi
Court a very formidable objection in his «sj,
he was obliged to change his method, aad ti
begin with that.

The following arguments were what he pia-
posed to use, if he bad not been interrupted bf
the Court.

My lord ; mjr first proposition is, that ioA^
mations are against law.

I confine myself here to informations at the
king's suit merely, when a hill is drawn up^
the Attorney General, ami found by himfldi,
for an injury concerning which a grand jury
ought to enquire.

These injuries are supposed to give the kiB|
a right to damages, which are given partly is
fine, and the rest in corporal punishment.

An information therefore is a declaratioa it
the king's suit, aud is prosecuting the sabjeiA
aUer a civil manner for criminal actions.

This is contrary to the scope of all our lawf
of liberty ; to the whole view of our aoceston ;
to the sense of the 29th chapter of Bla^
Charta, and the explanatory statutes wiiicfc
were calculated to confine all these matters !•
grand juries.

If the crown is allowed to engross conow
injuries, it may with greater reason take ii
treason and felonv; for the king veeriw
greater damages by them than by coniait
misdemeanours.

Our laws of liberty are express. That ibi
crown shall not go upon any actions that aM
the liberty, possessions, or corporal ease of tk
defendant. The words of the 89th chapter ff
Magna Charta are, * oullot liber hoflit ^

»71

Ettrhttfft Ckui*

A.D. mo.

tBBI

liiliir/ ifcall km takeo, * mat i»pritMMl«r,* Mr
10 impriiooed, * aut disMtieUnr de libera ies»-
nentoMiOy' or li«fe hit freeboM taken firoei
iiBy ' f el de Uberia coneoetiidiDibat,' nor hit
i^hi$ and privileges, * aut exulet,' nor ahaU
M be baniabed, * aut vtlegaftur/ or oat* la wed,

aot alio modo deatruatur,' or by aay olber
Deans demoliabed, * nee auper euoi ibiaoua aat
nittemiafl.' (The lord chief justice Coke'a ex-
Jaoation b, we wiU neither proceed upon bim
coram nobis,* in the King's-bench, nor by
ommiiaioo ;) nor will we go, or aead upon
lim, ' nisi per legale judtciam parium auorom,'
inl€«a it be by the lawful judgnaent of his peers,
aut per legem terrse,' or by the law of the
ind. S8 Ed. i. Your lordship may please
9 observe, that all the penalties then m being,
re here mentioned, aa the known rules of law.

Bat lest any dispute should arise, what was
seant by ' lex terrseet legale judicium parium
■Oram,' we have the explanatory statute,
9 Ed. 3, c, 3, which makes the whole as clear
a the sun at noon-day.

Mo man shall be put to answer without pre-
entroent before justices or matter of record, or
y doe process and writ oi%inal.

Now, my lord, the course of the Court is,
*hat if a person is upon his recognizance, and
barged with an informatitti^ he shall be put
» anawer instantaneously, without presentment
y justices, without matter of record, without
rucesa, and without writ original. %

That an information is no process is plain,
t>m the common form of concludinir, praying
rooeaaof theCoort,as mine runs; ** Whereupon
le said Attorney General of our now said kN^
le king, prays the consideration of the Court
1 the premises, and that due process of law
toe against biro the said Matthias Barbery."

I f we look farther backwards to the preamble
r this act, we shall find it was levelled to ez-
lade informations, or proceedings equally as
id. The words are, ,.

'* At the request of the Commons, by their
etition put forth, in this parliament, to eschew
le mischief and damage done to divers of his
boimoDS by false accusers, which oftentimes
STC made their accusations more for revenge,
sd singular benefit, than for the profit of the
io^, or of his people, which accuaed persons
Hnetimes have been taken, and sometimes
luaed to come before the king's council, by
fit or otherwise, upon grievous pains against
i« law, it is accorded, for the good governance
r the Commons, that no man be put to an-
srer, Ike.**

We must observe this method is said ori-
isallv to be against law, that Magna Charta
'aa elad4Mi, that this act was contrived to give

new vigour by those restriogent lines which
aond op all ita bleeding wounds.

1 observe, my lenl, that this, and several
Ibar nets were pointed against bringing people
s answer by sugjjfestion, which is only another
rord for information. I do u<»t imagine at that
ioM of day, whan the acts were fresh, and in
bdr foil f igour, that any miniBicr of a piinoe

I iTttold ptafav A mggiastiaB to tba KiBg'ibeBcb.
> That Caurt afar acted by the known maxima of
oomoiOB law, by rules^ certainty and oatha;
the aaatbad then waa, to send ministerial par-
suivants to snatch the obnoxioua roan away,
and to convey him by back staira np to the
privy oouneiL The grievoua pains mentioned
mtbeacty I suppose, were the motherly ad*
oBonitiona of the rack, that engine of tyranny,
atill to he aeen, though not need amongst na.

Bataa often aa the Commona met, and found
out these secret practices, so often were thej
bleated by tbeee memorable acta of our eon*
atitution.

If we view the preamble of our modem ia-
formations, my lord, we shall find they dificr
not in the leaat from suggestion. Thus,

<* Be it remembered, that air Philip Yorke,
knt Attorney General of our aovereign kn^ the
king, who for our aaid lord the king, in his be*
half, proaeeotes in his proper person, comet
here into tH^ coort of onr aaid bird the kin|^,
before the king himaelf in Westminster, 6ce»
and for our aaid lord the king givea the Coort
here to understand and be iofonned, &c.'^

1 think this very information is no mora
than a suggestion oi^ a minister of the king,
not supported even by oath. If Mr. Attor*
ney 's word is so strong, so magical as to render
his single faith the alrongeat testimony, I think
we may submit to a bow-striog.

I shall now, my lord, intr<^ace another net
previous to this, which blasts at once the root,
the branches and the blossoms of informatiooa,
at one puff. This act was 95 Ed. S, c. 4.

*' Whereaa it is contained in the great fnuH
ebisea of Magna Charta of England, that non#
shall be imprisoned, or put out of his freehuklf
nor of his franchises, nor free customs, unlesn
it be by law, it is accorded and asaented, and
established, that from henceforth none shall
be taken b^ petition, or auggeation made to our
lord the king, or to his council, unless it be
upon indictment, or presentment of his good
and. lawful people of the same neighbourhood:
and where such deeds be done, in due manner,
or by proceaa made."

IV hen we compare this act with the Attor-
ney-General's coining before the king in West*
minster, witli his information in his band, my
lord, he starea the act full in the face.

I could proceed to the other explanatory
statutes, all to the same purpose, particnlarly
18 Ed. 3, c. 3 ; S8 Ed. S, e. 3.

In the face of all theae acta, we find only the
bare sugflfestion of an attorney-general stand
instead of a process, and instead of that cer-
tainty the defendant baa an undoubted right to,
as our ancient courta of judicature always ra*
quire. In these acts, certainty is provided for,
before the defendant is brought to a trial, by a
bill Ibund by a grand jury. By the modem
practice the aubject comes to no certainty, no
evidence till he comes to a trial. I deaire year
lerdship to observe, that very near five yaart
hate paned ainea 1 pleaded, and am arriied at
ne etr|«inty yoi

869]

10 GEORGE in.

Tridt of John Almon .*—

[860

The reitOD appears feiy plain to me why a
proeeas was so Teheraently insisted upon by
onr ancestors : it was because it issued from
courts of justice upon eTidence, independently
of ministers of state.

But, my lord, the defendant finds no process
BOW till he is summoned by the Conrt to plead,
if that can be called a summons. He is obliged
to answer by being demanded to appear before
any summons is sent out : how different is this
from the nature of a process ? It is only a sum-
mons to plead to the suegestioo of an attornev-
g^eral. The charge does not come from the
court, and from e?idence, but from a charge
fereigti to the court, without any evidence at

A process is always attended with a certain
charge expressed in the body thereof; an at-
tachment runs thus, * Attachialur pro con*

* tcmptu.' I ha?e seen one thus, * Attachiatur

* pro conlemptu,' commonly called a forgery :
but a summons to attend an attorn^-general's
suggestion, as a bill, is setting aside tbe whole
intent and scope of those acts our wise fore-
fathers made, to fence us from the power of
the crown.

But as we see, my lord, these practices (so
opposite to Magna Charts, and the explanatory
statutes) rif etted by custom in this court, 1
•hall hefi^ leave to say something to that part ;
only I kball previously premise, that the fre-
quent statutes, all to the same purpose, crowded
together in Ed. 3d*s rei^, were owing to the
meroaehments of the privy council, who were
continually breaking in upon those sacred laws,
by bringing subjects before them, and playing
a thousand tyrannical tricks, in the wildoess of
their power. The wakeful Commons drove
the sea back, and mended the breaches made
upon us by those inundations: whereas we
were all safe in the king's courts, which moved
with gravity, by legal precedents in the steps
of law. ^

From whence did informations insinuate into
your bench ?

The first formal act of our constitution,
which favoured the proceedings of the council,
was made 31 Hen. 6, quoted by sir £dwai-d
Coke, title Star Chainiier.

This does indeed give a power to the coun-
cil, very inconsistent with these acts. See the
Roll, 31 H . 6, c. 3. But if we consider this
was passe<l in %ery troublesome times, after the
civil wars, which were just skinned over, and
Hen. 6, was in effect deposed, and the duke of
York, under the title of Protector, governed
every thing, no great stress can be laid upon
this act; and, as it stands, it was only tem-
porary, to continue for seven years.

It seems calculated to serve the ends of the
duke, to bring his enemies into his power ; for
it is aimed chictly at the nobility and great
peers of the realm : but if we view an excep-
tion towards tbe latter end, omitted by sir Ed-
ward Coke, we shall find, that though the
council had a power to call them by sugget-
tion^ they were remitted to be tried in the com-

mon courts, according to the old law. nis is
00 proof that informations were by that set io-
trouuced into your bench, nor any new fbrms
allowed. Informations, as sir Francis Win-
nington observes in Prynne's case, 9 Will, k
Mary, were introduced in Henry rtb'a reign.
This gentleman undertook to shake inlbnna-
tious by a very learned argament, to which I
think he had not very learned answers.

Permit me then, my lord, to make a few ob-
servations upon that reign.

We have got the evidences of sir Edwiid
Coke and the lord Bacon — We bate got tbe
Courts of Assize which banged Empaon aa^
Dudley, that no reign was so tyrannical sioee
tbe Conquest to the subject : there were tvs
acts then passed, that finished our slavery;
the one was the act of Star Chamber; ths
other was to empower justices of the peaces
acting only by commission from the crown, ts
inquire without grand juries ; a third act wsi
passed to secure the contriver's brains from be-
mg knocked out by the people.

As to the first, there does not, in the prean-
ble, appear the least reason to conclude, tui
the king could proeeed to informations by hit
attorney^ without a grand jury.* Thewordi
are,'

** By onlawfui maintenance, giving of
liveries, signs and tokens, and retainders by in*
dentures, promises, oaths, writings, or otbe^
wise ; embraceries of his subjects, untrue de-
meauings of sheriffii in making panels, ssd
other untrue returns, by taking of money, bf
injuries, by great riots, and unlawful assem-
blies, dice, and for the punishing of these incos-
veniences little or nothing may be found by es*
quiry," &c. The court of Star-chamber vai
erected up'in asupposeil defect in grand jurici^
to find out crimes hy bill and evidence.

Surely if the kini^ could then proceed by is-
formation« it must liave had a place in the pre-
amble. Your lordship may see thioujfh the
mask. The parliament could have no notice
of previous informations iu the KingVbencls
when they passed this act.

I desire to observe to your lordship, thst io«
formations in the Kind's- bench differ widely
from the Star-chamber ones. The judges who
sat there were the greatest <»ffieers in the kio{(-
<lom, and the churchmen of the first rank.
When a bill was brou^ht by the Attorney, it
was read, and the persons were summoned is
to answer ; nor was the hill found before a fol
examination was taken. What I have said be-
fore, my lord, bhews that in your bench tbe
defendant, if he is upon recognizance, ansncrf
instanler, nor doi>8 your bench take any
cognizance of the information before tbe de»
fendant comes to his trial.

I shall proceed now to the second act, wont
than the first: hear my lord chief justiO
Coke ;f << Against this antient and fundameotil

• 3 Hen. 7, c. 1.

• 3 Hen. 7, c. 1.

+ Coke S Inst. p. 51. 11 Hen. 7, «. *
Repealed 1 Heu. 8, c. 6.

»]

Earhery^s Case.

w (Magna Charta, cap. 29) and in the faee
ereof, I find an act of parliament nade, that

well jutilices of assize as justicea of the
mee (without any finding or presentment by
e verdict of twelve men) upon bare iuforaia-
Ni for tbe king before them made, should
ive full power and authority, by their discre-
ra, to hear and determine all offences and
tDieropts committed or done, by any person
persons, against ihe form, ordinance, and ef-
ct of any statute made, and not repealed, &c.
y colour of which act, shaking this fuiida-
ental law, it is not credible what horrid op-
tssions and exactions, to the undoing infinite
imlM;rs of |)eople, were committed by sir
ichard Empson, knt and Edmund Dudley,
ing justices of peace throughout ail Eug-
nd ; and upon this unjust and injurious act
a commonly in like cases it falleth out) a
iw office was erected, and they made them-
Ives masters of the king's forfeitures."
Liet us hear the lord Yerulam.
*' They did not insist upon justice ; indict*
enti were become burlhensome and unneces-
ry records. They sent forth their warrants

take men, and without Crowding Westmin-
nr-Hall, would convene them to their own
»08es, and without juries determine upon
eir estates and fortunes." v
It is not doubted but that they extended their
fant jurisdiction beyond the limits of the act,
r, as the lord Verulam farther says, ** They
ied to charge the subjects' lands with false
Durea in copite, by finding false' offices, re-
siog to admit men to traverse tbose false
Bees by law. If any were outlawed, the law
aa strained to its rigour, to amount to the for*
iture of goods and lands." «

Afler this terrible preamble, in which we find
formations solemnly condemned by the two
reatest lawyers in England, 1 am now come
I the origin of them in your bench.

In the report of the committee of the House
r Commons appointed to view tbe Cottonian
brary, and other records in this kingdom,
an. 1732, I find the report of the coroner in
le Crown-office, William Bellamy, whose
iterest it wai* to stand tooth and nail by infor-
lations, they l>eing the source of tlie greatest
art of his wealth: he says, the early records
egio 1 Ed. 3. If so, we may surely expect
> fiod the antiquity of informations, because
^ says the bag rolls contain an al»stract of
vary prosecution by indictment, appeal, infor-
pation,&c. He says, with regard to informa-
MNifl, they were very frequent in Henry 7th,
ad Henry 8th's time, and long before.
, As to their being in Henry 7th's time, 1 be-
^t bim,but that there were any before I can-
^ believe, because I am very well assured of
be oootrary ; it looks moreover very suspicious,
bat the gentleman should begin at the middle
■f bis antiquity.

I can easily account how informations came
Bto the King's-bench in Henry 7th's reign.
Hie act above ipentioned ^ives power to courts
If amei to enquire without grand jurjet ;

* A.D. moir C86f

the eeaft of King's -bench, being a court of
Oyer and Terminer to Middlesex, it waa in*
eluded in the act. Sir Francia Winniogton
dates informations no higher, nor is there the
least shadow of proof they were ever heard of
before.

Thus, mj lord, we are sufficiently dear as
to the origin of your informations. I shall
next pursue them to their present growth.

Sir Francis Winningtou observes, that hi
Rastal's and Coke's Entries, there are no infor-
mations, but only upon penal statutes ; and in
Rastal, says be, there is hardly one informa-
tion. See Pry one's Case, Modern Reports, p.
5.*

Thus informations, in the manner I stated *
them before, slept, aAer the repeal of the act
(1 Hen. 8, c. 6,) to the 5 Car. 1. I suppose the
case was thus : [See the Case, vol. S, p. 393.]

Hollis, Elliot, and some others, bad been
very troubleaome in the House of Commons.
The clamour being against the severity of the
Star Chamber, a lawyer finding these prece-
dents of informations in Henry 7th 's, reigo,
mentioned since in Mr. Bellamy'a Report, a
prosecution was formed by way of information
m the King's-benclK Tliis was tbe first iink,
and a pretty long one, from Henry 7 to Chades
1. After this, as sir Francis Wmningten ob-
serves, they slept tor king Charles 2. ** Afler
which (saya he) they were sometimes made
use of, but very rarely neither." He says
moreover, he remembers very well, lord chief
justice Hale often said, '* That if ever infor-
mations came into dispute, they could not
stand, but must necessarily fall to the ground."
He says moreover, ** informations at first were
never questioned, because they were so very
rare, but of late times they have been more
frequent than ever." Sir William Williams re-
plied in a very weak manner ; Dolben and
Holt were judges, yet none touched upon in*
formations, as stated before. I c6ncluoe, that
informations merely at the king's suit, for
matters concerning which a grand jury may
enquire, are directly contrary to tbe scope of
Ma^na Charta, and all our fundamental laws
of liberty. "

I observe, my lord, that Magna Charta, and
all those laws of liberty were confirmed, 18 Will.
3, c. 3, which makes them laws, de naooy as
they were before, in the Petition of Right ; and
that no prescription can deprive us of the be-
nefit of them, even though an act of parliament
could be produced before that confirmation.

Thus, my lord, I have traced informations to
their suring-head, and a very dirty, muddy
spring It is; sir Francis Winnington basin-
formed us, how they swarmed after the Reyo-
lution. Since 1 came to act a public part as a
writer, indictments for libels have entirely ceas-
ed. I can remember none after one against

* Tbe Report is in 5 Mod. 459. See also.
Holt, 368. See also Rex v. Abraham, Comb*
141, 1 Shower, 4«. Bex v, 0erchet| 1 Shower
10^.

863]

10 GEORGE m.

Trki tifJckm AhnoA .*—

[8M

niyaelf, nineteen years ago; so that by excises
and iDformations the doinioions of grand juries
are so narrowed, tUat they bear the same pro-
portion as Portugal does to Spain ; one slip of
bnd is Britannia's jointure. My lord chief
chief justice Holt said, informations were com-
mon law, that is, the custom of your court is
common law. 1 f that sort of common law can
prescribe to Magna Charta, and all our statutes
of liberty ; if the suggestion of the plaintiff
against the defendant is absolute {>roof, my
lord, I will go to Constantinople, and kiss the
grand seignior*s patent for a bow-string.

In the case of Kendal and Roe,* the same
lord chief justice said, the secretary of state's

Eower to commit Was common law. I have
eard it likewise said, that the practice of 45
years is above Magna Charta, and an hundred
acts of parliament. I am coufide(it your lord-
ship abhors this doctrine. Common law, at
this rate, is more tyrannical than all our kings
since William the Con<|ueror breathed his last.
My lord, I have felt m my own person the
power of informations. I was bound over to
answer to one, and to good behaviour six years
in the last reign, and five in this. I am told,
the scheme is to keep me under these circum-
stances during this reign. 1 hope this day,
from the candour and justice of your lordship,
better things ; that yon will lift up Britannia's
drooping head, mq tell her. Magna Charta
shall live.

The preceding article 1 take to relate to the
following Case, which is extracted from Bar-
•ardiston's Reports, vol. 8, pp. $93, 346.

«*The Kino and Dr. Earbery. '

•• Trin. Term, 6 G. 2, 1733.

*' The defendant had siven notice to the At-
torney General, that he should move the Court,
that his recognizance should be taken off the
file and discharged, for certain errors appearing
upon the face of it. He said he had been taken
up by a warrant from one of the secretaries of
state, signed De la Faye ; and he conceived
that this warrant ought to have been signed
with the name of the secretary of state himself,
and not with the name of one who was but an
officer under him. When he was brought be-
fore the secretary of state upon this warrant,
the secretary of state committed him ; and
since a private justice of peace has taken
upon himself to bail him, requiring him to enter
into this recognizance. No man, he submitted
it, has authority to bail another, unless he is
equal to the person committing. A justice of
peace is an officer interior to a secretary of
state ; and therefore he conceived that this re-
cognizance must be illegal. He observed far-
ther, that the terms of this recognizance are,
that he shall keep the peace ; and likewise that
he shall appear in the court of King's-bench, to

answer such matters as shall be objected against

*— i— >— — ■■■■ ■■ — *i— ■—— ■

• Set vol, J2, p, 1899.

him. He did agree that a jastioe •f peace has
authority to bind over to the aesMOiis ; bvt this
was the first time that he ever heard that they
had authority to bind over to this court. And
to shew that they covU not have such an ai»
thority, he appealed to the statute of Ig £dw.
3 ; 37 Edw. 9, 18; 49 Edw. 8 ; and 1 & 9
Phil. & Ma. He took notice farther, that be
had entered into this recognizance so long age
as Mich, term last; and no infonBatkm has
been filed against him, nor has he had one sb-
gle charge during all this time. The Cosit
said that they believed it was usual for tdis
secretaries of state not to sign these warraaH
themselves. To the second obfection tbcj
could not enquire into it upon this oMtioo ; be*
cause the notice is, that the Court will be movfil
to dischaiige the recognizance, for eirors a^
peering upon the face of it. To the third they
said, these recognizances are very frequent is
this court ; and therelbre they should certainly
not order the present one to be taken off ttie
file upon motion. If the recognizance is ille-
gal, the defendant has his remedy another ws]^.
To the last objection, they did agree that if
there had been a year passed from the titse
that this recognizance was given, and no pf»-
secation against the defendant, he wooM btrt
been intitled to be discharged. But till tbcs,
by the rules of the court, he cannot; acoord-
ingly the motion was refused."

" Mich. 7 Geo. 2, 1733.

** Mr. Josiing moved, that a certain reeif'
nizancc, by which the defendant was bound lo
appear in this court, might he taken off the file;
that so much of a rule of this court, as relatd
to the defendant's appearing to this reeogm-
zance, might be discharged ; that the defefl*
daot's papers, seized by virtue of a warrtnt
from one of the secretaries of state, might be
restored to him ; and that a satisfaction might
be awarded to liim for tlic imprisonment be
suffered under this warrant. He took notice
that some time before the beginning of lait
Michaelmas term a warrant was issued forth
in the name of the duke of Newcastle, one of
the secretaries of state ; which was directed to
two of the king's messengers, requiring tbesi,
taking a constable to their assistance, to make
diligent search in the house of the defendaat,
the author of a treasonable paper, intitled *Tbt
Royal Oak Journal,' for all papers of what
kind soever, in his custody, and to bring the
said defendant with the said papers before hiB'
The messengers, without taking a constable to
their assistance, entered into the def'eudaot'f
house, seized his papers, and brought tbfiBt
together with the defendant, before Mr. Del*
Faye, who was the duke of Newcastle's sedt*
tary, and a justice of peace. No one vH
examined by Mr. De la Faye, to prove thedr
fendant to l)e the author of this paper ; nor did
the defendant confess it. However, Mr. De h
Faye told the defendant he must commit hiflii
if he did not enter into a recoguisaMe fai l^

165]

pAttherifs Case.

■um of iOOK with tvro sufficient Imil, condi- |
lioDed for bis appearance in the court of Kitig's- I
beocb the first day of last MichaeUims term,
and not depart the court without license. To
a?oid being committed, the defendant with two
Buffictent rail entered into 8ucb reco^^niaance ;
and the recognizance was signed * Ch. ])e la
Fave.' The defendant appeared in the engirt
of King't- bench on the first and last day of last
Michaelmas term, and on the first and last day
of the three following terms ; but on the last
day of Trinity term last, as soon as he bad
moved to have his appearance recorded, he
prayed to be discharged. Upon this the Attor-
ney-General exhibit^ two informations against
iiim in open court, and moved that he itii^ht
be charged with them. Mr. Mastermah ac-
cordingly demanded of the defendant, whether
he appeared to them. The defendant did not
by any open act either assent or dissent to the
question demanded of him ; but insisted, that
tbe recognizance by which he was bound over
to this court, was illegal, ahd that he ought to
be discharged from it. The Court told him
that they could not discharge his recognizance.
Upon that be went out of court, and tne officer
recorded his appearance to the informations.
This Mr. Josling said was tbe state of the fact ;
and upon this state of it be apprehende<1 that
bit motion was regular. He said he should
not contend but it bas been resolved, that a ae-
cretary of state's warrant to stize a person
suspected of treasonable practices, was legal.
But this resolutiou w^s but a late one, founded
ooly upon precedents, and not one ancient re-
lolution in tbe books to justify it. Howerer it
never was yet resolved, that a secretary of state
could grant a warrant to seize a person's papers,
aod it manifestly is against the rights and li-
berties of tbe subject. As tbe warrant itself
ivas illegal, so was the execution of it likewise.
For it was done without the assistance of a
constable, and the defendant not brought be-
fore the secretary of state himself, as the war-
rant directed, but a secretary undiT him. He
then objected to the recognizance ; he saiil he
abould not contend but there were precedents
to justify a justice of peace in bindmg a man
over to this court : but there was not one
resolution in the hooks ancient or modern to
jostily such a practice. A justice of peace
bu a jnrisdiction which is confined within the
bounds of bis county. And it would be a matter
very inconvenient to the subject, if it should
once be settleil for law, that a justice of peace
ID Cunil>erland 'might bind a man over to this
court sitting at Westminster. The manner of
liking the present recognizance was illegal
^) 10 as much as there was the oath of no
^t uor the confession of the party, at the
time it was required of him. The form of it
H likewise bad ; for the defendant is bound
over to appear at the court nf King's -liench at
Vettoiinster ; whereas the stile of this court
M * coram re^e ubicunque;' it is not inserted
^ the recognizance for what cause he is to ap-
pear ; ibe recognisance is signed too, Cb. de

voju XX.

A. D. 1770. [866

la Faye ; so that tbe Christian name of de U
Faye is imperfectly set out ; and it no where
appears in the recognizance, that he was a
justice of fieace. Mr. Josling then spoke to
the appparance of the defendant ; and sub-
mitted in tbe first place, that the defendant in
fact did not appear to these informations ; and
in the next place that be legally could not. He
did agree that when the question was asked the
defendant, whether he api>eared, he did not in
words directly refuse it ; but he contended that
the recognizance by which he was brought into
court was illegal ; which was the same thing as
if he had in words directly contended that he was
not obligcil to apfiear. He submitted it therefore^
that when the officer of the court demands of
the party whether be appears, the party insists
that be is not bound to appear; the Court
tells him that he is bound to appear, and if he
does not his recognizance will be forfeited;
tbe party upon that goes out of court, thattnay
as well be construed a departure without li-
cense, as an apiiearance; for which reason
with regard to the fact he submitted it, the
officer cud wrong in recordio^ that the defen-
dant did appear to these informations. But
supposing the fact to be that he did submit %6
appear ; yet as the recognizance,, which is
iu the nature of a process, to bring the party in
to appear, was illegal, for the reasons be had
before given, he conceived that the appearance
could not be legal neither ; and for authorities
to support the several parts of his argument
he cited Godb. 118, 147. 39 H. G, 27. Arch-
bishop of Canterbury's case, 4 Jac. 3. Sid. 32.
Lut. 951. Uil.4,7> Lamb. 89. Cr.3, 646.
** The Chief Justice said that in the case of
Kendal and Roe, it was settled upon solemn
debate, that a secretary of state might issue
out his warrant to apprehend the person of
any man on suspicion of treasonable practices ;
and therefore did not think that that part of tbe
present warrant would have been disputed al
this da^. As to tbe other part of it, with regard
to seizing the defendant's papers, be would not
qive an opinion, whether it was legale or not.
This Court could not make a rule upon the
messenger, that did seize them, to restora
them ; and therefore that question was not
properly before tbe Court for their determina-
tion. There was no occasion to determine neii
ther, whether in general justices of peace have
authority to bind over to this court. The per-
son that did this in tbe present case, was a jus-
tice of peace for tbe county of Middlesex,
and undoubtedly be might hind over to
this court ; this court having a jurisdiction of
Oyer and Terminer for that county. How-
ever he had before him several preceileots
of justices of peace of other counties biud-
ing over to this ' court likewise. He had
likewise before him several precedents of re-
cognizances taken by judges of this court and
justices of peace, wherein the stile of their au-
thority was not inserted. He had seen several
too, which arc only in this general form ad
respondendum, ike, Aud ai to tbe other ex.
3K

867J

10 GEORGE III.

Trial of John Almon,

|a6B

eeptions, with reg^aH to the form of this recog-
nizance, if tliere was kny weight in them, the
defendant might hare taken advantage of them,
if a Scire Facias had been brought upon it.
But what the defendant has done, has in
Judgment of law amounted to an appearance ;
and as that is so, all defects in the recog-
nizance are thereby cured ; for this nnrpose the
chief justice mentioned the case of Widrington
and Charlton, Trtn. 1 1 Anne. That was an
appeal of murder ; the defendant did not ap-
pear till the £xigent ; and when be did appear,
his appearance was entered in the moslcaultoos
manner that could be, for it was in these words,
* Et pivdictas defendens, satris sibi omnibus
^ ad?antagiis et ezoeptionibas tam ad breTe
' originate qnam ad nrocessum, venit ;' and
thereupon for faults in tne Exigent he demurred.
XiOrd Macclesfield, Mr. Jostice Eyres, and Mr.
Justice Powis held, that all defects in process
were cured by the party's appearance. Mr.
Justice Powel indeed was of another opinioii,
as this wa^ a Writ of Appeal ; but agreed aocfa
defect would ha?e been cored by appearance'
in every other action.

** The rest of theConrt agreed with the Chief
Justice in the present case \ aoc<n^mgly the
motion was disallowed of."

See, also, another report of the same case
in W. Kelyng, p. 161. In 8 Mod. p. 177,
' Fortesc. 37, are two reports of the King v,
Earbery, which I suppose rdate to this same
peison, though the points are not the same.
Foftescue says, ** Earbery was a worthy ho-
nest clergyman, and a good divine, bat was
drawn in by some of nis party to write a
pamphlet, in wjiicb the ministry thought there
were some scandalous reflections upon the go-
vernment."

In the preceding Report of Almon's Case
are some tncorrectneisas which I have not ven-
tured to alter.

As to the proceeding for an attecbmcnt
against Aknon, in respect of thepnUication of
the * Letter concerning Libels, Warrants, Sei-
zure of Papers, &c.' see fol. 19, p. 1089, and
lord chief justice Wilmot's Notca of Opinions
and Judgments as there ched.

Concerning the non-examination of Miller,

&835, see what Mr. Donning said in tbe
ouse of Commons, reported 16 New Ptai.
Hist. p. 1«79.

Of the conversation which passed betweeo
Mr. Mackworth and lord Mansfield, p. 8S8,
see Mr. Mackworth's accovnty 16 New PmI.
Hist. pp. 1149. 1189.

Mr. Burke, in the debate upan a motioa tf
the late lord Mulgrave, respecting tbe Inftr-
mation cjr cffide^ anhnadverted upon this

of Almou, see 16 New Pari. Hist pp. 1153,
1153. 1199. See, also, tbe Reply of tbe At-
torney-General De Grey, pp. 1155. 1194, of
the sanne volame.

To tbe words *< they had affidavits," p. 850,
1. 38, Mr. Serjeant Hill had written in hit copjf
of Burrow the following Note :

*< Tbe facts in the aMavits oaght to btvt
been proved at the Trial r as they were not,
nor any reason given why they were not, tbcj
could not by the knomn course of tbe cent,
nor ought in reason to bave any weiglit, os «
motioa for a new trial ; therefore there niH
be some mistake in this report; perhaps Ibcj
miglit be read in extenoation of the piHMb*
ment, i>ut certainly could not be for a asv
trial ; onless as above intimated, tbe afidsvin
bad gone further, and fp!fea some good rssiei
why the facts in the affidavits were not piwe^
sucn as sudden illness in defendant's wttncsKi^
or non^ttendance, though s^ved with fu^
poenas, for sickness of the witnesses, if not
sudden, would not be sufficient, but ttie defes-
dants should have moved to put off the trill"

See, also, 9upr, pp. 844, 845.

1

Trial ^ John Miller.

[870

. The Trial of John Millek, Printer, before Lord Mansfield,
and a Special Jury of Citizens of London, at Guildhall, for
re-printing Junius's Letter to the King, in the London Even-
ing Post, of the 19th of December, 1769: IOGeobge IIL
A.D. 1770. [Taken in Short-hand *]

Speciu, JtrRv.f
el AtfaiwM, of Miriiii's-lane.
7 Voywy, Clemen IVI inc.
b LsDCwter, Green Lettice-lane.
imOill, AWhurch lane.
Whiiniore, LAwrence PonltDej-kae.
ift Redshaw, St. Peter le Poor,
im DeTJame, Btriholomew-laDe.

Teleimeii.
un Cut, of FarriD|:doa WJllioul.
im Waiher, BUhopsgala Witbio.
[s More, FarrinKilnn.
a Woodward, Betl-yard, Graccchurch-

inl Ajrm, Bitliopagal*- street.

I CMC irai opened by Mr. Walker.—
record ttsted, that the defendant, Jobc

a paper, eotitled. The London ETening
Salurilay, December Ifilh, to Taeaday,
nber 19th, in vrbicb vrai coatained a
D libel, reflectlnt; upon the Ktnr, the
liatratian of j^oterninent, hia principal
t of state, and the meinben of the ban.
i of CoiumiiDa, in tbete word*, [Tbe
read.]; Tbe defendant pleaded Mot

r-

. General (Tburlon). Pleaac your lord-
aad you ifenlJemeu of the jury, 1 am hkr-
'fcouDsel fur the crown in tlii« protecution,
I in brDUKbt by the Aitorney Gentrat
(t Jobu Miller. I hare *ery aelaom tbutid
Tmore puzzled howtnitatea^ueatioo toa
and in what mannar to adapt rt to a court,
( am upoD tbe prewnl - - ' "

in reading over tbe paper ilaelf, and in coiiridera-
IJoa of tbe prmili that are to be laid Iselure yon,
I abould bare thought it a ca«e so plain, and
in ao ordinary a courae orjuMice, that it would
absolutely be imjioaalble to bare miuaken,
either the applicatino of the ifionfi of tbe
chaq^ Ibat are laid, or the conotuaion lo be
made from ibcn>. 1 bare not of myself been
able to imagine, nor hare I learnl from ib«
coorertalion of any one roan, ibai ibere ia ft
aeriona mn of Ibe pratesrian in the kingdom,
wbo baa tbe aniatlest doubt whether thi* ought
to be deemed a libel or onl : my tpeinory de-
aerta me exceedingly, if itie learned e^nileroen
who apoke uf this aubjtct belore, did any time
rcQture lo aay, in m many plain vordsi, that
Ihe eontenta of tbal |faper were leaal aiid
iuQocent. 1 am mittakeo if they did. Jl
aeeisa to me impouible that tai^ii au idea
can be formed ; tut ioitead uf it, if I re-
; member it right, Irum the general anil looae
1 diacouTM «f them, oonceroiDg the liberty of
' the prcM, it wa« a lanre and lutdefincd auk-
ject, conceroing (lie right of iodiriduaja W
apeak, to irrite, to publiab with freedom, tfaap

Published in the London Muaeum (of
I Miller was the publiaber) for Oatober

Owing (o a neglect of ibe
', only aeren of the Special Jury allend-
pon which Mr. Uearilmore, tbe delen-
1 attorney, complained lo tlieCourt of ihe
KMuea for Ibe Hpecial Jary not being la-
in proper time, and lliat lo fail certain
ledge, no aummnnkea were delivered tbe
efore at twelre o'clock. The Court al-
tbe complain! to be jiial, but took no
IT notice of it. Fire Talesmen were (ban
9. Orig.Edit.
iM il, p. Wi, of thia rolmne.

tbonghla, U|NM) all reanoer of aub-
theae lopica were pretty largel v, but i^
lue same time pretty gaorrmlly baodlri). Now,
it doen not appear to me they were or could, ia
the nature of it, be applied lo ibe present caae.
For I neither do, aor erer will, attempt lo lay
before a jury, a cause, in which I was iindor
tbe neceaaily of stating a single principle that
went to intrench, in the amslleat degree, upon
the arowed and acknowledged liberty of tbe
Mltjecta of tbia country, eren with regard to
the prua. Tlie complamt 1 bare lo lay befors
yon, ii, Ibat that liberty has been ao abused,
M tamed to licentiousuea*, in the manner w
which it baa been exercised upon the present
occasioB, that under the notion of arrotfating
liberty to one nan, that is, tbe writer, printer,
and publisher of this paper, they do, in effect
and conaeqiWDCc, annihilate and destroy tbe
liberty of all men, more or leaa. Undoubtedly
tbe man ibat baa indulged Ibe liberty of rob-
bing upon the highway, baa a i^y cousidar-
ahle portion of it allotted to him. But where
ia tbe liberly of tbe man that is robbed? Where
ia the liberty of tlie man that ia injured 7 li-
berty coBsiata in a fair and equal, public and
general enjoymeDl of erery man's person, for-
tune, and reputation, under tbe pruleclioa of
the law ; and ibe moment th« law is Rileut or

*S71]

10 GEORGE HI.

Trial of John Miller,

[871

him, ami tyranu^ of the vilest sort is expected,
aixl an opportunity is given to hired and venal
writers, to vent their malice for money, agpainst
the hest characters in the country, and against
every ciiaracter wiiich they can be hired to
insult for money. All I desire is, that the line
may be fuirly drawn, and justice so admiois*
tered, as to protect the i^eneral liberty of man-
kin(^ ; and not under the notion of protecting
the liberty of those that do wrong, encourage
them in licentiousness and destruction uf all
laws human and divine, of all countries as well
as this, which all people will agree, uoon the
principle of common sense, ought to be pro-
tected and defended. Gentlemen ; these are
the only principles upon which this prosecution
depends ; and if the prosecution is not to be
supported upon these principles, I desire it
may be rejected and abandoned, and I ought
to be ashamed to maintain it at all. With re-
gard to the present libel, the business of those
that maintain this prosecution, is to prove
these facts. The man that is charged with
having printed and published this paper, has
printed and has published a paper, in which
concerning the kmg, concerning the House
of Commons, concerning the great officers of
state, concerning the public uflairs of the
realm, there are uttered things of such ten-
dency and application, as ought to be punished.
Now, gentlemen, when I state the proposition
so, it will be very manifestly and obviously
understood I am ^iroceeding, not only to prove
the fact of the present defendant having printed
and published that paper, but to go so far into
the particular parts of that paper, as to prove
it does apply as the charges of the information
express. To prove that it does apply, or to
consider it as a subject liable to discussion and
doubf, is, when I come to consider it, but an
insult upon your understandin<^ ; for you have
uo one reproachful epithet, which is not, in the
Tarious shapes which a long jingle of words
could be turned into, put upon the person of
the king. He has been reviled throughout the
liistory of his life, from his birth to the present
moment. His education has been represented,
as converted to the most frivolous, to the most
inaiignant purpose ; his heart is represented, to
be corrupt to such a degree, to be abandoned
80, that all the sacred duties of the great trust
reposed in him, have been violated : thus the
possible business of private contention, with a
character, for the purpose of making a king
more contemptible, he is represented as the
most contemptible character upon earth. You
have been told, in consequence of that, he has
set upon edge against him the minds of all his
subjects ; and \n conclusion after that, the
king is threatened with another revolution, in
the stile of manifest rebellion, like new pro-
claiming war. When we are come to that
situation, when it shall be lawful for any man
in this country to speak of the sovereign in
terms attempting to fix upon him such con-
tem|>t, abhorreoce, and hatred, there is an end
•fall goTerDineiit wbatsoerer, and tbeo liberty

is indeed to shiA for itself. Now, gentlemen,
I b%ve stated to you in general, wbat 1 look
upon to be the import of this libel. If I was
to mention even the passages, is there one of
them would fall short of the representation I
have given them ? In the 6rst place, th^ king
is supposed utterly ignorant of the duty of his
office ; in the next place, be is looked upon to
have a fixed prejudice against the character of
an honest man. ** Supposing htm (says the
libel) made sensible at last of ibe great duty be
owes to his people."

Is it fit that any magistrate should be talkd
of in that manner, much less is it fit, that the
king should ** that he should be made sensible
of his own disgraceful situation" — is that the
language for the first magistrate in this couo-
try ? No matter bow improbable thus the best
of characters of honest meaning men, is r^
moved by such writers ; but to be sure, that ii
a very unfair and unjust idea to give the pe^
son of a king, and yet thry would have joo
suppose, that is no libel at all. <' It is the
misfortune of your life, and oritcinally the
cause of every reproach and distress which
has atteibded your governmeui, that )ou shouU
never have been acquainted with the language
of truth, till you found it in the complaints of
your subjects." Can a man l>e branded with
a more odious and disgraceful repretteutatiOD of
him, than that he had been so educated froa
the beginning to the end of his life, as to be
utterly ignorant of the language of truth. The
stile, the insolent manner of it, is what will
occur to any bo<ty. He desires him to dit>
tinguish between the permanent dignity of
a king, and that which serves only to promote
the temporary interest and miserable ambitioB
of a minister. ** You ascended the throne with
a declared, and, 1 doubt not, a siin ere reiioltt-
tion of giving universal salisfai-iion to yoor
subjects. You found them pleased with the
novelty of a young prince, whose couulniance
promised even more than his wonls, and lo^al
to you, not only from principle, hut passioo.
It was not a cold profession of aikirianoeto the
first magistrate, but a partial, animated auach-
ment to a favourite prince, the native of their
country. They did not wait to examine yoor
conduct, nor to be determined by experience,
but gave you a generous credit for the future
blessings of your reign, and paid you in ad-
vance the dearest tribute of their affections.
Such, Sir, Avas once the disposition of a people,
who now surround your throne with reprMchei
and complaints. Do justice to yourself, baoish
from your mind those unworthy opinions, with
which some interested persons have laboured
to possess you. Distrust the men who tell yvo
the English are naturally light and incoostani,
that they complain without a cause. VVitbdraw
your confidence equally from all parties, frof)
ministers, favourites, and relations, and let thetv
be one moment in your life in w hich yon hire
consulted your own understanding.*'

Gentlemen ; is it fit that the first msgiitnM
of this country should be repmeoted to hii

873]

Jbr a Libelp

A. D. 1770.

[874

people jn the way in which 1 ha? e now stated
to you, as never having once consulted his own
aoderstanding ? 1 do not even dwell upon the
epitliets, whitli are the natural consequences of
treating the |)er8on of the king in that manner.
The next charge upon him, is, that he takes
a share in the narrow views, and fatal nnaliguity
of some individuals, and to sacrifice, conse-
quently, private objects under the government,
for the private purposes of gratifying pique and
resentment; then it mentions [that by the
peace] England was sold to France, and his
majesty was deserted and l>etrayed in it. But
the next article, the king is charged with, is
wbat I mentioned to you before, which is, be
has put himself into the condition of an ene-
my, a private enemy to an individual man.
For GoiVh sake, why ? What man could, with-
out offending the laws, put himself in a situa-
tion, either to deserve, or actually to meet the
Krivate enmity of the king ; and, as I told you
efore, in order to lessen the king the more in
your esteem, this eentleman is represented to
you, who, in the ^rmer part of his life had
acted upon a settled opinion, that there were
few excesses to which the character of an Eng-
lisb gentletnan might not be reconciled, and
that he could take the same latitude in the
choice of |iolitical principles as he had in the
sooduct of his private life. With regard to
the former, it seems to be somewhat singular.
I have always understood that principles,
either moral or political, were fixed upon the
consciences of men, and an honest man was
not at liberty to choose different principles.
But this is an said with a view of lessening the
:haracter of that gentleman, to make the con-
elusion afterwards, that it is an unworthy con-
Itfotion, (and it is represented as unworthy)
ind giving an air of ridicule to the difficulties,
in which the kin^ has been betrayed ; and
making it a priticiple of government; that
lie had not only stretched every nerve of
^vernment, hut violated the constitution by an
ill-advised personal resentment. Is this Ian-
^lage to tell a king? If you were to tell a
common justice of peaoe, that in the adminis-
Lration of ihe duty of his office, he had sacrificed
bis duty to his resentment, 1 apprehend my
lord will agree with roe, and 1 lay it down as a
proposition of law, you would be liable to be
prosecuted ; and if such a thing was pnblished.
It would be a libel if wrote upon him. And
tiere we are come seriously to debate, whether
telling the king he has not only sacrificed the
duties of his office, but lietrayed the trust re-
posed in him, and his articles were not per-
formed—and all that to gratify ill- humour
iod resentment— if that is not a libel, I own
my imagination cannot reach to what is a libel,
ind 1 do not understand the subject the least in
the world, if it is not to be so understood.
^Iter that, he is pleased to go to the House of
CkMnmons : with regard to them, he says he
cao readily believe there is influence enougti
t0 recall what they look upon as a pernicious
role. The House of CommoDs consider their

duty to the crown as paramount to all other
obligations whatsoever. To us, says the ano-
nymous writer, to us they are indebted for an
accidental existence. I wonder of what mem-
ber h^ happens to be the elector ! it wouU be
more honest if he was to shew himself, that we
might know who he is. To us they are in-
debted for an accidental existence, and they
have justly transferred their gratilode from
parents to benefactors, meaning from the elec-
tors to the ministers; from those who gave
them birth, to the minister, is the very expres-
sion. Now, whatever may be the flippancy of
some men's manner of telling things, all orders
of government, where the form of government
sufasists, as well as in this country ; no man of
sense can admit that it ought to exist, and at
the same time it onght to be subjected to re-
proaches, at the pl^ure of every man that
thinks proper to put reproach upon tbein, by
publishing a libel. 1 only wish to have those
two proiiositions examined. That two great
bodies, whose whole benefit and existence, nay
their authority, is to govern the whole nation ;
and are they to be in the power of every man
whatsoever to revile them with what personal
insolence of language he pleases ? Does thia
come at all to the idea, that an honest man
would allow his own opinion, under the pre-
tence of discussing public subjects ? Will any
man of honour say you may revile, with im-'
putations of reviling, the persons of men, with-
out going any further ? Is that a colour to cover
this libel? After having treated the House of
Commons thus, he returns again to the king,
and is pleased to threaten the king with an unt#
versal revolt of all bis injured subjects. lie
begins with tlie kingdom of Ireland, which be
is pleased to call a plundered and oppressed
kingdom, with no more rmrd to truth than
understanding and knowledge enough of the
subject to keep up the probability ; for of ail
quarters of the world, he should not have looked
there for that sort of imputation, as he is pleased
to put it. And here he is introducing another
character upon the stage, merely for the sake
of traducing the king afterwards ; that is lord
Townshend. ** The people of Ireland every
day give you fresh marks of their resentment,
(speaking of the king) They despise the mi-
serable governor you have sent them, because
he is the creature of lord Bute ; nor is it from
any natural confusion in their ideas ;" no, they
are right enough in that, he supposes ** that they
are so ready to confound the original of a king,
with the disgraceful repreaentation of him.*'
This is the manner of talking to the king. I
have had the honour to converse and live with
lord Townshend, as long as anybody. ^Ul I
have to say of him, is, be is very far from de-
serving such a character. But I hope that
will not be taken as a very gross observation,
that a man who has lived with him, dare to say
so. But I desire but one word concerning the
immorality of that sort of conduct, that under
the cover of anonymous publication, men are to
bespatter io thii kiud of way, and in thai

875]

10 GEORGE III.

Trial of John Miller,

[876

way reflect upon the condition of officers in
this situation. If he should apply to a court of
law, and submit it to a jury, if they were not
deaf to his complaints he would Im* relicTed,
unless they were not disposed to protest his
character, and, upon the contrary, were to
take the part of a man, who under cover of
an anonymous publication, attacks his cha-
racter in this manner, with this method of tack-
Ing to it at the end, that he was a proper re-
presentative of the king-.

The next article is : "He has taken a deci-
sive personal part against the subjects of Ame-
rica, and those subjects know how to distinguish
the sovereign and a venal parliament upon one
side, from the real sentiments of the English
nation upon the other." For God's sake, is that
no libel? To talk of the king, as takinjg^ a
part of an hostile sort against one branch ofhis
subjects, and at the same time to connect him
in the article of acting in this manner with that
parliament, which he calls a venal parliament ;
18 that no libel ? I beg leave to ofa«erve, con-
cerning what parts apply to him, that Eng-
land he has represented as being engaged in a
Quarrel against -the king ; and consequenlly,
that he stands against them with a few un-
happy people, who are not at liberty to choose
their principles ; but fancy themselves bound
to unhappy principles ; those few men, he de-
sired to be understood, were the whole support,
and the whole attachment to the king. Then
he goes to the partiality of his understanding
to the soldiers. Now it is worth your atten-
tion, gentlemen, to see bow very malignant the
^object of that man must be who wishes to set
this party against the other ; and tells the king
he might learn to dread the undisguised resent-
ment of people that are ready to meet their so-
vereign in the field. Tlicn you see how ma-
lignant that must be, and how it applies, when
you read that part with respect to the guards,
where he says, ** when the distant legiotis took
the alarm, they marched to Rome and gave
away the empire.*' This is the representa-
tion of the occasion, upon which the guards
bad preferments lavished upon them, and the
cruelty with which the marching regiments
had been treated, in order to raise a quarrel, in
short, between them. Now, gentlemen, there
are an hundred different passages, in which
the king is told he has no good quality, but
every bad one upon earth. He is bid to dis-
card bis little persona] resentments, which have
so long directed his public conduct. Is it not
shameful to talk in that manner? and in a
thousand instances, too long and too disagree-
able to repeat, the king has been treated thus,
from the beginning to the end; and in con-
clusion, he 18 told what he is to expect next,
unless he conforms to this anonymous writer ;
that /s, another revolution ; and that the
prince who imitates the conduct of the Stuarts,
.ihould be warned by their example, and while
be plumes himself upon the security ofhis title
to tne crown, should remember, that as it was
M^oured by one revolution, it may be lost by

another. If yon have any difficulty of ima-
gining what that crown is, what his title is,
who IS in possession of that title, acquired by
one revolution, and what it is that is meant
by another; they are difficulties that have
not yet occurred in any one ooffee-bouse in
this great metropolis, nor one place in the coun-
try, frofb one end to the other, wherever this
libel has been published ; such is the nature of
the libel, with respect to that. Af\er having
stated to you, what I look upon to be the ap-
plication of the paper, to the several articles
mentioned more particularly thab all to the
king ; and having laid before you what will ke
the general form of the evidence, in order to
prove the present defendant guilty of printiDjf
and publishing this paper, it will be for yon to
determine, if I may use a word that looks so
Hke doubting the determining upon such t
question as this. If you have, any of you,
any seriaus thoughts, whether the author of
this paper did mean the king ; and whether he
did mean the great officers, the lord lientenint
of Ireland, or any other ; and i^hetlier be did
mean concerning the ofl^cers of this countiTi
and endeavouring to set one party of the
country against another; if you have IST
doubts upon that among yourselves, that wis
admit you to acquit him. If you have so
doubts, and do return a verdict of acqoitul
without such doubts, or that you return a ver*
diet which tlie Court must understand in a dif-
ferent way, which the Court must construe dif-
ferent from what you intend, then you 6od i
false verdict. For it lies upon you, to fiod t
conclusion from the evidence ; or to say, whtt-
ever we think' of the evidence, and howetcr
we are convinced of the conclusion, we are d^
termined to reject that evidence, and to day
that conclusion, and to betray the sense of our
own minds, rather tlian to execute the lawi.
But, gentlemen, upon the contrary, yoa
will proceed in the administration of justice
and tne law, without adopting tlie part of the
author, wlio lias set himself up for the accuser
of liis king, and as yet has not had the face to
shew himself, though he has been the rsD-
corous enemy of so many people.

Daniel Crowder sworn.
Examined by Mr. ATorton.

Crowder, what is your business? — I am u
assistant to the messenger of the press, Sir.

Very well. Do you know tlie defrodtit
John Miller ? — I believe I know him, I beliefC
be is in that quarter.

Now, Sir, give my lord and the jury an ac-
count, whether at any time, and when, yoa
bought the paper, wliicli I belifve you bav<
in your hand.— [No answer. The paper pw-
duced.]

What is Miller? What business does be fol-
low ?~He is the publisher of the LoodiB
Evening Post.

Now give an account where you bought thit
paper.— I bought it at Mr. Miller's; it «ii
served to me by his publisher.

JoraUM.
t is bis name?— His name is PbippSy I

« did he senre yoa with it?— -^Id
i-Head Passage.

It the place where bis basiness of print-
mnried on? — I nerer saw them print

It the place where they are soM? — It 19
?e where they are pubfisbed.

you frequently boaght that paper at
'P? — I have,
t name do yon call his shop where yoa

it ?— The publishing room ; 1 do not

bother that is proper, but that is what

Hit.

ly time have you been there, and hafe

n the defendant ?— [No answer.]

m did you buy it of? — I bought it of a

0 is servant to Mr. Miller, they call him
and I think Phipps, I won't be certain
liat; he was always called Frank by
>dy.

( you at other times been at that place
he publishing room, for the paper that
te name of the London Evening Post,
e you bought them there ? — Yes, Sir,
me they were published ; either I, or
onging to me ; 1 can't say always that
leen there myself.

} you frequently ? — I have frequently.
'. you waited at any time till the papers
en ready to be delivered? — Very rarely,
seen people wait and go up stairs, but

1 generally the readiest of any body,
are the most diligent of any others?—

re in general the most forward.
iryman. You bought that paper?—
r. Yes, gentlemen, I bought that paper.
Morton, How long have you known
Phipps, the lad you bought it of ?—
r. I have known him ever since he be-
tublish that paper,
long is that ? — About three quarters of

London Evening Post read in court, N*.
, that part of it signed Junius.

Robert Harris sworn.

Examined by Mr. Wallace.

hat business are you ? What office do

ong to ? — The Stamp-office.

t office do you hold there? — ^The re-

f pamphlets aud news-papers.

, Sir, are news-papers brought to your

) be stampt? — Yes, Sir.

ou receive the duty for advertisements

^papers? — Yes, Sir, I do.

, Sir, do you know who the printer is

London Evening Post ? — 1 have it here.

Dg at a large parcel of news-papers

ogether in a l>ook.]

^ou know the defendant Miller ? — ^Yes,

papers brought to your office for print-
I London Evening Post on ? — They are
ought to be stampt, and sent out blank,

A. D. 177a

[878

and when printed, broaght into the office to be
charged for the dntyy one of each paper every
day.

Whose serrants bring them to be stampt ?—
Mr. Miller's. After they are stampt, the mo-
ney is sent, H may be by himself, or his ser-
vants ; the money for 15,000 may be brouffht
together, then they are returned to the office
after they are printed, for the number of ad-
vertisements to be found ont and charged with
the duty.

Who pays for the advertisements? — Mr.
Miller. It does happen sometimes that the
number of papers may not be sold, then the
money is returned.

You say, the duty is returned ?— For the
unsold, the duty is returned.

How do you verify that ?— They are return-
ed, and they make an affidavit that they
made no profit of the papers, and then the
stamps are returned again, and the duty is re-
turned.

Who makes that affidavit ?— Mr. Miller.

How is the account of the advertisements
settled ? — We settle it efery month.

Who comes to settle with you ?— We charge
them.

Whom do you charge the London Evening
Post to ?— To Mr. M ilTer.

Who comes to pay you at the end of the
month ? — It may be two months, or it may be
three months before they are paid.

Who comes? — May be Mr. Miller, may be
his porter.

Does be come himself frequently? — ^Yes,
sometimes.

Does he settle and pay for the advertise-
ments ? — Yes.

Have you the paper of Saturday December
16, to Tuesday December 19, 1769 ?

STbe witness looks at bis volume of papers
turns to that paper.]

This is the paper sent from Mr. Miller to
your office ? — Yes, Sir, they are brought into
our office.

Mr. Wallace. The paper is of the same date,
and number 26,672.

Mr. Tkurlow to the defendant's counsel.
Do you ask this witness any questions ?

Defendant^ i Counsel. No.

Sot. Gen. Then we have done.

Serj. Glynn. Please ypur lordship, and yon
gentlemen of the jury, to favour me in this
cause, in behalf of Mr. Miller, the defendant.
Gentlemen, the learned gentleman who opened
the cause in support of the information, has
told you, that of this publication, no lawyer,
not a man of the profession in the kingdom, he
thinks will seriously avow, — the learned gen-
tleman who appears in supnort of the informa-
tion, has said, no man wiA seriously avow a
defence and justification of the publication now
under your consideration. Gentlemen, I have
had the misfortune to be very much misunder-
stood, if I gave any inference of m^selC^^&t «n<|

879]

10 GEORGE III.

Tritd of John Milter,

[880

•dmiMion of the least degree of gotlt or tsrimi-
nalitv in a similar publication to this. I en-
tered into a defence as seriously, and as ar-
dently wished, that such weak arguments as
mv understanding might furnish me with,
might be pretalent in that case, with that
anxietv that always will attend questions of the
most important nature, and expecting an in«
atant decision. I appear uow, as then, avow-
edly defending the publication of the paper. I
approach with the same anxiety, and have
■ome relief to that anxiety, finding the deter-
mination of this important question in the hands
of a jury of the principal citizens of London.
Gentlemen, I made no objection to that neglect
and remissness, in convening a full Jury here,
persuaded as I am, that collect the jury where
they will, among the inhabitants of this me-
tropolis, it is impossible to find men with hearts
•0 foreign to the ideas they owe to liberty and
public justice as to allow tue con? iction of the
present defendant. Gentlemen, my learned
friend has said, that upon the last trial, no par-
ticular passages were pointed out to which we
thought proper to apply a particular vindica-
tion. The cuarge was general ; the answer, I
allow, was as general ; and I think it seems as
proper and becoming to leave the construction
of a paper to a jury of citizens, who are the
most competent judges of what sense and con-
struction belongs to a paper, unassisted by
counsel. And if I did not enter into a defence
of particular passages, it was because a general
charge was exhibited, and no particular pas-
sages pointed out, as bearing an unjjstifiable
construction. My learned friend says, he
knows no party so dangerou.4, as mercenary
writers employing their pens in the aspersion
of private characters, or the misrepresentation
of public measures. I do most heartily agree
witli the gentleman, in a detestation of those
men who can be procured by any emoluments
coming from any quarter, to prostitute their
pen to the calumniation, slander, and depre-
ciating of the best characters in the king-
dom. 1 do most heartily agree with him in
despising and contemning the authors ; but I I
do look further, and 1 bestow the higher mea-
sure of indignation and condemnation on that
fountain from whence flows the encouragement
to such pernicious prostitution. None of that
sort has, however, been thought proper to be
brought before you, with regard to the great
and respectable characters that have been at-
tacked, us they say they have acted with im-
propriety in leaving the publisher to the pu-
nishment that a Just and indignant public jury
will always inflict upon indignant writers ;
and if that is to be pursued, it should be of
those writers there should be a reparation
sought tor, to the constitution ; and those cha-
racters that you see every day in daily publica-
tions, publicly libelled and traduced, there
might be reparation sought for to those great
characters, though they cannot be protected
from the scurrihty of malignant pens. But
gentlemen, none of them are brought before

you ; it is a case of a difl*erent sort ; and 1 am
at a loss to guess how the word ' mercenary'
can bear any application to the present charge.
1 have always in my own thoughts distia^
guisbed between those that prostitute their oirn
pens, and become the stipendiary instruments
of parties and ministers, and those pens which
are called forth in the defence ot particalar
opinions, and only ofl*er the disctissions of those
opinions to the public. 1 have always lliougbt
it of the utm(»bi importance, that the latter
ahould be j)rotected and encouraged. J f in the
paper here before you, you see uo more than 1
profess I see, a writer calietl forth by ardeat
zeal, for the safety of that sovereigu which he
tliinks in danger, and for the safety of that
country whose rights are involved in the same
danger, called out to deliver his opinion of that
in this publication ; I am so far from thinking
that paper obnoxious to any degree of censure
and condemnation, that I think the author must
hare been said to have acted a justifiable part,
to have obeyed the call on a good citizen, ia
convieying the alarm, and giving notice whert
he thought it necessary. My learned friend
has the same idea of the matter now to be de-
termined, upon the grounds on which you are
to form your decision, that I entertain ; it lies
entirely in your own breasts to determine it ;
and I would not insinuate any thing that I
think they ought to adhere to, as I know yoo
to be a jury so well acquainted with your duty,
that no instructions are necessary. For we til
know, that in all times, the honest, intrepid,
upright conduct of a jury must l»e the refugt
of the people of this kingdom. That has btta
their security, when all other securities have
been taken away, and their liberties likewiif.
They must and will, in the natural course and
evolution of things, flee again to the same asj-
lum ; and upon that account, gentlemen lint
are called to exercise that important duly, flo
not want to be informed of that line of juris-
diction that falls to them ; that jurisdiction tbit
they are to keep inviolable, and that jurisdic-
tion upon which depends the security of every
subject of this kingdom: and that jurisilictioff,
if once broke in upon, makes juries usetris;
and the practice and insult upon that substas-
tial benefit, the constitution hoasis of in it.ao^
the public have constantly reaped fmm il«
that line of distinction the jury have to detpr*
mine of the full matters b^ore thrm, and 1
believe I shall be in no decree contradicted,
when I shortly state the question you are 1^
determine. Gentlemen, Mr. Miller is a citiuo
of London, and is charged with having sedi-
tiously published a paper reflecting ujiod lb*
person of the king ; vilifying his subjects, an'
wrote vith a view of exciting a sedition ; vili-
fying the person of the king ; wrote with i
view of exciting sedition, with intent to anes-
ate the afl!*ections of the subjects from bisRis*
jesty. That is the general description of ikt
charge against him before you. It is MikfH
in the information, that it is a seifrtKNii I3i<^
reflecting upon the king» his •dministratioB ^

881]

Jbr a Libel.

i

gOTerament, and bis principal officers of statci
aad the boD. House of CominoDt ; and in the
words and daabes cooiaiued in the specifica-
tion of tbe letter itself; and if tbose words
were admitted, it is incumbent upon yon, and
you must give satisfaction, and conrict tbe
aeftodant; and if tbat is not wanting, you
are called upon by your duty, to convict tbe
defendant. Gentlemen, I would not be under-
stood here to be making a cavil of defence,
as if 1 insisted literally upon a proof of every
part of it. This I insist upon, that in all eases
whatsoever, tbe principle of the crime is the
malignant mind, the bad design and intention
in tbe writer ; and you must be satisfied of the
proof and the nature of the subject before you,
that there was that malignant disposition in the
writer. You must be convinced here, that
there was sedition in the intention ; and if that
proof is wanting, that charge is not made out ;
It IB like all the other cases of criminal prose*
cations, whether for felony, perjury, or trea-
son ; you must find the intention ; it must be
proved wilful and corrupt, in case of perjury ;
and if they were to say they found the word
filse, without wilful anil corrupt, they have in
cftct, acquitted the tlefeudant. They would
do better, if in eipHctt w«)rils, they would

rk in the language of the law, in snyiug,
defendant is not guilty. There is danger
ia not being explicit, where the facts justify an
explicit explanation ; and I do submit, gentle -
Ben, that m tlie present case, you must be con-
vinced there is a seditious meaning and inten-
te running though the whole of this publica-
tien, though I don*t see it is necessary to give
proof of the whole, but you must be convinceil
«f the seditious intention, so as to affect the
defendant with a proof of the seditious inten-
tioQ at the time he published it. Gentlemen,
■y learne«l friend, knowing that to be the case,
koowing the necessity of such proofs to sup-
port tbe present charge, he has entere<l into an
examination of the paper, ami he has laboured
teooovince you, that this is a direct personal
fiiiel and invective at^ainst the king. Gentle-
tteo, if a subject of this kingdom so far forgets
kisdaty, as to traduce and calumniate the per-
son of the king, in that cabc it would cut off a
^oua defence; but it is necessary to the |)re-
*%t prosecution, you should understand it so ;
^e learned gentleman has, for that reason, so
Itbonred it, and you will judge of the success
^his labours. You will judge how well war-
Elated by the paper before you, are the con-
fections the learned gentleman has put upon
It In the Arst place, says the learned geu^
^loQau, every bad quality is im{)uted to the
^iog; every good quality denied him. Gen-
^l«inen, I submit to your own consideration,
^^Km reading the paper, whether the obvious
^ieaoing of the author is not quite contrary to
^ meaning put upon it by my le&rni-d friend ;
^ whether he has not repeatedly borne testi-
*^v of the royal virtues of tlie king. Is that
^IphcatioD jutt ? Is it just to sav, this is a paper
^Munioi^ the imputation of all bad qualifica-

A. D. 177a [881

tiona to the king himself, and denying thos6
virtues which afl the world knowbim to b«'
possessed of? Through the whole of the paperi
there is not an imputation of any bad quality
in the king. On the contrary, those bad qua*
lities are imputed to others. The learned gen*
tieman, in his further prosecution of that dc"
sign, to make you assent to his propositions, if
subtilty can draw it from the line ot truth, and
give it that aspersion he aaya it contained ; ha
has told yon his education is libelled; his
condition, bis situation, and the whole ia a libel
upon him in the supposed difficulties in the
access of an honest man tn his closet, to tell
him he ia surrounded by flatterers, and that
truth don't find easy access ; and that is an
aspersion upon the king. It baa been the case
of the best of kings ; and no good qoi^itiea
in the mind of a sovereign can guard against
it. The most active and vigihint kings, nave^
in some part of their lives, suffered in the ad-
ministration of government, from the diffi-*
culty there is to convey the truth to their ear.
It is not the person of the king, it is the mis-
fortune of a throne that it cannot be accessible
to people of all denominations. If their servanta
are corrupt, they are surrounded, and a barrier
is formed against the approach of all others,
that would convey any useful caution to the ear
of the king. If he is in the hands of bad ser*
vents, the most wholesome steps are to be taken
to deliver himself from those servants. Haa
that construction coutended for by my learned
friend, and iogenionsly stated to you, has
it been well warranted by the paper before
you ? Let us consider the other ground upon
which it has been contended. It has been said^
the lord lieutenant of Ireland has been treated
wrongfully, and he don't deserve that title ;
and my learned friend said, he himself would
defend him, as he has known his conduct, and
been acquainted with him. The lord lieutenant —
with regard to what it said of him, and to make
it apply, it has been said it infers an insult upon
thekuig, because he is told, after the disgraceful
picture has been drawn of the viceroy and de-
puty, that he is a fit orworthv representative of
the person that sent him. Itead that passage,
gentlemen ; I desire that passage may be fair-
ly read. The import is, as 1 am warranted br
the words — and 1 expect to find no credit witn
this, or any jury, if 1 wilfully misrepresent any
thing— the import, as I take it, is, that a dis-
graceful viceroy has been sent to a neighbour-
ing kingdom ; and the ini{>ort of the |>aper is,
it was that viceroy that has drawn discredit upon
the person that sent him. Whoscnt him ? that
person is not named that sent him, nor is ther^^
a word said, nay, it is so far fn^m lieing said, that
representative is a worthy, becoming, or similar
representative of his sovereign, the contrary
is, in direct words, said — his sovereign is dis*
(graced by him. This is the thir<l (ground by
which it is represented, there must be a per-
sonal application of this to the king. Then
my learued friend says, the next charge upon
him is, tbat be takes a share in the iiarre\f
SL

B8S] 10 GEORGE m.

▼iewt and fatal malignity of some indif idnali,
to sacrifice a pri?ate object ; and that he had
stretched every nerve of government, and tio-
lated the constitution, by an ill-advised per-
sonal resentment. Is it criminal to say, evsrv
ministerial power has been employed to crusn
that man ? if it is criminal, Mr. Miller makes
one amongst millions of guilty gentlemen.
Does that, however, in the least degree, apply
to the person of the king? Are you not
then, by reading the paper itself, convinced,
that this has no application, in any de^j^ree,
of. that kind, to the person of the king?
It contains no insinuation to his disgrace, no
reflection, no personal resentment upon him ;
and, is it criminal in a man to say, if be thinks
so, that^ discontents prevail in this kingdom?
is it criminal to state the grounds of it? is it
criminal, if he thinks it, to say there are dis-
contents between one party and another ? is
it criminal for a man who thinks there are
evil counsellors about tiie king, to express his
wishes, that they may be removed ? In direct
terms, these are the vpords, that thev may be
removed, and the parliament dissolved, and
every cause of complaint reniovod from his
government. And those who wish for the
prosperity of the king, and content and hap-
piness, may form ' such a wish ; and, if justi-
fiable in making it, certainly are justifiable in
expressing it; and it can be no imputa-
tion upon the person of the king through-
out. But the measures of government have
been freelv censured, from one end of this
paper to the other, as the cause of the discon-
tents, and that has been lamented ; and an in-
Tidious interpretation has been given it, as
if it was a menace to the sovereign. Gentle-
men, y^ou all know, that whoever gives a picture
of a distracted and discontented people, if he
means to convey honest advice, would name
those consennences, which, in the course of
things, arc lifcely to follow ; the more he dreads
and apprehends, and wishes to avert them,
the more freely will he name them, heeause
that is the means often to prevent them ; and
the author mny say, I fear, in course of time;
they may happen, and he may point out the
means hy which they may he averted. The
fears, and not the menace ()f the writer is con-
veyed to the crown. Then, gentlemen, I sub-
mit to yon, upon a full consideration of the
paper before you, there are no refieclions upon
the person of the kin;; ; hut the measures of
government are canvassed with that freedom, I
J)0|ie I shall always see them treated with in
tliis k'u)(;dom. I hope I shall never see them
meet wiih any (liscournsfement from juries, to
say the p('r>oii of the king is surrounded with
evil couLsellors; upon an examination of it, if
that should be the case, and ihey should meet
with discouratjement, it is shutting their
mouths to any enquiry at all, and they must
rest contented at every act that is done by the
kinvr's servants, though that is virtually a dis-
tinction in law from the king. We do not

•outider that it ii tbe luog iamt$ w»r or peacci

Trial of John MtBeTf

(88«

and, it is not only justifiable to say, that war ia
not begun properly, but peace is not made pro-
perly : for, it has been frequently the case of
this kingdom, to exercise the royal prerogative
of the seal to a peace, which has been de-
clared to be ignommioDS and diihoDOuraUe it
the same time. At the same time we gmrd
the person of the king ; it is not his peace, but
the ministers, and they should be puoiahed kt
it. The ministers have then made use of this
argument, it is the king's ; unfaithful to tkeir
sovereign, if they have drawn reproach opoa
themselves, the^r will shelter tbemselTei be-
hind the curtain, and will produce hn.
Whenever measures are freely wrote of, who-
ever should introduce the name of the lung ai
the author of it, he is the person who acts oa-
worthy of that duty he owes to the king, sad
he has libelled the king, and brought his per-
son into danger: those that take from tbeoffi*
cers of the crown, and throw that upon tbs
king which belongs to them, treat the person of
the king ill, and make a libel upon him : kt
the jury wiU pot a right construction upon tbii
paper. The jury wm consider the necessity of
a free examination of measures, and they wl
not suffer an expedient to take place, wUdl
woald be at once unfaithful to the crown, ud
dangerous to the subject, to shut our moolli
to all sorts of discontent, and to reduce thisai*
tion, Uke all others, where oppressions caaail
be expressed, where discontents are not knowB,
till they breaik out in events too danp^rous, ni
too melancholy to be jnentioned. And, ai
their discontents are known, they may be la-
moTed ; if well or ill-founded, they may kl
answered by argument ; if they are ill-OMf
sures, it is the happiness of this kingdom, tbil
we owe to the freedom and liberty, which ill
security to the throne and people.

Gentlemen, I have troubled you thus largelf
in tliis cause, in answer to my learned friend i
arguments, and I hojie my endeavours will
nut be needless ; for, you are the constitfl*
tional judges of the question. You have tbi
paper before you. It you see upon examina-
tion of this paper, that there are none of thoie
seditious desii^ns, nothing of that tendeocj,
nothing that conveys a proof of such a male-
voleut disposition, either in the writer or tbi
defendant, which is charged in the informatios,
I am persuaded you will do your duty, an4
will, hv an explicit verdict, not to be misunder-
stood, declare the defendant not guilty. I trust
you will, gentlemen, and, for that reason, I
don't trouble yon with comments upon the
evidence produced before you. It Is left ti
you, whether you will say, a citizen of Londoa
shall, for any paper published in such a way,
be so far affected with the contents and know-
ledge of it, that he should be said to hsTt
formed horrible and seditious machinitioos
agaicst the king and the subjects of this comr
try. Gentlemen, I shall not trouble you with
an^ more questions of this sort, beeaoie I cia*
ceive the defendant to be si^ in vonr handii I
hftve taken the liberty toiubamthat n 71%

885]

Jhrti Libd.

-A. D. 1*770^

t88«

and yoa will terioiitlj consider upon what yon
ttre to decide. You will consider whether he is
milty iu the manner, form, and char;^ in this in*
formation, and whether he is stulty in every part,
which moftlie added to make up the whole oF
this charge. And, if you say he is guilty, you
in your own consciences, pronounce him guilty
of erery particular, specified offence, if you,
Qpon the other hand, should not suffer the de-
fendant to he non*8uited upon the paper before
you, and that you will eive an example which
mie dsLj or another will do honour to the names
of the itirv, and the nation wiH derire that be-
nefit which it has always derired from a jury,
md I hope it ef er will • I jim persuaded you
will not disapprove of that freedom which is
■nde use of in that paper, when you see there
is no intention of dom^ ill in it, which must be
left to the wisdom and mtegrity of those gentfe-
Baeo, who are now the great judges of that, and I
^rost I ha? e nothing to hnr in Uie behalf of my
^iiait.

Mr. Bavenpart, Please yonr lordship, and
joa gentlemen of the jur/^ I anH of counsel
wewMe for the defendant ; and, af)er so very
able a speech, by my learned leader, I should
kwe sat down rery contented indeed, if I had
IIkni^ what the learned gentleman bad said
VpOB the other side, deserved to pass without
ftotiee. But it has alarmed me ;' and I will
gift y4>a the reason, why I think it ought not
ia pass in silence. The gentleman, wnen he
§rat opened it, took it for granted it was a libel,
which he presumed, without asserting the guilt
It wan a charge he would have thrown upon
others, but it was a measure he himself adopted ;
•ndl, 1 did expect from bis ability, and from the
situation he fills, that you would hare had a
eiear line of precision drawn, without a possi-
hiltty of error, where the libel began, and
where it stopped. He has not ventured into a
particular explanation of the whole of what he
oalls the libel : he has commented, indeed, and
ia a way, of which I shall take notice bye-
aiid-b5re to you, upon broken, disjointed mem-
hen of sentences, without reading the fair and
Open sentence to you. Is there any book, either
in aacred or profane history, that would ad-
■lit of such a tearing and dismembering as that
htm been, withoutleaving the book absurd, and
poaaibly criminal. Gentlemen, I will now state
(a you the manner in which this prosecution
oomes before you ; because I shall, b;^ that,
wipe off from your minds any Impression, if
faaoible any could have been made, of a sup-
Ipoaition that this information has gone through
asiy consideration, much less received the
aaoction of any one person, or anj court, but
cnniei merely from the hand of him who has
taken the liberty to bring it before you. Gen-
tfemen, the power of exhibiting these informa-
fiaoi has fatally enough been lefl in the At-
fame^ General : it is a claim of office, and be
wees It now. When the court of Star Cliam-
ler was abolished ; when the licenser of the
yioss was taken away; when the master of the

Crown-office was restrained from preferringany
information, without leave of the court, bume
how or other, this power rema*netl in tlie At-
torney General. Gentlemen, if thiti libel be
so clear and so notorious, why was it not left
in the ordinary mmie of indictment, and why
not led to a grand jury. ti» pass their senti*
ments upon it r why was not the Court nrio%ed,
whether the matter miifht have been h(>ard,
that it might be detiTmined in some measure,
on its first appearaocp? The leave of the Court
would have been obtained, if they had seen
proper ground ; an ans^^er would have been
given by affidavit, and by that an o|)pt)rtunity
of exculpation; but it comes iu that naked
state of it, in the information of that arhitrary
creature, the Attorney General, who lias the
power to exhibit, in the way and manner that
the luxuriance of his fancy, and the intemper-
ance of his zeal may sugfgest. Gentlemen,
you will take it, divested of all that circlh
of epithets with which it is surrounded, and
clear it from all*that imputation of office. I
will now, gentlemen, consider the nature of
this (Question that comes before yon,. and tha
foH and the absolute power which you have
over it ; for no power in this kingdom has tha
least control over you ; nor have they tha
least power entrusted to them of deciding upoa
the sulject, but what you refer to them: it is
in your hands, and it is solely there. Gentle-
men, the learned gentleman, taking, ai I said
before, the broken parts of sentences, has,
in my mind, introduced more real reviling
against the sacred character of that person,
whom be supposes here to be introduced, thao
from any part of the pamphlet it fs possible to
collect. Yoa will obcerve, that in the very first
opening of the writing, the writer states as
a maxim of this constitution, and it is the hap*
piness of it, that the king can do no wrong.
He says, that he will separate the private
virtues of the roan, from the vices of his
government; the amiable prince, from tha
folly and treachery of his servants ; that, iu«
stead of friends, persons in that situation, ara
too liable to meet with the imputation of fa«
vouriles. It is in that manner he introduces
that very abuse that is supposed to be thrown
upon his majesty. Gentlemen, you cannot be
ignorant, how many controversial pamphlets
and papers of every sort, of Juniuses and Anti-
Juniuses, there have l>een puhiislied, l»y every
man who thought he had a riij^ht ; and, I hope,
you will be of opinion, every man has a right
to submit his doubts to the public, provided he
confines himself to a free, open, public, and
able discussion of those grievances, which, wa
cfmceive, scarcely affectii the mere ima^ina*
tioo, without a ground; and this anth(»r niuRt,
most sensibly have felt it, as, I think, is mani-
fest from the strength and enertry with which
the paper itself ia couched. Gfi'itlemen, you
will find, through the whole uf this |iamp1iler,
the maxims with which he sets out. 1 pre»iumo
you will see, thattbe minister has found himself,
with all bis tribe of writers, unable ta dei^sA

iB7]

10 GEORGE m.

biiDtelf, and to rafate it ; and 10 liM luid raeomte
to the ool V iottraoMOt which it left in the
Iwnila of the Attarncy General^ the power of
YnSemnf an infonnation, in order lo infol? e,
in crimiDai gnilt, the author of this paper,
whom he found be oonld not refote by all hie
▼ain atlenpte. Gentlemen, it haa beoi the ob«
ner? alien of all agea, that when a hot, a weak,
and inexperienced miniater happena to be at-
tacked, nia conatant refuge ta under the
wing of majcaty ; and that he aeraena him-
aelf behind that throne, which, he ia in hopca,
the Bubject darea not approach ; and, you will
find, that the calm, the able and experienced
•tatcaman, treats the attackaupon hia meatorea,
or upon hia character, with the contempt it de-
ner? ea, if it be true. . Gentlemen, whether the
nolNecta of thia paper be or be not true, I
. viU obaer? e to you, that the drawer of the in-
ftrmation, that the exhibitor of it to you, the
Attorney General, baa not pretended, in any
part of It, to aay it ia lalae ; that you will find,
through the whole tenor of thia information.
Why then, gentlemen, if thia be the nature of
the quealion, and if you hare the power orer
it, it ia for you, anil you only, to determine,
whether th!i paper deaert ea all the branding
•pitheta with which it w loaded ; whether the
anbatantial allegations drawn from it are true ;
which, upon your oaths, yon roust find, if yon
find the defendant guilty— -that he has at-
tempted to draw the anbjecta from their ao?e»
reign, and to excite them to an unnatural inanr-
reciion against their prince : that ia, not by
words of courw, not by aifiectirea, but it ia in
snbatantires, to be found upon oath by yon,
if yon are of opinion he is guilty, I should
not stand np for or support a traitoroua pur-
pose ; but, it is not exfiected of his majesty, to
defend the weak and misguided miDister, whose
conduct is his own, with reii^ard to the public ;
and, whenever that is sullied, he is liable to be
told of his faults. And if you should be «of
opinion, that this ia a free and bold discussion
of the measures of a misguided minister, and
that this was an tnformatioo, Tvhich the author
of the paper meant to convey to those who had
poiver, be it lodged where it may, and might
possibly correct the errors of a misguided leader,
and iufonn a coDMcientious good king of it;
then you will riew it in the way, which I be-
fore gave reason for, and I hope, find a ver-
dict i'ur the defendant of Not Guilty. It has
been always the language, the king him-
aelf cannot be affected ; thnt no man raises a
nersonal invective against him; that attempt, I
Delieve, was hardly ever made, and yet you
will (ind, 1 dare say, from your memory of his-
tory, there have been instances, where several
applications have been made to the throne, face
to face, bv the parties Uiemselves ; as was the
case of tlie learned Bishops* who presented a
petition to the king, arraigning the conduct ao
m of those that advised, and they expressed
the evil tendency of a proclamation of hia own.

• See ¥qL U| p. 193.

There waa DOiproof, only preiBnrafkMi, ftr aq^
ine it oaoMfraa their banda. Itwaaneba

petitioo, arraigning the condnct, and axplainwf
" -'* tendaicy of the pmriawMtiwi, Ihiit S

waaby an boneat inr^ tbbogbt a fttf, a Imd^
andaconatitntiooalpedtMMi; aadtbeyiiaaitas
they bad a right to do, their refecend leidrtiipi
not guilty, after a king deBberatiae ; aad I
shall ait mm in peiftct hopea and oaaidonea
yoa will find thia defendant not fniltj aim.

SoL Gen.* PIcaae Toor Kwdahipt aad yai
gentlemen of the jury, f hope yea will fiti aa
leave to aay a word or two upon tliia Mmm
that haa been made* There bare beea ataa
motwna of UanM upon my cooduot, wfaidi ha
been for aome porpoaea ao drawn into the ao»
tion, that if f , in the aituatkn in which 1 aaio
atood, aboaki reoBain ailent open that aafaiael,!
ahould he thought perhapa aa well to Mny
myself in the bosinesa, as the priociplaa of har
upon whk$h f stand in this prosecution, thaogk
I do not think it of exceeding great aoaw
qnence to the hmoo of this cause, wnetbar thisi
prineiplea bo actually aettled ooo wayorthi
other, hecauae there are no pointo of law ojpn
thb aobject, that in my mind require partieaiv
atrengtb of argument or great abatroaeacsstf
reaaoning, in order to come at them. They Mi
open and upon a leret to common anderaHai"
ing, to that obrioua moral ohaervatioB. of si
mankind, do no wrong to another ; hat yea an
deaired to underatond, the juatic»of Una eiMi
haa been, in fact, entangled in the Ibroser ; aai
that it ia neceasary for you to go through si
that ia called the inducement of tho infciia
tion ; to find the party guilty according to lbs
extent of erery epithet : where ia that law ta ka
found ?

Serj. Glynn. I must beg leave to interrapt
you, it was the substantial proofs, not of tas
epithets.

SoL Gen. It is a matter of no kind of ooos^
qoence to this business, whether the gentlenca
spoke it expressly in the extent I really under*
stood tbem to s|)eak, or whether they left it ts
be collected and inferred to extend farther by
construction, than they really ventured ; that
is of no consequence to this busineaa. All I
meant was to introduce that idea. I sheaM
have taken the freedom to state, aa a prapoo*
tion of law ; that is to say, the substantial alls*
gations ; let it be worded by epithet, or not,
tbe accnsation is of the part the defendant has
published in writinp: or printing, concerning tks
character and person of another, which is in-
jurious to his person and character ; and that
tbe offence is considerably enhanced, whtt
applied to the person of magistrates, and ptf^
ticularly to the highest magistrates whatsaever.
That is the ground which I go upon ; sol

* Concerning the right in crown ,
tions to a reply on the part of the crown tboafl
no witneashave been examined on thoodMT
aide, aee Mr. Home*a Case, a. (151 of Aii
rolome.

S89}

Jor a ISbA.

A. D. 1770.

[890

tboogh I did andentAnd the doctrine of ano-
Iber effect stated in the outset, I am well con-
leyt if we are agreed in law, and will proceed
upon it just in the manner in which I think it
ttanda. 1 did understand, when the learned
gentleman spoke 6rst of it, when he entered
into a defence of the paper, and embarked in it,
that it was upon the same line, and same nO"
tion of law I hare gone upon. The learned
gentleman who spoke second, thought proper
to go a little wider, and give a more general
discnssmn than my learned friend who spoke
first ; and he thought it necessary to tell you,
that this information came under no sanction,
BO kind of authority whatsoever. I refer to
your own memory, gentlemen, whether 1 re*
tied in the opening of this cause at all upon
the authority under which thia information is
filed ; not the least upon earth ; did not I ?
and yet at the same time, if that should come
to be called in Question, 1 am to inform yon it
is filed by an officer of the crown, and whom
the constitution of this country has, in all ages,
intrusted to his duty and his knowledge, a dis-
cretionary power of filing these informations ;
and the very statute alluded to by the gentle-
naen, was after the Uerolution, and at a time
when the constitution was well considered, and
the liberty of the subject supposed to be esta-
blished. At that time, and for the sake of the
constitution, under which we live now, it waa
expressed to be in (hat officer of the crown
to file informations for the sake of the preaer-
Tation of public order ami peace. This is the
law of the country firmly settled at the time of
the Revolution ; and yet now, when the law
comes to be put in execution, juries are enter-
tained with an idea of the oppressive qualities
eiifrting in that law, which the wisdom of aipes,
and the bi>st correction possible, applied to that,
have established what it is that officer is en-
trusted with, a matter of duty and honour not
to file informations, which in liis judgment and
discretion, do not call for the extraordinary in-
terposition of bis office. Whenever they do, it
is his duty to file ihem, unless something had
been saiu to impeach his proceedings in that
part of the execution of his duty. But I can
say, myself, it was filed by an officer of great
judgment, and unimpeached honour; and it
was his opinion, and it was accordingly done,
not to proceed by indictment, but information
in the court of King's-bench. The Court
would not have heard a motion at the instance
of the Atton:ey General to file that which is
bis duly to file. The very circumstance of
bis being to fif^e it, would have prevented the
Court from he^iring the motion ; they would
bave called to him to do his duty in the course
of information.* And is the Attorney General,
wben he plainly sees it with the same eyes
the rest of mankind have seen, and the same
yiew in vrhich they have ulked of it, when he
a durect malignant attack made upon the

• Sea the Case of Bex v. Phillipa, cited p.
070|Oftbisyoluma.

person of the kin^ himself, is he to wait till a
grand jurjr finds it such attack, and presents
nim what is his office? and is he not to inter*
pose upon such subjects as this, where it is hia
duty P and, frentlemen, these are tlie grounda
npon which it is to be tletermined by yon. To
apeak properly of the gentleman that spoke
first, they are not his grounds; though the
aecond, be has endeavoiu^ to mislead yon
npon the subject, by telling you, that in his
opinion, this is not a libel ; but be has withal
^iven yon his reason why he offers to argue it
18 no libel, because he says, it does not apply
to the person of the kin^. Now I agree per*
fectly, that as far as this information go^, it
charges, that this libel does affect the person of
the king ; and if he has made out to your sa-
tisfaction that no part of the libel does so affect
him, then that part of the charge will lall to
the ground, as well as that part that affects the
great officers of state. If the defendant has
made out there are no passages that apply to
those persons, then he is discharged from that
part of the information ; so, with regard to
that part affecting the House of Commons, if
he haf made out that the House of Commons
ai^ not directly and personally reviled anil taxed
with the grossest corruption, even with liciog
bought by the ministry ; if he has made out
that proposition, then that will fall to the
ground. 1 do not mean, (because vou bava
the paper before you,) to go over those pas*
sages, at the outset of wliich it appears, tha
person of the king has been directly meant,
though some bave been taken up, and others
omitted, by my learned friend in the defenca.
I will connne myself to those that have beea
taken up. He tells you, there is a great ac-
knowledgment of the ro^al virtues. What a
wretched misery is that in the obvious sense of
those that are to determine upon it. If he does
acknowledge those royal virtues, he taxes tha
king with those that are directly op|M>8ite to
those qualities, and the taxing of'^ tbem, I will,
point out to you immediately. In the first
place, my learned friend says, what is said of
the king, is but the ordinary accident of
thrones, and the most active of kings havoy
in some part of their lives, suffered in the ad-
ministration of government. Anil therefore it
might be as well said of all kings whatsoever, or
at least the greatest number of kings, and no
harm could come from the zeal that is express-
ed to the present king. Observe thd langusga
of the paper, itself. ** It is tlie misfortune of
your life, and the cause of your reproach and
distress." Is this the language that may ba
said of all kings P and his being unacquainted
with the language of truth. This is only drop-
ping ideas concerning the application to tha
Ling, and very far from fact; and therefore
the officers of the crown, are they who want
to make that a libel upon the king, that was no
libel. Were it only about in coffee- bousea,
that the king was unacquainted with the laa-
guago of truth, and constantly erring, and that
be bad not disoovered bis pr^udioBSi wara

•01] lOeEOBGB m.

iM liid dbMt iipOB tftbbi IB ta?«B0 aW aa^
to kaMM, noMjr wdtnlood iltotealiM.
B«l H iM«m9 1 IM* whflB the ofioen of the
gwma, itff the fiadJotti— of Um duuroelflr of
Iho 1^» Ibovgbi propor. to bnaf it before t
ttolMJiiiUM '

QM

thore. With ngird to tho
kff4 lioolHUuit of IroUndk my korood friood
■oyi, tlMtc is no opplicotion to the Jang.
« CortMoly thm is no appUootioo to tbo idof

wlMlMMTor.' Now lot no ioo t littlo wbcUier
llMraisnot.

MlWMoplooflfolindgifoyott oforjdoj
DriiliaHurlaioftlMirnMntniont;'* oothotit io
itrodnoodtotlMfking. ** Thoj deiyiao tho at^
MiaUo gOfotnor yon horo oeat thoMr beoonao
Im io n emtuo of lord Bnto.'* Tbioiotho
ahoto upon lord TdiTMhend; farwhot iwnon
k bcot known 10 tho oathorhioMolf; botifthoy
nro Miittfi of mon'i choraotao to tral tb^m
jtwtao tboy ^oooe» thore it on ood of oil kw
end JMtieo. Bol whon.it conoarno thn poraon-
€f a kmgt it io not from tho natorol idooa tboy
•TO 00 raady Io oooiNnid tho poioon of o king^
In tho ponon of hit riprMtntotifo, oo bo'itotoo
iho pooplo of Ireland, ofenr day gifiogr fneb
BMurko M their reoentment, beeaine tboy nador-
maad them it no difeienee between tlw original
<f a king) and thcur repreeeBtetive. It ie not
mmiug to a eoafiiaioii of their iiieeo they do io
that manner ooofoond it. Wliat does lie loy io
the next porl after Irelond ? He then proeeede
Oo auto AmerioA, of which he fint of all eayo,
*< they wororeadj ODOOffb todietioguith between
tfio king end hia mimateroy end to throw the
Ihnlt npon them ;" and that I suppooe ia not to
ho applied to the king. But atterwardo be
naya, '* the dodnre* peraonal part you took
egaiaat thma ;" — ia tbie charging tbe minialry P
<* that decisiTe, perMmal part you took against
them, baa effectually banished that first dis*
tinction from their minds ; they consider ;jrou
na united with your senrants againat America,
they knowing bow to distinguisu the sovereign
oiraa renal parliament on one aide, from the
real sentiments of the English people on the
Other." Has this oo application to the king ? It
certainly has. I have stated these few in*
otances, merely because they were those that
ha? e been taken up, in order to show they bare
BO application to the king. Gentlenien, 1 hare
elated them to you, imagining we are so far
vpon a juat ground, and that yon can imagine
BO other but that the kiog is as pbinly distin-
guished from erory bod^ else, as ony thing in
the world can bedistingmshcd.

They are right in aaying, that if yon find it
Is meant ao, what arails all that has been said.
But they go beyond that ; and fcry properly
say you are the refuge of liberty. You are
io. Ypn are the rnngo of those who find
thcmaehrea wronged contrary to the laws of
Ihia ooontry, and apply to the laws of this
gjimtry for redresa. And if yon, who are tho
flvfogo of liberty* io that sense, should either
hf such delusion, or infloaoco of pngudioeoBd

taanOth in fikvoiirof aoeh atnmgoideoa,
wm^AWh^tmnm^l^i^^^^ thatjnattoo

to thooo thot omiy ftr )natleo» lhoi# 4
Ijr io neither ibarty nor property, nor
tion, nor any thii^ whieh thia conniiy haa
hitharlo Ihonght worth protaetioB, and tho kws
wonM not bo oble to pratoet then. IpMart
to Ood, it oppoara to mo in a reneonlnf way,
teo strnfe a projposhion, to any liberty la om-
oorood u protoetioganian in writing im«iiB«riy
and opprohrioosly ogoioat tho charnoler af a
HHtt, which io tho aaoM aa if it wao eoBoenai
inpralooliogftnionur robbing open tho hig^
ways. Qenthmen, yon nay aa well hafote
fneatian pot far yoor dikeooBOns whether yea
woud bavo tan or fincen gninooa nnvalsly
atolen from yoor peraon, by whieh tho pai^
would bo UaUo to be condonnod, or wbinhw
yoo would hoTO yoor name hnng oBt.la Iha
public aa a man who ia di^graoefol, dishOaOi^
and unworthy of any poet yoo hdd. Whith
would yon obooseP Audio thotene of Oi»
BMU aenae, which can any man onoat yoa
flhonldohoooeP And how oon yon find 3^
TenUet when yon are desired to withhold, cBl^
Irary to all evidence, and ovury aooaanny
oondnaioo, that joetico which tbooo canals
aionodo caU forP Yon aro not dealrH tari»
liofe they hio not published by tho^diffiafaal;
that is giveo up here ; yott aro deairai tol^
liove, that they do not talk of tho kng klha
paper. That argument ia not what 1 a»
peeted to hare been proved. Yon aro derini
to thmk it would bo a derogatMNi ftoaa year
authority, should you be obliged to fiod^aiN
eordiog to the evidence. To be aura you wn
bound, if we could not make out the truth that
beloaga to tbo charge, which, if wo do, withal
you can find reasons to deny that TOfy tralb
which. your reasons and conseienceo oaaa^
resist ; to be sure, that is one of the Inferior li*
tuations of a iury. But that is an inferiority
which don't belong to your situations aloaa
Judges are likewise sworn to pronounce aa*
cording to law ; and that is all the constraint
upon the oflice yon now hold ; and if you fiod
the facts are as I stated in the outset, notwitin
standing what has been said in the defence, it
will be too plain an absurdity to say ho is ast
guilty.

Ijofd Mansfield. Gentlemen of the jory, if
the direction that I aro going to give yoo, aati
the object of your conmderation, and the fait
and ground upoo which your verdict ought H
be founded, according to the law and oonstito-
tion of this kingdom, and that oath that h
taken by each of you ; I say, if that dirediM
should be mistaken, I have this comfort in mj
own mind, that it will not be final, but opaa
application to the Court for a mia-directioo^ ^
can bo aet riglit. The direction I am goiog la

five you, is, with a ftiU conviction ai5l omfi*
once, that it is the language of tho law. lUl
is an information that is brought agonal tla
defendant for printing thia letter, whtoh ]00
bavo beard read, of the tenor net forth, oar tf
Iho BMonfaig put upon thoer parto of i^
whioh aio blanka in tho orifmal/ly te hiP^

899]

Jora tibA

A. D. mo:

im

rormatioo, and eonemiog the penont cbtrg-
ed by the informatioiiy to be the pertoM
Gonceniiog whom it was wrote. This is the
charge. Now the question fbr yoa tq try
upon the eridence, is, whether the defen-
dant did printer publish, or both, a paper of
the tenor, and of the meaning, so charged by
the information ? As to its being of the tenor,
the paper has been read to you, and if it
bad not been of the tenor, there would have
been an objection made durinsf the course
of the reading ; and there would have been,
ao end of the information, if the^ charges
were wrong, for they could not have gone
on ; therefore there is no objection as to the
t^or.

The next thing is the meaning; and the
meaning is what is put unon it by the infor-
mation, in those places wnere there are blanks
to the origioal, as k dash g for king, m dash v
for majesty, and so on, as you heard it read.
As to that, there has been no particular ob-
jection made by the counsel, that in any one
instance the blank is ill tilled up. If that could
ha?e been made, tlieir ingenuity would have
found it out. If you say they are not well
filled, and the paper is not of the meaning set
forth in the information, then you must, to be
awe, acquit him. But, if it is of the tenor and
meaning, set out in the information, the next
consideration is, whether he did print and pub-
fish it? Now, as to that, the evidence stands
mieontradicted, and without any obserfatioos.
It is proved to be bought of his servant, at his
boose: that dropt from the counsel without
any observation. If yon by your verdict find
the defendant not guilty, the fact established
by that verdict, is, he did not publish a paper
of that meaning; that fact is eMtablisbed, and
there is an end of the prosecution. You are to
try that fact, because your verdict establishes
that fact, that he did not publivh it. If you
find that, accor !iog to your judgment, your
Terdict is final ; and if you find it otherwise, it
is between Qod and your consciences, for that
is the basis upon which all venlicts ou^ht to be
founded ; then the fact finally established by
jour verdict, if you find him guilty, is, that he
printed and published a paper, of the tenor, and
f>f the meaning, set forth in the information ;
that is the only fact finally established by your
verdict ; and whatever fact is finally established,
Siever can be controverted, in any shape what-
soever. But you do not, by that verdict, give
mo opinion, or establish whether it is or not,
lawful to print or publish a paper, of the tenor
•nd meanmg in the information; for supposing
the defendant is found guilty, and the paper is
•ocb a paper, as by the law of the land may be
|irinted and published, the defendant has a right
to have judgment respited, and to have it car-
tied to tlie highest court of judicature. There
ia nothing upon the fact : if in point of law it
ie innocent, it would be an innocent thing, ap-
pearing 80 upon the record. Neither is it found
established upon your verdict, that he did it
with aoj degree of malignity or guilt in the

bavo ad of printing and pnblisbiiur. If ho
prints that which is onlawful, H follows in
course, whether it is with a degree of greater
or less maiigaity. For there is no one act, thai
may be attended with a greater variety of cir-
camstances (ahnost infinite^ than the manner
in which a man might print and pnblish ; it
roig4it be from the lowest to the highest de*
gree of gnilt, even to a very venial degree of
guilt New that is not established by your
verdict, all those epithets being a mere form
in informations, and they are inferences of law^
which are drawn upon the printing and pnb-
lishing a libel, if it comes out upon the faoe of
it to te a libel. It is very true, I am nsed to
speeches made to juries, to captivate them, and
carry them away from the paint of enquiry.
Mr. Serjeant Glynn did admit, the ioduoemeot
was not to be proved ; not so mtich proved, an
is set feith, as malice of foretliouffht, in eases
of morder, or the Instigatioo of the devil, and
yet the form is kept up. As to the other epi-
thets, ho did admit of them, as his candor mado
him do. After argning upon the epttlieta of
seditious and malicious, he did say at last, I
do not see it is necessary to give proof of tho
whole ; therefore that is not the fact to bo found
by your verdict, that is inference of law ; and
many instances shew when the jury have foimd
him guilty, before the defendant comes up for
judgment, be ia at liberty to extenuate hii
crime, and even bis own affidavit will do it ;
and if the foot bad been found by the verdict,
it is impossible that can ever be controverted,
nor ever foftber looked into. These are tho
grounds, therefore, which I leave to. yon for
your consideration. If you are not satisfied
that the naper proved, is of the meaning put
upon it oy the information, where the blaniu
are filled up, and the persons concerning whom
it is spoken of, you must acquit the defendant.
If you doubt of the evidence, as to its being
proper evidence, you must acquit the defondant.
If you are satisfied, as to both those, that ia
the matter to be established ; by both those,
and according to right, you oup^ht to find it.
And, indeed, if you were for having the power
of pronouncing a verdict of not guilty, as to
the fact ; to be sure the jury, in every cause,
may make an end of the question, whether they
have not a right to find that verdict.* If you
take upon you to determine the law, yon mast,
for the sake of your own consciences, be sure
to determine according to law, and you most
be sure that the law is,f that such a paper may
be printed and published, of the tenor yon fliid
it; the oonsequence^ of which is very obvious
to be seen upon this occasion. If the law was
to be determined in every particular cause,
what a miserable condition would this country
be in with reffard to that part of it, as it is said
there cannot be a greater curse than uncertainty

* See voL 6, pp. lOlS, et ieq.

f As to this method of address to a jury in
such a case, see ' Aaother Letter \a Mr. Al*
moD,' p. j8.

895] 10 GEORGE UL

in the law ; for one jury in Middlesex ^d one
way, and a jury in London another way. A
jury in Middlesex has found a Terdict, and
(»nvicted one person * for the pablication of
this same paper, but you are not bound by that.
If juries were to find according to the different
ioDpressions the different points of law have
upon them, there might be no law at all upon
the subject. You will consider of it, and I will
repeat to you again, vou must be satisfied as to
the meaning laid down in the information,
and eonoerniog the persons, and you must be
■atisfied with regard to the uublication ; if you
are satisfied you will find him guilty ; if not
yon will find him not guilty.f

The Trial began about nine o'clock in the
morning, and was finished about twelve. The
iury retired into a private room, and continued
locked up, till half an hour past seven in the
evening, at which time they were agreed in
their verdict ; and the Court being broke up,
they carried it to lord Mansfield, at his house
in Bleomsbury-square. His lordship met them

^ See Almon's Case, p. 868, of this volume,
f But now see stat 38 G. 3, c. 60.

Tlie Case tfH. S. fFoodfaU,

[896

at his parloor door, in the paasage, and the
foreman having pronounced their vardict Not
Guilty, his lor&hip went away without saying
a word. But there being a vast concourse of
people in the square, who had followed the
jury from Guildhall, they, as soon aa the ver-
dict was known, testified their joy, by the
loudest huzaas.

Several inaccuracies in the preceding re-
ports of the cases of Almon and Miller I havs
not ventured to alter.

As to the proceeding for an attachment
against Almon in respect of the puUicatieo of
the ' Letter concerning Libels, Warrants, Sd-
Eure of Papers,' Sec, see vol. 19, p. 1088 ; tad
Lord Chief Justice Wilmol's • Notes of Opi-
nions and Judgments' as there cited.

Concerning the non-examination of Milkr,

E. 835, see what Mr. Dunning said in tbs
louse of Commons, reported 16 New Pvl.
Hist p. 1879.

Of the conversation which passed beCweca
Mr. Mackworth and lord Mansfield, p. 838,
see Mr. Mackworth's account, 16 New Pail
Hist. 1149, 1189.

S55. The Case of Henry Sampson Woodfall, on an Informatioa
filed by the Attorney General for publishing Junius's Letter to
the King: 10 Geouge III. a.d. 1770.* [London Museum.]

June IS.

X HIS day came on at Guildhall, before lord
chief justice Mansfield, the trial of an iDforma-

* The report here ^iren, is the fullest which
I have seen of this Tnal. I have therefore io-
aerted it, notwithstaodin^ the flippaocy and
partiality of its manner. In Mr. G. V^^oodfall's
recently published edition of Junius's Letters
(in which edition is exhibited various illustra-
tion of that work, and consequently of the
history of these prosecutions) is inserted in a
note to the author's preface, a very abridged
account of this Trial, from which 1 shall print
below the report of lord Mansfield's charge to
the jury.

The following passage from a note to vol. 2,
p. 62, of Mr. WoodfalPs publication, is not
impertinent in this place:

" The address to the king through the me-
dium of this Letter, made a very great im-
pression upon the public mind at the moment
of its appearance, and though 500 copies of the
Public Advertiser were printed in addition to
the usual numbers, nut a single copy was to
be procured in a few hours af>er its publica-
tion. The author himself, indeed, seemed to
entertain a very favourable opinion of it ; as in
Prifate Letter, No. iB, speaking of this Letter,

tion filed by Mr. Attorney General e4p qfino^
against Henry Sampson Vroodfall, for prmtisg
~ publishing a letter signed Junius, in the
lie Advertiser, of the I9lh of Dec. 1769.

and
Publ

he says, * I am now meditating a capital, and,

* I hope, a final piece.' It was for this pro-
duction that the printer was prosecuted, tod

ri»l>tained the celebrated verdict of * guilty of
printing and publishing only,' the consequence
of which, as already observed in note to vol. 1,
p. 29, was, that two distinct motions were
made in court ; one by the counsel tor the de-
fendant in arrest of judgment, grounded on itf
ambiguity, and anottier by the counsel for the
crown, to compel the defendant to shew cause
why the verdict should not be entered up tc-
cording to the legal import. The case being
argued, the court of King's-bench ultimate!/
decided, that a new trial should be granted.
This accordingly commenced, when the At-
torney General observing to the Chief Justice,
that he had not the orii^^iual newspiper by
which he could prove the publication ; bii
lordship laconically repiit d, * That*s not nj

* fault, Mr. Attorney :' and in this maaner
terminated the second trial. The fact is, tbit
the foreman of the jury upon the first trial bsd
pocketed the paper, upon its being handed ta
the jury box for inspection, and bad aAerwaidb
destroyed it. The ez][)ence the defeadtat vii

n InfiftiiationJoT publishing a LibtL A. D. 1770.

[898

WitUsTn Qond.of IValbrook.
IVler CiRilet. Swlthin's-Une.
AleunJar Peicr Allan. Alark-lane.
Prcikrick Cumerell, Miririnij-laue.
Hnoiiii Htyrr, 'IJUu.
John Tbomat, illrln.
Barnin^un Buggin, Philpol lane.
TV> which were added the rullowiiig five

William Ualyanl.

Pmil ViiTicea. carjientef, Uitlaff-lane.

Williara KUitry.

fVitliant Willcl, plaUterer, DUlaff-laae.

William Dafia.
AfW Ittr. Walker had npened ihe canw, by
•adiiii; ibe letter sijtDed Junitu, ftc. with tlie
lUentMei ol'lbe iiirorinatioii,
Mr. Attorney Generai (De tire;) began,
nciiy Bl ten o'duck, by «Bjin|f, ibat DoUiingr
ad c*er raised a juiter indigiialiiiii in Ibe luiiid
f etefy mm wlia wUhea tile ciHiiiauaace of
ur tixc«lleui couMituiion, iban ihi« teller of
Uli*a. He then addresaeil himsflf lo tlie
MMOU* and interest nf the jurors, by (ellin;;
wm tliat lliey were more than any nllier men
Moerneil to brin^ bucIi oHVndera In Juitice,
(Ciine »ay lliiag that tepiled to public cnofu-
OR, waa oiore especially fatal to cointnerce,
ul to those wbn hazard 1ar|re rnrtunes in
Ddr. He (aid, thai tUis letter of Junius
::.M to public oonliisiaD. lis then Imrao-
' <i Miib irreal leemiog zeal uii ilia glorious
: 1 « of the press f liich lie ai^kunwIedgeJ
'^■lii la be encouraged and excrcined, as far
■ euuld posaibly cinsiM with tlie rn'y being
TMciety. But be said, thai Ihe abuse ofthe
bwty or the presi is more Talal than any
iher ; and therolhre entrealeil lliem not to
diet tlitt liberty, intended lor our stdtatiop, to
B lurtied lu acdilion, to our perdiliou. tie
tid, th« jury would be insirucied I'rom the
each,— that ia,— a— a— he must believe tbey
mid be, instructed Troni the bench ; that the
lly two things fur Itieir sonsideraiioii were,
> Wbttber the blanks in the iirinted paper
Waftifly filled up in Ihe inlbrmalion : anU
. WiMlher there were toffident eriJence fur
WM^caliuB «!' the paper by WootJIalt.
Hr. AUamey General theo laid, he ibongbl

Btuinlhisproseciilioii. u Etsted in triTste
clUr, Nu. Ifl, smounted tu about V20i. The
to tit, Almon, who was also proaeculed lor
llUaira repriat of ihia Letter, MKrta, iuanole
lamMhtr eriition of Ibia work, ihu tlic tegtl
■ncnca incurred in ilelendiug bis own DCtioo,
'-''-li eouM not eiueed that vf the oiigiuil
.i':r,Biiuuililed lu between sand 000^! An
.■^nation which provec the necMaily of
.iiiiaiDK no am^l degree of cautiua, in eati-
latiag WhBtM'Mr olber tacts be baa allcmpted
* idvue*. With K rict* of etodiUtiog the ge-
■al hiriory «E Itu liiUM. "
VOL. XX.

it proper lo (.■xplain his onn conitiiCt ; because
he was not merely an advocate in these nut-
ters, but olHcially ftnswemble. This letter of
Junius, lie assured the jury, ha<l giten uniTer-
tal offence. He bad therefore ia hsttU mx
ulber prosccutiaiis uf different publisbera for
the same utfeocc. Ue thought it bis duty lo
prosecute them, anil had therefore demanded
the names of the publitheis, becuuse he, Mr.
Attorney General, Uoes not read Dews-jispen.
In the objects of prosecution, he endeacoured
to make a distinction, and lo pass by those who
were poor or had large families of children,
\c. He d^claral upon his honour, as a man,
that he had no motive to urge him against any
particular publisher, but merely the execiitian
of his office. That be could have wished to
have tried Mr. what's his name ?— Wuodfall,
aye, Mr. Woodfall, the original publisher, first:
because na fur who was the author of Jimiui,
that he could by nu means discorer, that re-
mained an impenelrable secret.

After ibis defence of himself, Mr. Atlnniey
General returned again to the cause in hand ;
by repealingtothe jury that if, Isl. iheblank«in
the Public Advertiser were laitly filled up by
the ionendoes of the inluriuaunn ; and it, 2dty,
the puhliculino was proved, ibe jury must fiud
Mr. Woodfall guilty.

Crowder, the firsi witness, was then called
at twenty ntinuies afier ten, and examined by
Mr. Thurlow. (Holicilor General.)

Cromdcr deposed. That it is his office and
employment to buy up the puMirations of
every day tor the 1 leasury (on Almnu's trial,
this same wilnuss, Crowder. calleil himself, an
assistant to the Messenger nf the Pre«s) iliat he
bought the Public Advertiser in question, of
one Cnlford, whom he supposes to be Mr.
Woodfall'* man ; he bought It iu Mr. Wood-
fall's pnbliablag room ; he bought twelve of
them. He had bought (he Public- Advertiser
every day at Mr. Woodfall's for a year past.

TheLetterof Junius wa«lbeD read froiD tii«
paper.

The Kcond witness, Rnberl Harrii, w«i
sworn, and examined by Mr. Morton. He
raid he was the register of the stainps. He
produced his book, in which the news-paprr of
each day is kept, for an account of th<: adver-
tisements ivliicb are paid for : he said, the ac-
coDntforthe Public Advertiser is kept in the
name of Mr. Woodftll ; that receipts are made
out la him ; that his servant generalTy elii^nils
monthly lo settle sccnunts tot the duly on the
advertisements iu that iwper, hut that tome-
times Mr. Woodlkll bail attended in perann.

The third witness, [Z<ee] was sworn and
examined by Mr. WallMe. He said he was a
servant. U sir John l''i«ldiug} that he had
nfWn carried advertisemenls Irom his nuister to
Mr. Woodfall; had sometimesteenMr. Wood-
fall and delivered them lo bitii. but very rarely :
that he bad one receipt for advertininesita in
the Public Adiertiacr, «gued by Mr. Woodtall,

S'J'J]

lOGEOllOE III.

TAc Cast nffl. S. Woodfatt,

I

Hrre tnAeA tlie evidence and pletilincr on
the lide uf the prosecuiiaD.

Ur. SprJFBnl C/ynn %a\A, He a^eed villi
Mr. Atlomry General as to the eicellpnceof'a
LodJod jury, and donbted not tlie liberties of
tlie penpie uere luffieiently stXe, white there
were trials hy jury. He told the jury, that if
ihey were or npimon, that the tense put upon
Janiui's Letter in tlie inrnrmalion, was the trti ~
•enie ; irit wai dear, that il wai a false, scan
Jalnus, and leditrous Ithdl ; if tliey thought hi
client published it uith a profeued ioleniiun,
premedilaleilileaiifn, of aboMng; and aspersing
ihe king; if the defendant meant or wished In
alienate the affeciinni of his majetly's aub)!
if il appeared to Ihem that hjB end la printing
it was In stir up rebellion and cofnmotion ; as
bonesl men they oughl, and tioilouhledly
would, bring his client in guilty : but — if, on
the contrary, the temper of the times was sucb,
that the people needed that kind of information
contained in Ihe letter; if tbe facia could be
proved ; if )be acts of government, in which
■lie king, at a part of government, was neces-
•arity and virtually concerned, hif^hly de-
- itided '" ■ ■

d the prints

id public reprehi
pnblislied il with the truly laudable
informing his t'ellniV'SubjecIa ; if, so far from
coulaining au;^ personal abuse of the kins, it
was written with an honest but guarded tree-
dom ; (he author and publisher wnutd, by all
worthy, all sensible men, be considered as Uav-
ing acted Ihe parts of good subjecta, and good
oitiiens. He informed (he jury, thai ibe
<»unsel for the crown had not gone upon Ihe

cpitbeU bestowed upun it in tbe iuformali
and that the paper in which itwsalirtl printed,
wBB not hy any means set apart solely to can-
vass lor pari v or faction, but was equallv ojien
to all ; he admilted, that private persooalabuije
was wrong, hul Ihe public acls of govemoienl
otlen demanded public acruliny ; (bat many,
very man}' of thebi^^heat rank,'aa well as from
Ihe highest to (be tuwett in the oppu»ilion,
had been scandalously traduced and viliRed io
Ihe public papers with impunity ; that if ihe
defendant was brou<;lil in guilty, the hands of
every publtaber would he tied, and the gentle-
nieti not in office might, hy Ihe ministerial
scribblers, he abused lu the grossest degree, as
il would be daugerous la ansiver tliera, if, upon
the appearance of every free answer, inlbnna-
tious were to be Sled, and the printers con-
vioted and punisbed; the liberty of the preits
was immeiliatuly r.oncerned ; the stroke was
lerelled at it in this prosecniion : but be did
not doubt Ibe jury would maturely, deliberaU;.
ly, and attentivelv consider the matter, read
over Ibe Letter with care and cirenmspection ;
and if they found it was not written with intent
to vifify the person of Ibe king, but freely to
canvass the acis of goveruiDent, they would
consiiler the publisher B!I having dune his fet-
J«ir-f ul^ecls etsODlial service, and acquit him.

,.,,b

iider I

Mr. Lett the other counsel for the dcfendi
then got up, and began wiib ab.setving, tl _
after the very learned and able speech made fa
"~ Serjeant Glynn, little remained for him j
■■■■I be particularly urged tbe jury lo «
le intention of (be printer io pi '" "
lo remember how iieculiarly ni
it was, at this juncture, that tbe ptes
be open to all political discussion. He dcfendi]
(be piper on (be same principles as Mr. Glynl
and made a ver^ eloquent and judicious h"'
raiigue, concluding mih declaring, thai as
intention could be proved, ihey ought not to '
find his client gnilly.

Mr. AHorney General alfecled a bind «f
surprise ; lie said, the counsel Ibr the defn-
dani hail staled points of law to the jury ; thai
he believed he had a right to reply, notwilb*
standing they had not examined witnessts;
and hebelleved an, hesaid, because they hid
slated points of law which he did not allow.

Lord Manifield lold him, that, as Attoney
General, he might reply, nnlwithttandiog IH
defendant hud not examined witnesses : tbil
Ibe Solicitor General indeed, c
counsel, could not; but that the Attorney Oe-

hada _.

cular, that he would not reply (yet a'
while be still kepi making a reply, inch W H
was) at length Hniabed with saying. The bc«A
will reply on those points t» tbe delendsaA
counsel, and instruct the jury properly.

Mr. Attorney General w
bis former belief, and in his laller declaiaL.. .
of what the bench would do sud say : tbrlM' '
niansiield then gave liis charge to the jifj
according to Air. Allorncy Gcoerart aolkip*'

Lord Manifietd lold tbe jury,* that tbm

• The following is the report of lord Mial-
field's direction to the jury, given in tbe prt- '
face to Mr. G. Woodlkll's edition ol Junius:

"Lord MansHeld, in his charge, told iM
jury. That there were only two points for lh«r
consideration : the first Ihe printing and pub-
lishing Ihe pBjier in question ; the second, ll><
sense and meaning ol it : ihalat tolhecbargt*
of iu being maliciiius, seditious. Sec. tliey wn*
inlcrences in law about which no evidence of°
be given, any more than that part of an indict'
inent need be proved by evidence, wliiC"
charges a man with lieing moved by the io>^'
gttion of the devil: Ibai therefore the printtuS
and sense of Ibe paper were abine what tii'
jury bad to consider of; and that if the (lai^ •
should really contsin no breach of the k jf
thai WIS u matter which might afterward* T
OTOved in arrest of judgment : that he had '
evidence to sum up to tiiem, as tbe defemlaM
counsel admilted the printiog and publiealU
'" be well proved ; tbai aa lo "'" "
id not called iu doubl the a

F

n an Iij/brmaiwHjor puiluhilig a LiM. A. D. 1770.

two point! on whicb they ivertj
»« their rerdict: there were only

Ml;

10 ^ire their ferdict: there
[WO painu on which, icconltn^ lo their oatii,
ibcy mutt determine. Thai m lor the inien-
lion, ttte mnlioe, leililion, or any other Eiill
Mnler wonlt which might be siven io int'or-
nalioai tut tibelt, whether pubUc or privaie,
Jiejr were nere tnmial wurdi ; mere worJa of
XHitM i nwre intereoce of tiw, with which
;beJDff were uoi locoDoero ihemsetrcKj ihit
ibey were words which lignify nolliing' ; juit
IB when it i* aaid in bill* of indictment Tur
■nntor, " initi|[Bted by the devil*," Ace. that

lie iluhes ia ih« |>Bper were
rMorJ, by gif id; aaj' other i
ngMi irthey had, the Jury
a coiutdar which appli
' U cbar^ced

filled up in the
eoie 10 the pas-
*ouM have been

inrormalion, or BUEge«ted
y the deiendunL That (he jury might now
wmpare the pnper with ihe int'ormaiion : that
f ifaey did ddI hnd the application wrong, ihey
auM find the (lefeiiilaot guilty ; anil if they
lid fiod il wrong', they muat acquit him : that
Jiia was not Ihe lime for alleviation or a^ra-
rmljon, that being for future consideratiott :
Inl «tery suliject was under the controul of
itte law, and had a right to expect frura it
n«teeliun for hii perfon, hii properly, ami his
[ood name : that if any mati offended ihe laws,
ne wan anienahle to tbeni, and was not lo be
MB *u red or punished, but in a legal courae:
ilU any perum hbelled had a ri^hl either to
[■ring a cirit or a criminal pro^eciiiioti : that in
the lalter, which is by intormaliun or indicl-
n«nt, it n immaterial whether ihe puhlicalion
he talae or true : that it is no defence tu say it
I* tme, because it is a breach of the peace, and
therefore criminal ; but io a civil proiiecutiun.
It ia a delence to say the charges in the publi-
BBIioB are Irue ; because tbe plaiatifT iliure
•oes only for a jiecuoiBry salistaclion to him-
nit; and that thia is tUe distinction at to that
naturcof defence.— His lordship said, he was
ifiaid It was too true that few cbaraclert in
the kio^doni escaped libels: that many were
rcry injuriously treated— and if sn, that Ihe
beat way to preveol il was by an application to
Ihe law, which is open lo evtry man ; that the
liberty of ihe prets consisted in everji man
having the power In publish hia seotiiuenta
irilliout Rral applying for a licence tu any one ;
bni if any man published what was against
Uw, he did it at his peril, and was answertdile
for it in the same manner as he who suffers
hi> band to commit an assault, or his tongue
to utter hlwuhemy."

'In the ' Iietter from Candour to the Public
Mieillsii.' it it mentioned, that in the trial of
Vtt printMSof the North Drilon, Nu. 46, in
irtti, bill Mansfield, in a very mastetty man-
ner, iuteimplei] the couoset, and informed
ibtfli, and afterwards in an elaborate iliscourse
ahnly inatiDrted the jury, thai the words in

Iiaforaialion, charging the paper to have
I f ubiiihed with Ihe most wicked intent, in
I to «scilc hit uiajesly's dutiful subjecU lo

Ihe two poinla mcRlioned were the only thing*
for theconaiderstionof ihejury. Tliatiflbere
was indeed nothing criminal in Jnninx's Letter,
their verdict of guilty would do no hnrra,
would he attended wilh no ctiiisfqaences. Tbe
Court Hould consider of ibal ; Ihe Court wero
the only judges of that. If that is made ap-
par lo the Court, the Court wilt arreU Judg-
ment. He said, my brother Glynn bss ad-
mitted that the truth or talsliond of a liliel,
whether public or privale, however proseculed,
is out of tbe quest ion.

At this assertion of lord Ulansfield every
man in court was shncked. , Serjeiol Olynn
wat astonished, and, on spplicatiuu made to
him instaolly hy several of the counsel and his
friends, 10 contradict lord Munslield's nssrrtion,
Mr. Glynn, uiih Ihot hooest ditlidence natural
to him, asked tbeni, >■ Goml Gud ! Did I ad-
mit Boy thing like what lord Manslield says P
Did l,]iy any incorrectness in the expression,
or hy any mistake, use words ihut could be so
misunderstood or misinterpreted f" Every
gentleman near him assured him that he had
not. Whereupon Serjeant Glynn rote, and
very modestly assured his lordship that he had
never admitted what his Inrdship supposed. —
Lord Mansfielil hegged Mr. Glynn's pardon,
and turoeil il olT whh Rreat dexierity, just aiy-
iogsliglilly, "Ob! I find I wasmislskeu;
well ilien, my brnlher Glynn is of a ditfereal
opinion:" Dnd then instantly pmcetded: — As
you have been told these are Ihe only t»o
points for your decision ; if, indeed, you think
that the otank^ in Junius's Lrlter can have
another appticaliun than that put ugion them
by the information, that is a matter tor your
judgment; but you uiust observe, Ihat even
ibe counsel for the defendant have not pre>
tended to yut any other meaoiog to the blanks.
If you think the evidence for the pnhlication
not sufEcieni, that it likewise a matter for your
consideration ; but yon must observe, that
even ihe counsel for the defendant have ad-
milted the publication. Lord Manslield then
observed ihst the laws and proceedings in re-
gard to libels weie periectly equal, equally
advantageous lo high and lo low : for that the
low might prosecute for a libel, if they were
defamed, as well as ibe rich, and would be
sure lo have jnsliee done ihera by Ihe law. Ha

sedition, and clinrging it lo be a false, scan-
dalous, and seditious libel, were words of
course ; like ' corrupt' io an indictment for per-
jury, or tike those in an indictment for mnnler,
charging the murder to have been committed
at the instigation of the devil, and thst Ihe Jury
ought not 10 regard them at all. The author
of Ibc letter, alter making this italemcul. and
coniparing the language so ascribed lo lord
Manstielir with thnt of Jeffreys in the case of
sir Samuel Bai-nardiston, see vol. 9, pp. 1349,
13S1, 13S5. remarks upon the concurrence of
the two chief Justice* not only io teDlimeU but
in enpreSMon.

903]

10 GEORGE IIL

Tke Case qfH. S. WioodftU^

[go4

said, that it wai not then the proper time for
mi^gravation or alleriation, or coomderatioB of
tbe mttter of the Letter, or of Mr. WoodfalPs
iatentioir; to be sure the Courfwoold consider
all that, when they should come to pass sen-
teaee. As for the liberty of the press, (said he)
I will tell yoQ what that is ; the liberty of tbe
press is, that a mao may print what be pleases
without a licenser : as long as it remains so,
the liberty of tbe press is not restrained. It is
the same thing as in all other actions : a man
may use his arm ; but he must not strike his
neighbour : a roan may use bis tongue, but he

must not speak blasphemy. At the word

* blasphemy' so lugged in, there was a general
whisper rati through the Court : for every one
perceived the aim of it, Mr. Wilkes sitting so
▼ery near the Chief Justice.

About twelve the jury withdrew. At half
an hour after three lord Mansfield began to
whisper with serj. Davy, who had been out of
court and returned, with the Attorney General,
^ith Mr. Wallace, and the other crown lawyers.
In the space of a quarter of an hour he sent
three times to the jury to know if they were
not agreed in their verdict. He said he would
not sit longer than four, if the other business of
the Court should be over. The jury not re-
tnrning, lord Mansfield proposed to Mr. Lee
that he should sign an agreement with Mr.
Attorney General, that the jury might give
their verdict to lord Blansfield privately at lord
Mansfield's house. After some time and per-
suasion from lord Mansfield, Mr. Lee con-
tented, and signed such agreement; after
which lord Mansfield pulled off his hat, and
said, Mr. Lee, you have done right to consent.
Lord Mansfield then adjourned the Court, and
retired. The jury continued undetermined till
near ten at night, when they agreed upon their
▼enlict, and went in hackney coaches from
Guildhall to lord Mansfield's house in Blooms-
bury-squarpt ami gave their verdict in these
words : ** Guilty of printing and publishiujg
only."

Lord Mansfield stood at his parlour door,
and made the jury give their verdict in his hall
where the footmen were, and when they had
given it, he withdrew, without saying a word.

Jufy 3, 1770.
The King against Henry Sampson Woodfall.

Since the verdict ol' the jury in this cause,
two motions had been made, which were this
day hroufifht to receive the decision of the
Court. The first was upon the part of tbe
crown, Why the verdict should not be entered
up accordinsr to the legal import of the words*;
the other. Why the defendant should not be
discharged from any judgment on this verdict.

Mr. Serjeant Olynnt ot counsel with tbe de-

* The motion was thus worded at the spe-
cial direction of lord Mansfield ; who in theae
oauses is always of counsel with the crown.— >
fand. Mui,

fendant, first obaerved sligbtlj vpta thealavd
motion fiir amendnaent, that was nMle on lbs
side of the crown, which, if carrisd, wtfM ¥Si
require itself to be amended, w tehire lbs
matter as mocfa at large as ever ; lasce the
clerk must be thereby redoced to miakc anttber
applicaiion to the Conrt, to be inibrmcd, HhKt
that legal import is : after thb be preceedad k
tbe following manner, taldng ep the aifcuitat
upon both the motions united :

My lords ; this is an inlmnatioB for m scfi^
tlous printing and pnblisfaing of ft neper signed
Junius: the jury have fbued Mr. WeedU
guilty of printing and publishing only.

1. I shall first contend that thta ia e» as^
quittal. The charge brought belbre the jorfi
is grounded upon the defendant*a evil and ssiii>
tious design in publishing. Tbe jury iodths
publishing only. This then is not oottifcthg
him of the charge; which is, the eedilisei
intention. It is first necessary to prove epsl
the trial, the fiict of publieation ; next tbe CM-
struction put upon the paper in tbe iafai«.
tion. These are the points which ere la l|
given in charge to the jury ; and the jtn
must be convinced of both. By tbe gtinii
word of * guilty,' the jury find the wbsia
charge to be true. They have not does ss^
They have found the fact of publieation mac-
ly ; but they have added negative wofdi, H
exclude every thing else. To what the jsiy
do not say, there is by law a negative.* M
here tbe jury have themselves taken care, list
their silence shall not be misinterpreted. Hal
they been silent, whether the paper vro aM
or not, and not referred it to tbe opinion of ths
Court, their silence must have acquitted ; bit
here they have used the word * only,' ex-
pressly to exclude every idea of a crime.

If juries may be justly said to negative every
thing they do not find, in a question of civil
property, much more must they be said to do
so now, where the criminal motive makes the
offence they have in charge. I do not nr,
that a stnci and literal proof must be brougil
of every part of the information ; but I dosaj,
that crmiinal intention is the essence of a crimen
and must enter into every idea of gnilt. Of
this criminal intention tbe jury are the judgss;
and if they exclude that, the defendant is ac-
quitted.

To support a general verdict of guilty^ it
must appear that the iury believed the paper
libellous. Whether libellous or not depeadi
only upon the construction put in the infonna*
tion. This construction they have excluded;
therefore, though they have not said in n
many words, that the paper is not a libel, tbey
have negatived the libelling construction, sai
said as much, in conseijuence by legal iofe-
rence. Where the subject-matter bmre tbt
jury are not mere legal words, or words tf
legal import, it is, in my opinion, tbe previoek

* So determined by all the jndgea hi iki
Exchequer-chamber, Withers v. lora Jcfwy^
I/md. Mus,

n Information Jor intHUhiHg a LtbeL A. D. 1770.

[f06

Va jni7 to fiml, "htther they nre criminal or
aoi. Juriei are juilges botb of law ami TacI ;
I niHu, aa filr ai the lormer ii tnfaWed in the
taller. The jury lliererore had a right to con-
•nler lh« |ia|ier cnnrged ai a htiel hefure them.
Tbejrmiifht Uk« it upon thmiif ihey ptewcil,
or tbey mi^ht resort to the jmlgoi for aJvice.
H*rB they have, hy their word of exeluiion,
gumuftrai to determine, ihat there n no
([wilt in the paper ; whether they hate deier-
raiined *tati^ ur right ii anolher (jiieslioD.

I'hey may, an doubt, determine (generally ;
and witere tliej to determine airainsi the clear
pTonfnf the fact, and letter of the kw, (botUuf
which constitute the crime) lliey determine at
th< {leril of their conic^ience. Yet ■ niatler
■B»y be clearly libelloua, snd a mm nnt Incur
([attl by the mere |ioMicatioD. Ai in the cate
«f a fVlendly admoniiion from a father upon a
■iipiK»K<l miuonduet of lilt son ; or of giving

9 tliai might be mentioned, Here the in-
tenliiHi becomes material, and properly loquir-
able by 3 jury; though thiH is not Ga[iab1e
of direct proof, it is, honever. to he dis-
cetereil by infereace, of Hliicli the jury are
lh«t jiiilgea. '

'i. Upnii the second head, I am to conterxt,
that if the rerdict is uncertain or insu(Rcii;(ii,
ibtrc muil be n new Jury aiimmoni-d to try the
canw afmh. If I am not authorised to say,
that the TerdicI amoiiniK to an acquittnl, I am
•or*, they are aa little aulliorised on the olher
nda to any, that it amounia to a cnnvicljon. If
iha (bmier interpretation i« not iiljsl'actory, the
latter (.'erlainly cannot be «o. If aome other
aenae i« given to the word 'only' than what
I bate pui u|Hinit, the whole became doubt
tnil Bmhif^iiy ; and a new trial most be had
by anotjier jury. This cannot be taken olher-
wbe than ns a general verdict ; and in {{eneral
Tcrdiotfl, nolhliig in lel> to inference or Intend-
nwot.* >■ You niunt have the nnderstandini;
oT another man, hear wlih other'i ear*, and
tec Willi anolher's eyes, before you can know
what a jury meant. n|iun what they have not
cxiireaaed." There i» in the bonki the plainest
caae. wbere a direet iiilerence must unavotda-
y lie made from the findinc of the Jury ; aoil
it (bat not being expressed, the rerdict was
~~'yi a« iniafficient. I

I Jory had found the damages to the

", ia the dt'lt-'Klnnl'^ nni keeping; hia

id yet, nut tiaring liiund directly

le such promise, the retdict iv^is act

If thvnwe suppuac llie other tide ritjht

J, that the jury ha*e found nufGcienlty

I dtCffuilt of the dofendani t>efnre the

" '1 at least siying t», wiihoul know-

■ Jury mrnni, ai to the cnnMruc-

, « the libel. Let them model it ai

I, they caimnl make it n j(eneral ver-

;ai|iy, witliout letting their senac upon

the construction unknonn, nliich miitl necet*
ily be Included in erery verdict of gnilly.
But let what arifuments there will be made
for this new-modelling the verdirl of the Jury,
there is one superior to all the rest against iI ;
which is, that the defendant would be thereby
precluded from taking the sense of a superior
coml of review upon llie verdict, as at present
farmed . If the defendaut is fuund guilty, (t]iy
is not the Judtjraeut entered as it is found, and
the sentence of the Court passed upon himf
It will then appear, by writ of error to the
Lords, what this verdict was, bv which he is
said to be convicted. But if thia new-model-
liug takes plare, he will tw fur e»er deprivtMl nf
this advantage*; which indeed i^ the only
reason I can suggest to myself for the attempt
that is made to ohlain it. Por if it Is a general
verdict of guilty, 1 suy again, it need nut be
eotered otherwise than it ii found. No case
can be produced, uhel'e the words of a general
verdict have been altered I0 make room for
other wonls. They would llid<^eil be wonU
different from the n *

;rdici o'

11 1 J :

■iction. Jour
lordship will not alter it :o make it so ; and if
it is, let it, as it must, be entered in the wofdt
wherein it is found.

Mr. Let on the same side. It \s an absurd
and impossible idea, that the Jury should con*
vIct thai Dian of a libel, whom iliey meant (g
acquit of a crime ; ami this meaning is plainly
demonstrated by the word of cKclu^inn, which
they have introduced into itieir verdiol. Tlie
Jury will never be said tu hiive liinnd stieh a
verdici, as shews their Inleiition to Hnd him
guilty of the cbar^e laid in the information.
They meant, no doubt, lo have found him the,
printer and publisher of the iiaper, as it ap-
(leared in the Public AdverliM-r, and nut as
coupled with all those heavy charge* and iu-
nuendoeii. as deecrilitd in the informalion.
There are strong uases >a the law 10 prove, that
a partial linding is insufScient. Whereauan
was chained iviiti au intrusion into a house and
lands, and the jury only found the intrusion
into the lands, ibe verdici was declared to be
wholly void. t Hut In Ibis case, let the finding
of the Jury be what iLwill, it is impossible for
the Court lo alter it; for it is moatdecialiely
laid down, in books uf the tfii^atesl aulhoriiy,
that the Court c:kiinot amend a genieral verdict
in a criminal mailer. .

Oa the Part of the Caoww.

Solicitor Central (Mr, Thurlow). I know
no rule, or case in luw, by which Ihe silence of

■ Because the alteration 1
upon the record ; and by some
tiitinn in the jurisprudence ot thU c»unu-y, iiu
court of review can take notice of the miscon-
duct of Judges in inatuug such slterailona. —

Load. Mhii. Tliis. I suppose, alluih!* m

lord Mansfield's directing the in forms lions
against Wilkes lu lie amended, see tol. 19, p.
1075. t * l.eona[il, 396.

flOi]

10 GEORGE IIL

« jory opoD any fad, ibat abould be made «
partof tbeir teniictt mmt be coostnied toini*
ply tbe acquittal of any defeodaot. Oo the
cootrary , tbere ia aotbority io tbe law a|ioo tbe
▼cry eaae of a libd, where a partial fiooio^ of
tbe jory was held saffidcfit. A charge was
brought for the wrhio^, eollcdiog, aod priot-
isflT a nomber of balbdtf, aod thmby foraiog
a Gbel open the king. The jury foood the de-
fadaot gailty ouk of tbe prioting ; and thb
verdict waa auowed to be good opoo the iaioe.
Wbereser the jory shall hate omiUed a matter
of fact, tbe Coort will oot intend that fact;
neither will they eondode the defendant inno-
cent, because the iory have oot said that he ia
ao; butthey will then order a new jury to come
aod try the caoae again.

If It is said that the jory meant to ezclode
m eoDclnsioo of law, that were moostroos. To
■ay that the jory fonnd the fact of puUishing
the paper, aa charged in the infbnnatioii, but
that they denied the interpretation of the law
upon it, were bringing them wholly out of their
prorinee; fortheyareonlyjodgesof fitct, and
with the bw they have noUung to do. If the
jory are said to baTe firand toe publication of
some other paper than that as charged in the
information, it is saying that they Mve found
a fact, which they are not charged to enquire
into. This were making them to have done
more absurdly than they have ; and what they
have manifestly uo right to do. Their words
must necessarily lie referred to aomething ; but
why substitute a subject out of tbe iofonnation ?
For if they have found that the defendant only
printed and published the libel charged in the
raformatioD, they have found what will ever be
enough to convict. The jory cannot prevent
tbe judgment of law from passing upon the
facts, which roeo are found to have committed.

The jury are to inquire into a fact as cbarffed
in tbe ioformation ; and the short answer they
give in the words guilty or not guilty, must lie
referred to that partictilar charge ; otherwise
they say nothing.

It is oot necessary for me to contend, that
any facts shall be supplied by ioDuendo in the
Itndiog of a jury ; but if the lury meant to ex-
clude a conclusion of law, I dare say your lord-
ships will not attend to it; for when a jury has
found sufficient facts to support some verdict
in the cause, they cannot go further, and find
a wrong conclusion of law. When the jury
have found sufficient matter of fact, your lonf-
ahips will supply the matter of law ; as was
determined in tbe case of lord Paget ; where,
in the question of a fraudulent conveyance, the
jory having found sufficient special matter, the
Court inferred tbe conclusion of law, that the
conveyance was fraudulent, though the jury
had not expressly found the fraud.* However,
Sn this case, the jury have expressly found
some guilt ; aod it is now become the province
•f this court, to say what that guilt amounts to.

Mr. Morton, The subject for the jury to

* Moore, 194. Dyer, 369.

The Case c/H. S. JFoodfidl^ [908

haveeoquiied into, was tbe application of this
fibel to tbe person, opoo whom it is charged ia
tbe informatioB to have been ooade. f confiesi
that the matter here charged woaU not be fi«
belloiia, if it affected any body else than tbs
king. The jury have foQod the fad of pdnt-
inr and pobltshing only ; and that waa tbe
only thing they had to find. For whal ia tbe
crime charged ? It is the printing and pobUi*
ing tbe matter, and thinga oootained in the ia*
formatioo. Upon which tbe jory aeem to as
to have aaid, tiiat he ia only gnilty of prialiBg
and jmUishing the paper cna^ged in tbe inlbr-
mation (for that ia all we have to add); aad
this is the same as if they fbond him goikf
geoerally.

Mr. WaUace, The verdict is full, aad it-
^oirca no intendment. The charge ia for prill-
ing and pnbGshing a libel ; the defettdaal says
he is not goihy of tbe charge: the jaiy. boaf
asked, tl^y say he ia guilty ; that ia, od^ «i
printing and publishing; which is the mm
thing as finding him guilty fieoerally.

It'woidd have been material if the jiiiy hid
excluded in this verdict the allusioos naadafiav
tbe paper in question to the libel in the iijbr*
motion. As to the obfoetioo, that thcty have
not found tbe intentkNi, that will avail as fidls
now aa It did before in the case of Uie ESmg
and Beare.* It was objected there also^ tbil
the jury had only found part of tlie cbanfy
and that so much as they found did not inni
any illegal act ; for that there are cases ii
which it may be lawful to write a libel, as Ik
a clerk drawing ao indictment, or a stodmt
taking notes in court: but the Chief Jwtica
said, their finding such a fact in the case of a
information must necessarily infer a crime.

Mr. Dunning. Verdicts are not to be ci*
tered in any case io the precise words tbe jaiy
give them ; nor are th^ so. Something M
always to be added. Had the word * oalf*
been omitted, there is no doubt the verdict is
this case would have been competent ; for tbe
clerk would have added, * tbe matters charged
in the information.' Let those words beitiB
added, and the insertion of the word * only' wiS
make no difference.

All tbe books aeree, that the jury may, n
these instances, take the law and fkct togetbefi
and give a general verdict. This I know bM
beendisput^; but whether disputable or B«t|
is snother matter. However it has not vet
been insisted, that iuries ought to take nil
upon them ; nor will I intimate my own opi-
nion upon it.

In tnis case at least the jory have not tikii
upon them to decide the law. They have sai^
that the defendant is guilty of printing sol
publishing a certain paper ; but whether tbnt
IS any guilt in that, or what degree of ffA
they do not chuse to determine ; they Icsit

~ 1 I _ ■L__«L_^ ^^

* See this case considered much at laifi it
* Another Letter to Mr. Almon.' The cass i|
reported in Lord Raymond, Carthew. If Mli
Saik.

1 liifvrmation for publishing it Libel. A. D. 1770-

[91(1

Am to olbcn ; I'ur ibc'ir own part, they lieg to
b« «xcuwd. It being tbeo at beat b milter oC
diipute, wbelbvr llie jury slioulil d«cide upon
tbc law or iioi, and u lliey baie nul ilone id
«s)intaly bvre, why nhould ibey, liy infcTence,
be cvBcluded lo bate done id, in delennining
die pBjieT not lo be h lih«), upon ibose pcriis to
wbitb Ibey will be Ibereby »ubjecle<l.

A* l» the objection, ibm Ibe alteration will
not appear upon the record, whrti removed by
etrur iola aootber court ; this k"^* fo Imther
than in eT«ry olher case, when ibe court or
derk add wurda lo tbe general finding of juries.
Betidei, thii is a mstlrr of fact, wRelber tbe
jury have lound (be defendaiit H^uilly, or not ;
and no niatler of fad i» «iibject tu any rerisal
by error. Upon Ibe whole, 1 am sBiiafled, that
Ibe meaning of the jury wai to find (be faci;
and whether bbel or not, lo lea?e lo the deter-
mination of ibe Court.

Mr. Walker. As lo tbe objection, that the
)tiry hare nol found ihe intenlinn, it ia mini-
t««, that if Ihc jury find llie facl, they must
Arid the design with which it ii done; for ibe
dtfeadani i« a free a^enl, and therefore an-
iwcrabte fur the legal consequencei of his own
act.

Mr. Serjeant Glynn in reply. It aeeina lu
be allowed by all Ihe counsel for the prowcu-
tioo, that the Tcrdici, a« il slands at preteni,
rc^nirei mine klud of amendment ; witboiil
t*hkh no judgment can lie giren upon it. I
beg leave lo lay, if such words were to be add-
rd, ai Ihe gejiileioen on the other side would
with to anoex In the wordi found, auch addi-
liOB would flatly contradict Ibe obiiont spirit

■Balie III

■Tici'

^*ea apon

i such a jumble of cool rad id ion
hat no judgment could pouihly
1. Mr. Dunning says,

u the n

a of

tbe jury, williout adding aomethiog.
let* it: but what is that sonielhing, and who
inakn tbe addition i To tbe bare words ■ guilty'
or * uol guiliy' is added, ' of the matters and
* tbinn chap,{ed in the information' in such
' li wurda as paraphrase ihe clear indispiit-
ktdiiigofihejnry, without, inibesnialt-
'~~'>, impaitiog, amplifying, or altering
This entry or addition is made by
trit ; and inch an addition, should the
legkct to make il, the Court will aFter-
Hpply, as a mere clerical omission. But

ibtMl oroitiion of the jury. When ihe jury
-— nf irt a ci)mmon verdict, the clerk eotera it
iti<^ common form; but lh« clerk has no
jiit lo expunge, or eras*, or alter tbe words
'•• Ltie jury, when ihey hare nol found ibem io
■he cwntnon way ; and I affirm, thai Ihe Court
ha* no more power lo supply such an oinisslno
of Ihe jury Itian tbe clerk. The Trnlict of the

I is uul at all allerail or impeached by sup-
t clerical defects; but iu ibla case, Ibe
bftlMJary, not of ihecletk, Ibe verdid
llTMiliI be maiarially apd menlially sf-

fecled and changed by the alteration proposed
to be made by the Court.

It has been said too, that the jury meant to
find the fact specially, or to bring In a special
terdid, but is it ■ fair inference from lh« %vorda
that they meantto do so?] Il is welt kiinwo,
that in a special renlict all the fads must bo
found, ami il must conclude with desiring Ibe
advice and opinion of Ihe Court upnn the wTioIe :
is this Terdid so circumstanced? Do thejurjr
here ask any iguestion of the Court, or cra*a
its assistance lo guide Ihrm ?* But it it were •
special vrrdict, llie Court could only determine
upon what was expressly found, and nol upon
inlendmeuls and cooslrudjooa of Ihcir own
raising. Howerer, we bpg leave lo inaisi Ibal
this was not meant ai a general rerdid, and
thnlthe jury understood it lo be a verdict of ac-
quittal ; for, in a general verdict, they decida
upon Ibe whole of Ihe case, tmd upou wbal
they are silent, they acquit Ihe defendant ; bj
saying nolbtug of the paper, therefore, the;
fiod il no libel. Were I lo admit Ihe crimina-
tily of tbe paper lo be a question of law, it it
surely such a question as is comprised in lb*
issue which they must necessanly take into
Ibeir consiileralion when ibcy give a general
verdict. Whatever they have not decided upon,
tbey have certainly tiee;alived. Had ihey meant
lu ease their own minds as to tbe law, ihej
coutd have done it in nu other way, Ihan bj
finding specially. This is tbe tame case ai
thai of Elizabeth CanniDg.f and of Penn and
Head. J Tjiere thejury used the word ' guilly,'
and yet excluded the crime.§ Let us suppose,
li>r argument sake, that the jury had Ihnnght,
there was some degree of guilt in w]|al they
said, and yet negatived all the crime by some
■ubscquenl word : the verilict would then hare
been conlradiclory and repugnant lo itself, and
there must have been a new trial. Printing
and publishing are not the only ibiogs gi«en iu

charge to thejury; Ihe cf" ' ■ — " '■'■"

wiae in their charge ; ' '
' only,' they have e

The (Atunsel for the crou n have confounded
the easel of general wilh those of spectat ver •
diets. Mackennie's case was a special verdict.
The conclurou ilierr, that Ibe blow was liHo-
ni'ihs, was apparent frotu Ihe liiclt, which
were (bund. The case of ihe King and Beare
was very distinguishable from the present ; nnr
is there uny case, wiierc. iu a general verdict.

* Non tali Biixilio. Sjind. Mui.

f See vol. 19, p. 669. J Vol. 6, p. gfi3.

§ Mee, also, Ibe duke of Newcastle's ver-
dict in Ihe ductless of KingMOn'a Case, p. 6SS,
of tbia Volume. In a trial for forzery just
now bad bclbre Itlr. Baron Wood, at York,
HJummcr Assizes ItllS, the jury at firvtfirDiigbl
in the verdict " Goilty of uttering the lorged
n«in, but without knowing Ibein lo be forg^."
As to " guilly of publishing only," %ec in thia
Culleclioo llie great Case of Ibe dean of St.
Asapb, at »alop, *.b, 1704.

yil] lOGIiOKUE ni.

Ilie jury can be suppoited la refer any mftltere
to ihe Court. Tliey Ikts found, bs llieir ge-
neral veritict, ihat tbe defendant is guilty of
nollibg more than of {irioting and publisbing;
and by llie ivord ■ only,' applied tu these acts,
ihey bave qualiflec< and re^ti-ained that lue of
tbe word 'guilty.' They liavf! fnund I lie de-
fendant Kuiliy only of a part of the charge ;
and for Ine additiou or alteration which ire now
wanted lo be made In ihc Guiling, the case he-
coiiies quite new and singular; because there
is nn instance of a verdict having been entered
contrary to the finding of ajury, excepting in
mere clerical mistakes. To say that the entry
ought to be guilty generally, because, if the

t'liry had not lo intended, Ibey would have
raught in their terdict Not Guilty, would be
at beat, putting a sense upon doubtful words,
which, il any explaualion was necessary, ought
to have been ex^leineii at tbe lime ihe verJir.t
nan ^Ten ; but it comes too late to be admitted
pow. IfaiueenmgrouBibe put by the Court
noon these words, tbe most ubvioua one is lliftt
pFacquittal. If we are to go out of the words'

The Case qf H. S. Wood/aU, t^Mi

tioo of the inuendoes is not deoiei] ; only tl

pFacquittal.
fori

if'tli

t to tlie affidai

new triul. But if ihs verdict appears ever so
unmeauing lo your lordships, you cannot now
aniend il, heriause you have nothing to amend
it by ; as has sometimes been done by notes
taken at the trial, lo correct the misprision of
Ihe clerk. Nor can you now give a conlra-
diclion to the Jury, by saying they meant lo
find the whole, when they declare tbey mean
somethiog short of il. If it is a good and suffi-
cient verdict, it need not to be altered at ail ; if
there is any thing more than clerical defects in
it, it ought not to he altered. In the one case
We are entitled to an acquittal ; in the other, lo

Lord Maatjicld. Tliongh the Court will not
yet determine iihether llie affidavit of any of
Uiejury may be read in this cause, yel I have
permilled one lo be read a little by way of
stating It;* and I there find, that the appiica-

■ This was the affidavit of William Sibley,
baker. London, Mui. Upon this passage uf
lord Mansfield's judgment, the auihorof ' Ano.
llier Lietter to Mr. Almon,' pp, 8i el Kq. ii
Tery severe; and in another place {\t. 61), lie
thus writes concern iug the atSdavitsof jury.

" The periniasion to a jury to rectify or alter
Iheir own finding, or to declare agsmst il by
affidavit, ■tUr Ihey have once been at large and
mixed with ibe world, would be of the most
J it has rarely been
Id be granteil : the ids
is Dovel, and conlrury to the fundamenlsl prin
oiples both of law and pnlicy. And a lal
Iraosaction forces me to add farther tlie appli
cation to Jurors, alter being discharged, to hear
privately and tzpartt olher evidence, and tn
make Btfidavils in consequence thereof, eithet
loallerlhe whojeor any pari of their verdivt|

been very material ; with tbe oilier 11
nothing lo do. In that cose, there w
> proof to them of the papirr, as chained 3
the information. But if Ihe jury find, that 1^

sorrow for having given it, is infamous, and
lite greatest inlet tu iniquity, corruption, per-
jury and injustice, (hat can be devised; ud
therefore those who make such applicaliooa,
when discovered, should be prosecuted at ttit
public expence, fined sail brandi.-d for ever.
Every practice of tliia sort tends to lessen tlic
force and effect of the public judicature of |bt
country, and <wuuieracts the guanis itiili
which the law, for wise reasons, has '
juries, by having T
after being sworn,
milled lo speak to them, lest same papular Hi
or external influence, some cLndeatine biuj||f
partial representation, or intreaty should li'~
place. VVIienever any thing ol the kindl
in tact happened, for want of tbe baibffiilt
parties' constant observation, it has, if madeM
|>ear, been deemed to contaminate their vc
so as lo set il aside. All tbe jurors s _

that nothing bad paned relative to tbe csMi I
would not uphold it. Those nl
private examination, especially uf one side, alter
a public trial had, in order to stagger a JDiy.
and to render them dissatisfied with their ver-
dict, act in the grossest definnce uf the lasr,
and with the most auilacious contetDpt of th'
Court thuy intend to afied or influence by it-
It is embracery and tatnperinu: wiib jurors in
order to defeat their own verdict. Even il"
after the jury be sworn and gone from Ihe bar,
they seud lir a witness tu repeat his evidnire
that he gave openly in court, who does it ic
curdingly, and this appear by examination ip
court, and indorsed upon the record, or postca,
it will avoid the verdict."

See as to affidavits of jurymen vol. 19, pp-
069, (if 5,684, <f Iff.

In Ihe Case of Edmund Thirkell, Tna-
b Geo. S. where Ihe defendant had been con-
victed of a misdemeanor, and aflerwards ei||li<
of ihe Jury signeil a paper in his favour, iutj-
raating their disapprobation of the veriM ]
which they Iheiaiielves had given, lord SI
field, and VVilmot, Just, concurred in nprOB* 1
ing great dislike of such represeolauons m~*'
by Jurymen after ihe lime of delireril^t ll
verdict. Lord Mansfield said, *■ Ii aughlil|
of very l»d consequence to listen lo aoch M^
sequent represenlations, coni
had before found upon llieir o
might be obtained by impropci •
subsequently made to them." Aiu
Wilmot thought ihey ought U be loUH; '
regarded. 3 Burr. 1696.

For more coocerniiig jurymeii'a affidlA I
see Ihe cases cited in the Note taHal««.Cs** |
1 Strange, Cl^. Mr. Nolan's editioo.

rarv l»wh«l
oalhs, and «

[914

they (iimI any fact of publication, they mast
find, not the simple fact of publishing that
Public Advertiser, sold at the defendaot'a
bouse, but that ?ery libel charged in the io-
formation. *
The Court will advise.

1^13] on an In/brmaiionjbr publishing a LibeL A. D. 1770.

ddefMhrnl poblished at all, they find the paper,
as obarged in the information, for that is their
on\j CBqoiry. 1 take it from the affidavit,
vrbicfa bat Men stated, that it does not appear,
vrbether the jury meant to say, that the ps|>er
b BO libel ; if tney had the least doubt, wlie-
tlier tiie innuendoes were properly supplied,
there should be a new trial. I did not leave it
Is the jary, whether the paiier was innocent or
feel. 1 never do. 1 summed up to them, as I
•Hviys have done in similar cases, that, if
Ibey were not satisfied of the fact of publica-
Sm, or had a doubt of the application of any
of the words in the information to the blanks in
Ae letter, they must acquit the defendant.
But I told them also, that whether the paper
1^ oriminal or innocent, was to them a sub-
jset of indifference ; because, if innocent, jn(ls>^.
iMort would be arrested in this court. Here
Ae jury did not mean to find the mulice of the
Icmlant, because it was not within their en-
quiry ; nor did tbey mean to exclude it, be •
mose it was not within their power to exclude i
t Ival deduction.*

laere may be something of a distinction in
tile books about amending a verdict in civil
iBd in a criminal case. But it is a mistake ;
iMi there is nothing in it. In the case of Gib-
isn for forgery, all the judt^es were of opinion,
tint where the officer had drawn up the verdict
Motrary to the finding of the jury, it might be
WMDded.f There is a case of this sort in the
Tear books, as early as the 3rd of Richard 3,
Ifbrget tbe page, as 1 speak only from the
iMSDory of my reading. This is the only way
if atiering a verdict either in a criminal or a
^1 case. There is, indeed, a sound distinc-
ties, which holds in the pleadings ; for those
Ciiroot be amended in criminal matters.
^ Whatever may be the inclination of my opi-
ftHM in this case, it is too late to have any ef-
ftets from it in this term :|: ; therefore let it
Miiid over to the next.

A$ion, Just. The jury are elected, tried,
iad sworn, to determine concerning the mat-
ttfi contained in the informations, therefore if

* '*8uch kind of reasoning in an answer
Woold, as my lord Mansfield knows, be called,
in the Court of Chancery, fencing with the
fbestion. It it answering with a reference to
iMther thing on the truth and falshood of
vbieli its own must respectively depend, and
ttetefiire is deemed no answer at all." Ano-
ther Letter to Mr. Almon, p. 63.

f This was a special verdict, and only made
^^eeable to the fact.— Zonrf. Mut,

X This might be so, if his lordship's opinion
iraa against tbe defendant ; not so, if other-
irise ; therefore if lord Mansfield had not al-
••arfy taiil enough, it were-sufficiently manifest
vhat that opinion ist as lord Mansfield re-
xired this verdict, he is indeed contending
i«re for his own credit as a judflfe. — Lond,

Kttf. The opinion which lord Mansfield

iMdly delivered did not verify the anticipation
f this note.

VOL. XX.

The following is Sir Jame$ Burrow* $ Report

iff this Case :

Rex versus WooDFALL.f

This cause first came before the Court, on
Friday SSnd June, 1770.

Mr. Lee then moved, on behalf of tbe de-
fendant, to stay tbe entering up judgment
against him, upon the verdict found in this
cause.

A cross-motion was made at the same tirne,
by the counsel for the crown, for the defendant
to sbew bause why the verdict should not be
entered according to the legal import of the
finding of the jury.

Jt was an information against the defendant,
by the Attorney General, for printing and pub*
lishing in the Polilic Advertiser, a seditious
libel signed Junius. Upon the trial, the jury
found him guilty of the printing and publish*
inir, only.

The Court granted rules to shew cause,
upon each ci' these two adver^te motions ; and
ordered them both to be brought on upon the
same day.

Accordingly, on Tuesday, 3d July, 1770,
cause was reciprocally shewn, on each.

Serjeant Glynn and Mr. Lee argued for tbe
defendant: Mr. Thurlow, (solicitor general,)
Mr. Morton, Mr. Wallace, Mr. Dunnmg, and
Mr. Walker, for the crown.

On the part of the defendant, it was insisted
that the verdkit, as found, did not amount to
find Mr. Woodfall guilty of the charge in the
information ; but rather to acquit him of it.
For, he is charged with printing and publish-
ing this as a libel, with a malicious and crimi-
nal intention : but the jury find him guilty of
printing and publishing, only. Whatever the
jury do not find implies a negative : but this
goes further ; it says expressly^ that they find
this, and this only.

A criminal motive goes to the construction
of the offence : a criminal intention is its es-
sence. And this the jury have negatived.

* See in ** Another Letter to Mr. Almon,'*
&c. p. 100, some observations u|>on this opi*
nion. The '' Card,*' No. 84, of the miscella-
neous letters of Junius, inserted in Mr. 6.
Woodfall's edition, vol. 3, p. 308, seems to be
addressed to Mr. Justice Aston.

f I have seen, in the hondwritingof the late
Mr. Serjeant Hill, the following note to thie
case of Woodfbll : *' It is well known lord
Mansfield went great lengths in support of \\\n
own opinion always, and in this point particiw
larly, and indeed all others that lessen the
rights of juriet.*'— Sec, also, pp. 414^445,

3N

015J

10 GEOnGE III.

The Case ofH. S. Woodfali,

[916

They are jad^fes of law and fact, at far as
law is in?olved m fact. They may take this
upon them : and here they have done so.
They meant to acquit him of all criminal in-
tention : and one of the jurymen has made an
affidavit, ** That he meant to acquit him of all
criminal construction : and if he had thought
that that could not have been thns done, he
would have acquitted him." Therefore this
cannot be considered as a verdict of conviction
by twelve jurymen. A verdict ought to be
found clearly, fully, and distinctly: it cannot
be supplied by inference; neither can it be
amended by any notes of the associate, in a
criminal case. 1 Salk. 53. Rex ? . Bold. 1
Salk. 47. Rex v. Reate.

They aUo cited Cro. Jac. 310. Cook t.
Laneday ; and Yelverton, 106 ; and Drury ▼.
Dennis*; 2 ftolle's . Abridgment, 693. Title,
'* Verdict," letter S, pi. 5, between Bau^li and
Philips, referred to by lord chief justice
Vaughan in the case of Rowe ▼. Huntington,
Vaughan, 75, 76. who there says, "That
finding the point in issue, by way of argument,
in a general verdict, is never permitted ;. not
though the argument be necessary and conclu-
sive." There can be no supply by intendment,
in any case ; much less in the present, where
it is impossible to supply the verdict by intend-
ment, because nobody can know what the jury
did intend, or bv what rule, or upon what prin-
ciple they decided ; unless affidavits from the
jurvmen were allowed to be read. Another
authority that they cited, was the case of Shel-
ley V. Alsop, in Yelverton, 77, 78, which was
a finding of the assumpsit by foreign implica-
tion ; ** which is not good, (as it is there said)
upon any general issue :" and it is there laid
down, ** that the jury ought to give their ver-
dict precisely according to their charge."

They insisted, that the verdict oui:ht to re-
main in the words of the jury ; without ex*
pun<;ing any of their words, or substituting
others in their places, or controlling them
under any pretence of legal construction.
They ought to be left as they stand ; that the
defendant may have the benefit of a writ of
error to the House of Lords, if the opinion of
this Court should be against him. >

They hoped, however, that the present find-
ing Mould be esteemed by the Court to amount
to an acquittal of the defendant.

But, if the Court should not go so far as to
hold it tantamount to an acquittal, there ought,
at least, to he a Venire facias de novo. It cer-
tainly is nut a conviction : and if it be not an
acquittal, it can he no more than an imperfect
verdict. And if a verdict be imperfect, there
must be a Venire facias de no\o. But we
hope for his discharge, as upon a verdict of not
j^uilty.

On the part of the prosecution, it was argued
that the present verdict could not be considered
as a verdict of not guilty. It positively and
explicitly finds him guilty of the printing and
publishing : and it does not import any negation
•f bis guilti ai to the rest. Tbs word " only"

does not import the exclusion of any thing bat
facts : it cannot exclude conclusion of law.

It is certain that a verdict cannot be amended
in matters of fact : but it may be perfected in
point of form. The officer takes bis Dots
short : but the necessary finishing of the sen*
tence may be supplied. The substance and
matter of this issue is sufficiently found: tbs
Court may order it into a proper form. Tbt
hiw, here in^klies the intention. The printwg
and publishing was all that the jury were to
enquire about. This verdict is not imperfect ^
nor is there any need of supplying sbt thiag
by intendment. The intention must be col-
lected from the libel itself. The intention is
the gist of the oflfence. The t erdict ought to
be entered according to the true meaning and
intention of the jury. Something is always to
be added to every verdict : the entry is never
in the very identical words used by the jary ;
which are always concise, and not full and
formal enough to stand supported against t
writ of error.

Whether a jury may or may not take arai
themselves to judge of matters of law, they
must at least do it at their peril. But hen
they have not done it at all : they have not de-
termined, that this paper is not libellous. 8s
that whether they may at their peril do it,sr
whether they may not, they have not ben
risked that peril. The import of tht'tr venlid
is a general finding of the facts, without ex«
pressing any sense of their own upon the law.

In the case of the King against Beere, rs«
ported in 12 Mod. 2t8. 2 Salk. 217. 1 Lofd
Rayro. 414. Carthew, 407, and Holt, 4S9,
the jury, as to the writing and collecting of tbt
libels only, find him guiity, prout in MicU'
mento supponitur : and as to all other ihiogi
charged in the indictment, prater scriplionim
et collcctionem^ they find him not guilty. Tin
charge was for cumjmsing, making, writing,
and collecting several scandalous, faUe and *^
ditious libels. The finding tvas, '* UunaJ
scriptionem et collectionem libellorum in indio'
tamento mentionat' tantuu),quod defeodeastfst
culpahilis ; et quoa<l totum residuum in eodea
indiclamento content*, quod defendens non est
inde culpahilis.'' It was hoiden, *' That ibi
bare writing and collecting the lil>ellous matter
was criminal ;" and " that the general finding
shall be taken to be criminal." And Tunoa
and Kokeby cited some cases to prove, ** That
the writing of a libel, without publisbiDg ^
was punishable by indictment.''

They also cited Moore, 194. Dyer, 362.
Hohart, 54. Moore, 808. 2 Lev. Ill, ai«Ji
to prove that tlie word '* only" mifi^bt be r^
jected, 2 Saunders, 380. Co. Lit. 227.

Serjeant Glynn replied ; enforcing ^
former argument, ajid denying that the cassw
Beere, or other cases now cited, were like tkl
present case.

Lord Mansfield, It is mocb too |ate in thji
term, for any thing to be further done u tki
cause, with any eBect, liei it stand over H
next term. Cut^ Aisi^

% an Information far puhlishing a Libel. A. D. 1770.

[918

Tuaday, Nov. SO, 1770.

nor

Tbiicomei before tlie Court upon tworules:
IIm first nbtajneJ hy the derenilsnt in stay
Ibe entering ii|i jmlgflnem on ilie verdict in
Ihi* cauw. The seironJ iJHsineil by the At-
torney General, thai the verdict inly be entarnt
•ecordiogln the legal iniiiort of the HiKting of
tbejnry. Tbelasl rule must, I'roni the nalureof
if, he fini diseuraeil, because the en>uD<l <>' Br-

KtnMit npnu the nther caonol he »eit]ed till
■ it (l>t|Kise(l uf. Upon thU rule it is iieces-
nry to npori th« trial.

Tbe proseculinn is an inrurmatinn aifajnsl
the itet'euilant, for printing and publishing' a
Ithetjii tlie I'liblic Arireriiser, gl^eJ Junius.
The tenor ul' which isiet out wilh proper a*er.
■nenls ns to the meaning ol' the libel, the aiib-
jwt matter, and the peraona concerning; which
■nil uC •rhnm itspeatca, uith inueniloei fithn^
up ail tile hiauks andlhc usual epithet*.

loaupport of the pruiecution, they proved
ly Nathaniel Crowder, that he bought the

Jiptr prodiiceil, anil Inelie more, from Col-
eiil, the delellilanl's publi^'her, in the defend-
■nl'a putilishiug-ronm, al the corner of Ivy-
line. TliBl henneaolien there, has uccaiional'ly
Keaihe printing-room, and has hail papera in the
litinting-riHini. They read the paper proilueed,
iiiJ Ihf len"r agreed wiib the inrurmalion.

flvorge Harris, register ol pamphlets anil
■ewipapera, pmverl, that the dereoilant by hiin-
•elr ami tervania paid the duty fur advcrtise-
nenti in tlie fnblic Advertiser ; tliat thederenil-
ani bad paid bimsell', auil allihe pay menu were
inbisaocoant. That the defendant has made
■he uanal affidavit, and has been allowed the
tliinii-dulyt'orsuchpn|iersaB were unsold. That
llie diiiiet f»r adveriikemenls in the |taper In
IWdion, were paid by the defendaul's servant,
■nil tlie receipt given on t he deleodant'a account.
William Lee, clerk to air John Fielding,
pravpd, that be ntleo carried ad vert mem en la tiir
the Public Advertiier, to tlie del'enilnnt'a, at the
ciTiieiority-lane. That he generally'piid ready
>iii>Dcy ; ibat he has neen money paid to the de-
'riHlinl Tor adrertiBcinents, and be had a receipt
'"'III tbedelendaut aligned by bim the &9lh of
*> vriiiber, for 33/. lor printing adverliiiemenla
ilii' Public Ad lertiser. Unthe pari ol'lbede-
■ "lunl iliey called no wit ii esses. His ciiuniel
.1' iledtosome urtheiniiendiiev, butlhev prio-
'-'^My applied to the jury tURci[uit the deiend-
iiii. I'rora the pai>er being ionoueut, or not liable
1° tlie epitbelii given it by the iulhrmalion ; or
*Hit (lie detendiintV intent in publishing did not
dt>erre the epithets in ihe^mtormatiun.

There was ou doubt but ihat the evidence, if
crnbtf'il, sfnounled to proof uf phniiu); and
)>utibsbinif ^y ■'■^ delendanl. Ther« any be
otfi where the fact proved aa a publication,
■"•j be juslilied or excused.

*<x>i : 1'uT a

naUi

puilly.(-aj

consider w be
apfilici

It no question of that kind aroti

Therelbre I directed the jiiry to

^r all the iniiendors, and alftba

. , natter and persons, Riadeliy th«

inlnrmation, were, in their Judgment, the trus

meaning of the naper. It'thev ihniight oiher-

wise, they should t

the liefeadau

but if

they airreed nith Ibe information, and believed
ihe evidence as to the publicalion, they should
find him piiilty. If the jury were obliged |a
find whether the paper was a libel, or whether
it was a libtl tusiich a debtee as to deserve the
ejrilhets given it by the intbnnalion, or lo re-
ijuire proof of Ibe express intent of the de-
fendant in printiiig and piihlivhinicff'J and uf
its being ii'alicioua to such a degree na to de-
serve the epithets given it by the infuriiiation —
then this direction was wrong.

In supiion of it, I told tbein, as 1 hatefrona
indispensible duly been obliged to tell everv
jury, upon every trial of this kind, to the S'oU
lowing effect: tliat whether the paper {mean-
ing as alleged by the inlormatiou) was in law a
bbfl, was a question of law (c) upon the face
of tlie record : (or after conviction, a defendanl
may move in arrest of judgment, if the paper
ia not a libel. That all the epithets in the in-
'e formal infereuces of law from

formatiou n

to be somewhat obscure.

, , that they might either re-

quire such proof of the publisher's intent, or
collect it by inference from the mere fact of
inihlicalion, as they should think til ; bul Ibat
certainly ihey ought to find it.

(c) To theae words Mr. SerJ. Hill, in hia
copy uf Hurroi*, had wrilten the lollowinenute,
(See the last edition published by Messrt.
Clarke.)

■■ It is a question of icurrilitj/ ; and bow can
that be a question of law ? By SI. Westm. Id.
13 Edw. I, c, 30. ■ the justice* sholl not coro-

Eel the jurors lo give a general verdict in assize,
ut. if they voluntarily wilt, lei the verdict be
admitted lub lao periculo.' Tliis statute, asa|t-
jiears In S lust. 435, extends to all aciiuni and
all issues, and also tu pleas uf the vtown hi ibe
king's auit.

" In the Trial of the Heven Bishops, thoDgh
the Court was divided in their opinion, whether
the petition, for preNenting whiirh the defend-
ants were indicted, as fur making and publish-
ing a libel, did in law amount tu a libel, or not,
yet £qu. not] one of the four judges of the
King's Bench, except the Chief Justice, ex-
presily assertpil, that Ihiit point was a matter of
law, and tlierefore In he determined by the
Court, and not by the Jury ; and two of lh«
judges, VIZ. Hnlluway and Powell, left ii to the
jury as a in:itier to be determined by them, and
declared to them their reaioni lor thinking it
nut a libel. 8ee Foster SOI, V03, 10 Kt. Tr.
App. [56.] (qu. 19C,Oweu'» Case, see it in ibis
Colleciion vol. IS, p. 1«U3.) Holt's Itep. (>B3. i
Mod.'JU9. Dyct SOS. Lamb. Just. hb. I,c.
13, p. IIT, 17a. ed. 1583. SM<xl.t>K. Cx^,

15 GEORGE III. Trial <>fMaha RaJaA Nundoamar,

[924

556. The Trial of Maha Rajali Nundocomar,* Bahader, for For-
gery. At Calcutta, in the Province of Bengal ; 15 George
III. A. D. 1775. [Piibhshed by Authority of the Supreme
Court of Judicature in Bengal. London: Printed for T. Ca-
dell in the Strand, 1776.J

Junes, 1TT5.
At » Court of Oyer and Terminer, and Gaat
Delivery, holilen in aod tor llie I'ovrn of
Calculia, and Facinry of Fort William, in
Bengal, anil the iiimilk ihereor, anti the
Factories gubonlinate Iheieunlu, on the
3d day o( June, 1775.— Beliire the bon.
ISrELUAH Impei, knt. Chief Justice, Ro-
bert CuiiiiBERB, Stephen C£s*r Le.
MiiSTBE, and John HvDe, trtqn. JuBlices.

J called to the har, i

The Court desired Dr. Aodennn and Dr.
Williams 10 examine the priionvr, nhich tbej
did, and reported that he cumplained of haTior
been inil!s|iosed in the nitiht, but that he bsd
neither flux nor fever, aod was rery capable of
taking lijs trial ; wbereupoD he was called I*

The Prisoner being iofarmed uf hii right t*
challenge when the Jury came to be swan,
challenged the foliuiring gentlt-foen, from a
paper held io his hand : John Lewis, l¥illiiH
Atkinson, John Williams, William Dicksaa,
Richard Johnson, Joshua Nixon, Roherl Dv-

Wm. Han
der Macneil, J
Philip Coales.
The Counsel for tbe CroffD cballenged Si-

Bird, Charles Moore, Alent-
amea Lally, William BHggii

Tke KiNQ e. Hafaa Rajah N

The Prisoner being

arraigned, and the inilj<

■el tendered a plea to the jurisdiclioii t\f the

Court ; but the Chief Justice pointing out an

objection thereto, which neni both tu the mat.^

ter of fact and the lair .contained Ibereln, and

desiring the cnunsel to consider if be cnuld muel Slatham.

amend It, and lake lime for su doing, he, aflet ti r n i

1 . -. , , 1 • .■ .1. ° 1 . Ihe lollowmir Jurv W8S sworn ;

havmgcous.deted heobj.ctLon,thougbtpro,,e, I E,[„.ard Scott, * ^ John Fergu«»,

tow.lhdraH-lhej,lea; whereupon the pnsoDe. |t„,,^rt Macfadin, Arthur aX,

-leaded NotGuji.y:andl«,nga«ke,lhy,.ho™ Thomas Smith J.,hn cX

he would be tried ? he answered, By God snil , .- . ^, . „ii ■ \j„.. »> n- ' t^

M_- rrL J-, . I . J . I I .1 t.ilwaril £, lennirton, aamuel Tnucnel.

bis peers. The Court desired to know whet lei i„ i u it- -'i r i , i •

h. b'3..,pmiu,l..r.u,,Df.r«,ins.l,,.ord.J71''' """■''*■"''''. ^'"■'''S..l."l.™

Kml lK.co««»l.n..m.l,il,..i5.pri.om, I '°'l' %1""-™. . ..CUrl« W„|..,
log a mau of the first dignity in this king-
dom, ihoughl be shouhl be died by |ien|de iiF
equal rank with himself, agrefahly to ilie law | Mr. Willinm Cliamliers. the principal iattr'
ot England, which permits e»ery man to be preler, not beinij yd cume from lilsdrss, inJ
tried by hi« peers. The Court allied, « ho the > the two assisiaot interpreters, od eccoiiDl (T
Maha Rajali considered as his |>eer8i' |]ii ' iheir imperfect knoii ledi,'^> of English, btivf
ODunsel answered, he must leave that to the | deemed insufficient fur a trial no luni; at ibi)

Court.

Chief Justice. The trial can only be by
•uch persons as are by Ihe charter required to
form tlie jury. A peer of Ireland tried in Eng-
land would be tried by a common jury. The
clisrler directs, that in all criminal prosecu-
tions, the prisoner shnuhl be Iried by ihe inha-
bitants of tbe town of Calcutta, being British

It being late, the Court adjourned till ibe
■ezt moruing at seven o'clock.

Jane 9, 1775.
Tbe counsel for tbe prisoner informed the
Court, that the Maha Itajah had been ill '
tbe night, and bad now a flux and feter, whi
rendered him incapable ot taking his Irisl.

* These proceedings am amply dlscusspd in
the CasesofifOveruor Hastings and of Sir Elijah
Im)>e^, and in tbe Parliarueolary Uebatta re-
ajNGtiDg tboM Cue*.

peeled to he, .tlr. Alexandr
Hot, superintendant of Ihe Khalsa Ittcunls, a
gentleman emini'tilly skilled in Ihn PertiauaoJ
tlindostau languages, and Mr. UilliamJidi-
Bon, lately admiited an alturney of the cosrl,
who speaks the Hinilnslan tongue flueailj,
were reqiie!>te[l by the Court to iiuerpiel.

Tlie Counsel fur Ihe Prisoner desired lhitlb>
evidence mii;ht be interpreted to biro in i1>'
Hindoalan language, as il nas roost genrrsHj
underwood by the audience, and requested tlii>
ihe inrerpreter of tile Court might be eniptojt'
tur that purpose, and objected Io the inlerpft-
lalion of Mr. Elliot, as being connected wilt
persons whom the prisoner cou:iidered as bit
enemies.

Cltirf Jiatice. The principal inlerprster ^
the court is absent ; tbe gentlemen of ibe^i;
liHve heard tbe inlerprriation of the assiitaal
interpreters on other occasions. Uo you, gee*
llemi^n, ihink we shall be able to go tbiMfh
ihiscause, «iih the aasiitauc* of ihoM idUn
prcten only (

985]

at Calcutta^for Forgery*

A. D. 1775.

[9S0

Jury. We are aCire we shall not be«ble.

Chief Justice, It !S <i cruel iusinuatioD
•gainst the character of Mr. Elliot. His
Touth, just rising into life, his family, his
known abilities and honour, should have pro-
tected him from it.

[Mr. Elliot desired he mi|(;ht decline inter-
preting.]

Chief Justice, We must insist upon it, that
you interpret: yon should be above giving way
to the imputation : your skill in the languages,
and your candour, will show how little ground
there is for it.

Mr. Farrer, I hope Mr. Elliot does not
think the objection came from me ; it was sug-
gested to me.

Chief Justice, Who suggested it?

Mr. Farrer, J am not authorised to Dame
the person.

Chief Justice, It was improper to be made,
especially as the person who suggested, does
not authorise you to avow it.

Juri/, We all desire that Mr. Elliot, whose
character and abilities we all know, would be
•0 kind as to interpret.

Mr. Farrer, 1 desire on the part of the
prisoner, that Mr. Elliot would interpret.

Mr. Elliot and Mr. Jackson sworn to inter-
pret.

The jury being imnannelled, were charged
with the prisoner, and the clerk of the crown
read the Indictment as follows:

''TownofCal'\ I. To wit. The jurors
cutta^ and Fac- 1 for our lord the king, upon
tory of Fori IVil' ^ iUeir oath present. That
liam, in Bengal^ 1 Maha Hajah Nundocomar,
Bahader, late inhabitant of tlie town of Cal-
eotta, and a person subject to the jurisdiction
of the Supreme Court of Judicature at Fort
William, in Bengal, after the 29th day of June,
iotbe year of our Lord 1729, to wit, on the
15th day of January, 1770, in the 10th year
<^f tbe reign of otir sovereign lord George the
M^ king of Great Britain, at the town of Cal-
cutta aforesaid, with force and arms, feloni-
<Nisly did falsely make, forge, and counterfeit,
^od did cause and procure to be falsely made,
^rgeil, and counterfeited, a certain bond in the
I^eraian language, purporting to be sealed by
^pe Bollakey Doss with the seal or chop of
^iin the said Bollakey Doss, the tenor of which
W)Q<] jg ag follows [here the bond is written in
Persian] with an intent to defend the said
Bollakey Doss of the sum of 48,021 sicca ru-
P^^ principal, and of four annas on each rupee
^f the said principal snm, as premium or pro-
^t 00 the said principal sum, against the form
^f the statute in that case made and provided,
%n(J against the peace of our said lord the king,
ciii crown and tlignity.

** Aih\ the jurors aforesaid, upon their oath
tforesaid, do further present, that the aforesaid
Haha liajah Nundocomar, Bahader, after-
wards, to wit, on the I5th day of January^in
tbe year last abovesaid, at Calcutta aforesaid, a
ctrtaiu faUe, forged, and counterfeited bond io

the Persian language, purporting to have been
sealed by the said Bollakey Doss, with the seat
or chop of him the said Bollakey Doss, felo-
niously did utter and publish as a true bond ;
which said bond is in the words, characters,
and figures following, [Persian Bond again re-
cited], with an intent to defraud the said BoU
lakey Doss of the said sum of 48,021 sicca
rupees principal, and of four annas on each
rupee of tbe said principal sum, as premium or
profit on the said principal sum ; the said Maha
Rajah Nundocomar, Bahader, at- the time of
publishing of the said false, forged, and coun-
terfeited bond by him as aforesaid, then and
there, well knowing the said bond to have been
false, forged, and counterfeited, against tha
form of the statute in such case made and pro-
vided, and agrainst the peace of bur said ior4
the king, his crown and dignity.

'* And the jurors for our lord the king,npoii
their oath do further present, that Maha Rajab
Nundocomar, Bahader, late inhabitant in tha
town of Calcutta, and a person subject to the
jurisdiction of the Supreme Court of Judicature^
at Fort William in Bengal, on the 15th day of
January, in the year last abovesaid, with force
and arms, at the town of Calcutta afdresaid^
feloniously did falsely make, forge, and coun-
terfeit, and did cause to be falsely made, forged,
and counterfeited, a certain bond, written in
the Persian language, and purporting to be
sealed by one Bollakey Doss (then deceased)
in his life time, with the seal or chop of him
the said Bollakey Doss ; the tenor of^ which ia
as follows [Persian bond again recited] with
an intent to defraud Gungabissen and Pudmo-
hun Doss, executors of the last will and testa-
ment of the said Bollakey Doss, of the sum of
48»021 sicca rupees as principal, and of fotur
annas on each rupee, as a profit or premium
on the said principal sum, against the form of
the statute in that case made and provided, and
against the peace of our sovereign lord tha
king, his crown and dignity.

** And the jurors afoiesaid, upon their oatb
aforesaid, do further present, that the afore-
said Maha Rajah Nunclocomar, Bahader, after*
wards, to wit, on the said 15th day of January,
in the year last abovesaid, at Calcutta afore-
said, a certain false, forged, and counterfeited
bond, purporting to be sealed by the said BoU
lak(*y Doss (then deceased) in his life tiroey
with the seal or chop of him the said Bollakey
Doss, feloniously did utter and publish as m
true bond ; which said bond is in the words,
characters, and figures following, to wit, [Per-
sian bond again recited] with an intent to de-
fraud the said Gungabissen and PudmohuQ
Doss of the said sum of 43,02 1 sicca rupees of
principal, and of four annas on each rupee of
profit or premium on the said principal sum ;
the said Maha Rajah Nundocomar, Bahader,
at the time of publishing the said faUe, forged^
and counterfeited bond, by him as aforesaid,
then and there, well knowmg the said bond to
have been false, forged, and counterfeited,
against tbe form of the statute in such oas*

927]

IS GEORGE til. Trial ofMaha Rajah Nundocmar, [998

mide and provided, and against the peace of
our said lord the kinfir* bis crown and dignity.

*< And the jurors for our lord the king, upon
their oath aforesaid, do further present, that
on the 15th day of January, in the year last
abovesaid, Maha Rajah Nundocomar, Bahader,
late inhalntant of the town of Calcutta, and a
person subject to the jurisdiction of the Su-
preme Court of Judicature, at Fort William in
Bengal, with force and arms, at the town of
Calcutta aforesaid, feionioosly did falsely make,
forge, and counterfeit, and did cause and pro-
cure to be falsely made, forged, and counter-
feited, a certain writing obligatory in the Per-
sian laofrtiage, purporting to be sealed by the
said BoRakey Doss, with the seal or chop uf
him the said Bollakey Doss, the tenor of
which writing obligatory is as follows [Persian
bond aspaiu recited] with an intent to defraud
the said Bollakey Doss uf the snm of 48,021
■icca rupees of principal, and of four annas on
each rupee of pro6t or premium on the said
principal sum, against the form of the statute
m that case made and profided, and against
the peace of our said lord the king, his crown
and dignity.

** And the jurors aforesaid, upon their oath
•foresaid, do further present, that the said
Maha Rajah Nundocomar, Bahader, after-
wards, to wit, on the said 15th day of January,
in the year last abovesaid, at Calcutta afore-
said, a certain false, forged, and counterfeited
writing obligatory, in the Persian language,

I purporting to have been sealed by the said Bol-
akey Doss, with the seal or chop of him the
•aid Bollakey Doss, feloniously did utter and

publish as a true writing obligatory ; which I his crown and dignity.

lakey Doss ; the tenor of which writing «Ui«
gatory is as follows [Persian bond again re-
cited] with an intent to defraud Gungabissea
and PudoMiliun Doss, the executors of the said
Bollakey Doss, of the sum of 48,031 sicca ni-
pees of princi|ml sum, against the form of tlie
statOte in that case made and provided, aod
against the peace of our said lord the king, bat
crown and dignity.

'' And the jumrs aforesaid, npoo their oath
aforesaid do further present, that the said
Maha Rsjah Nundocomar, Bahader, afler-
wards, to wit, on the 15th day of January, in
the year last abovesaid, at Calcutta aforesaid,
a certain false, forged, and couutert'eittNl writing
obligatory, in the Persian language, pnrpurtiaf
to bare lieen sealed by the said Bollakey Dosi
(then deceased) in his life time, with tue seal
or chop of him the said Bollakey Doss, itk^
niously did utter and publish as a true writing
obligatory; which said writing obligatory is is
the words, characters, and figures follow iog,
[Persian bond again recited] with an intent Is
defraud the said Guugabissen and Pudinohai
Doss, the executors of the said Bollakey Dusi^
of the said sum of 48,091 sicca rupees of firia-
cipal, and of four annas on each rupee of proll
or premium on the said principal sum ; tbs
said Maha Rajah Nundocomar, Bahader, aC
the time of publishing the said false, fiHgc^
and counterfeited writing obligatory, by hia
aforesaid, then and there, well knowing tht
said writing obligatory to hate been falae,
forged, and counterfeited, against the f6m cf
the statute in such case made and pfnviderf,
and against the peace of our said lord the kng^

•aid writing obligatory is in the words, cha-
racters, and figures tbi lowing, [Persian bond
again recited] with an intent to defraud the
•aid Bollakey £>oss of the said sura of 48,021
sicca rupees of principal, and of four annas on
each rupee of profit or premium on the said
principal sum ; the said Maha Rajah Nundo-
comar, Bahader, at the time of publishing the
said false, forged, and counterfeited writing
obligatory, by him as aforesaid, then and there,
well knowing the said writing obligatory to
have been false, forged, and counterfeited.

'* And the jurors for our lord the king,apM
their oath aforesaid, do further present, thai
on the 15th day of January, in the vear last
aboresaidfMaha Rajah Nundocomar, Bahader,
late inhabitant of the town of Cak-utta, anil t
person subject to the jurisdiction of the Sti-
preme Court of Judicature, at Fort Uiiiiain,
m Bengal, with force and arms, at thi* xowuvi
Calcutta aforesaid, feloniously diil t'aMy
make, forge, and counterfeit, and tlid cause aiia
procure to be falsely made, forgeil, and coun*
terfeited, a promissory note for payment of

•gainst the form of the statute in that case | money, in the i*crsian language, purpoi tiniif tff

\

made and provided, and against the peace of
our said lord the king, his crotvn and dignity.
<* And the jurors for our lord the king, upon
the oath aforesaid, do further present, that on
the 15th day of January, in the 3'ear last
abovesaid, Maha l^jah Nundocomar, Bahader,
late inhabitant of the town of Calcutta, and a
person subject to the jurisdiction of the Supreme
Court of Judicature at Fort William in Bengal,
with force and arms, at the town of Calcutta
aforesaid, feloniously did falsely make, forge,
•od counterfeit, and did cause and procure to
be falsely made, forged, and counterfeited, a
certain writing oblii^atory in the Persian Ian-
gtjage, purporting to have been sealed by the
nid Bollakey Dms (then deceased) in his life
time, with tb« aeal or chop of him the said Bol-

I

be sealed by the said Bollakey lloss, with the
seal or chop of him the said Bollakey Dom;
the tenor of which promissory note is as fol'
lows, [Persian bond again recited] with an io'
tent to defraud the said Bollakey Doss of tb^
sura of 48,021 sicca rupees of principui, aiido*
four annas on each rupee Kii protii or premiiifD
on the s?4id principal sum, against the f»mi of
the statute in that case made and proviiled,aad
against tlie peace of our said lord the king, bii
crown and dignity.

*' And the jurors aforesaid, upon their osdi
aforesaid, do further present, that the said
Maha itajali Nundocomar, Bahader, af^
wards, to wit, ou the 15th day of Januar}*, ia
the year last abovesaid, at Calcutta aforesii<lt>
certain fiilse, forged, aod counterfeited proaMt*

t

at Calcutta, far Forgery.

989]

sory note, for tbe payment of money, in tlie
Persian lao^iaife, purpurtini^ to have been i
sealed by the 8ai<l Bollalcev Dusa, witii tbe seal '
or cbop of him tbe said Bollakey Doss, felo-
•ifHisly did utter and publisb as a true promis-
sory note ; which promissory note is in tlie
words, characters, and figures folio wingf, [Per-
pian bond a{(ain recited] with an intent to de-
fraud the said fiullakey Dos» of the said sum
•f 48,021 sicca rupees of principal, and of four
annas on each rnpee of profit or premium on
tbe said principal sum ; the said Maha Rajah
Noiidocomar, Bahader, at the time of publish-
ing the said false, forge<l, and counterfeited
promissory note, by him as aforesaid, then and
there, well knowing the said promissory note
to have been false, furged, and counteneited,
against tbe form of the statute in such case
made and provided, and against the peace of
aor said lord the king, his croivn and dignity.
*' And the jurors tor our lord the king, upon
tbeir oath aforesaid, do further present, that on
the 15tb day of January, in the year last above-
■aid, Maha Rajah Nundocomar, Bahader, late
iBliabitant of the town of Calcutta, and a per-
aoB sub^t to the juiisdiction of the Supreme
Court of Judicature at Fort William in Bengal,
with force and arms, at the town of Calcutta
aforesaid, feloniously did falsely make, forge,
and counterfeit, and did cause and procure to
ba falsely made, forgeil, and counterfeited, a
promissory note for |>ayment of money, in the
Persian language, purporting to he sealed by
tba said Bollakey Doss, (then deceased) in bis
life time, with the seal or chop of him tbe said
Bdlakey Doss; the tenor of which promissory
note is rs follows, [Persian bond again recited]
with an intent to defraud Gnnt^abissen and Pud-
■lohun DosH, the executors of tbe said Bolla-
key Doss, of the sum of 48,0'<21 sicca rupees of
pnocipal, and of four annas on each rupee of
profit or premium on the said principal sum,
againftt the form of the statute in that case
inade and provided, and against the peace of
oir said lord the king, hi.s crt»wn and dignity.

'*And the jurors albresaid, upon tbeir oath
aforesaid, do further present, that the said
Bkha Rajah Nundocomar, Bahader, after-
Wards, to wit, on the 15th day of January, in
the year last above»ai(l, at Calcutta aforesaid,
A certain false, forged, and counterfeited pro-
missory note for payment of money, in tbe
Persian language, purporting to hare been
*nled by the said liullakcy Doss (then de-
C^tsed) in his lifV* time, with the si*al or chop
^him the said Bollakey Doss, felouioiisly did
^^er and pubfiMh as a true promissory note ;
*bich promissory note is in the words, charae-
^ffs,aod fiyfures following, [Persian bond re-
nted] with an intent to delraud the said Gqn-
|*biM4>n and Pudmohun Doss, the executors
^ the said Bollakey Doss, of the said sum of
^lOSI sicca rupees of priiwipal, and of four
^Qoiis on each rupee of protit or premium on
Ike Naid principal sum ; tiie said Maha Rajah
Auodocomar, Bahadefi at tbe time of publish'
?0L. XX,

A. D. 1775.

[980

ing tbe said false, forged, and counterfeited
promisaory note by him as aforesaid, then and
there, well knowing the said promissory note
to have been false, forged, and counterfeited,
against the form of the statute in that case
made and provided, and against tbe peace of
our said lord the king, his crown and dignity.

" And the jurors for our lord the king, upon
their oath aforesaid, do further present, that on
the 15th day of January, in the year last abore-
saiil, Maha Rajah Nundocomar, Bahader, late
inhabitant of the town of Calcutta, and a per-
son subject to the jurisdiction of the Supreme
Court of Judicature at Fort William in Bengal,
with force and arms, at tbe town of Calcutta
aforesaid, did falsely make, forge, and counter-
feit, and did cause and procure to be falsely
made, forged, and counterfeited, a certain writ-
ing obligatory in tbe Persian binguage; the
tenor of vliich writing obligatory is as follows,

S Persian bond again recite^ with an intent to
efraud tbe said Bollakey Doas of the sum of
48,021 sicca rupees of principal, and four annaa.
on each rupee of profit or premium on tbe said
principal sum, against tlie form of the statute
m that case made and provided, and against tbe
peace of our said k)rd the king, bis crown and
dignity.

'* And tbe jurors for our lord tbe king, upon
their oath aforesaid, do further present, that
the said Haha Rajah Nundocomar, Babadert
afterwards, to wit, on the said 15th day of
January, and year last ahovesaid, at Calcutta
aforesaid, a certain false, forged, and counter^
f'eited writing obligatory, in tbe Persian Ian*
guage, feloniously did utter and publish as a
true writuig obligatory ; which said writing
obligatory b in the words, characters, and fi-
gures following, [Persian bond again recited]
with an intent to defraud the said Bollakey
Doss of the said sum of 48,021 sicca rupees olf
principal, and of four annas on each rupee as
profit or premium on the said principal sum $
the said Maha Rajab Nundocomar, Bahader^
at the time of nublishiug the said false, forged,
and counterfeited writing* obligatory, by him
as aforesaid, then and there, well knowing tbe
said writing obligatory to hare been fahM^
forged, and counterfeited, against tbe fbrm of
tbe statute in such case made and provided, and .
against the ueace of our said lord the king, hie
crown and dignity.

** And tbe jurors for our lord tbe king, apoa
their oath aforesaid, do further present, that
on the 15tli day of January, in the vear laafc
ab(»vesaid, Maha Rajah Nundocomar, Bahader,
late inhabitant of the town of Calcutta, and a
person subject to the jurisdiction of the Su-
preme Court of Judicature at Fort William in
Bengal, witn force and arms, at the town of
Calcutta aforesaid, did falsely make, forge, and
counterfeit, and did cause and procure to be
falsely made, forged, and counterfeited, a cer-
tain writing obligatory in the Persian language;
the tenor of which writing obligatory i»i as fol-
lows, [PeraiaQ bond again recited] with an wn^

30

9Sl]

15 GEORGE III. Trial o/Maha Rajah Nundocamar, [OSt

tent to defraad Guneabissen and Pudroohnii
Boss, the executors of the said Bollakey Doss,
of the sam of 48,CH21 sicca rupeefi of pniicipal,
and of four annas on each rupee of pro6t or
premium on the said principal sum, against the
peace of our said lord the kiug, hia crown and
dignity.

'* And the jurors for our lord the king, upon
tbeir oath aforesaid, do further present, that
the said Maha Rajah Nuadocoinar, Bahader,
afterwards, to wit, on the said 15th day of Ja-
nuary, and year last .aboresaid, at Calcutta
afowsaid, a certain fidse, forged, and counter-
feited writing oUigatory, in the Persian lan-
guage, felonioofiy did utter and publish as a
true writing obligatory; which said writing
oUigatorv is in the words, characters, and fi-
gnres following, [Persian bond again recited]
with an intent to defraud Gungabissen, and
Pudmohun Doss, the said executors of the said
Bollakey Dosa, of the said sum of 48,031 sicca
rupees of principal, and of four annas on each
rupee, as profit or premium on the said princi-
pal sum $ the said Maha Rajah Nondocomar,
Bahader, at the time of publishing the said
fiJse, forged, and counterfeited writing obliga-
teyt by him as aforesaid, then and there, well
knowing the said obligatory writing to hare
been false, forged, and counterfeited, against
the form of the statute in such case made and
provided, and against the peace of our said lord
the king, his crown and dignity.

** And the jurors fpr our lora the king, upon
their oath aforesaid, do further present, that
llaha Rigah Nundocomar, Bahader, late of
the town of Calcutta, being a person subject to
^e Supreme Court of Judicature at Fort Wil-
liam in Bengal, on ^le 15tb day of January, in
the year arovesaid, with force and arms, at
Calcutta aforesaid, feloniously did falsely
make, ferge and counterfeit, and did cause and
procure to bo falsely made, forged, and coun-
terfeited, a certain writing obligatory in the
Persian language ; the tenor of whicn certain
writing obligatory is as follows, [Persian bond
again recital with an intent to defraud Gun-
gabissen and Heogoo Laul, the two nephews
and trustees named in the last will and tei^ta-
nent of Bollakey Doss, deceased, of the sum
of 48,091 sicca rupees of principal, and of four
annas on each rupee of profit or preiniuiri on
the said principal sura, against the form of the
■tatute in that case made and pro?ided, and
a^nst the said peace of our said lord the king,
lus crown and dignity.

'* And the jurors mr our lord the king, upon
their oath aforesaid, do further present, that
Maha Rajah Nundocomar, Bahader, late of the
towa of Calcutta, being a person subject to the
Summe Court of Judicature, at Fort William
in Bengal, on the 15th day of January, in the
vear abovesaid, at Calcutu aforesaid, a certain
ndse, forged, and counterfeited writing obliga-
tory, in the Persian language, feloniously did
utter and publish as a true writing obligatory ;
tho teaor of which writing obligatory is as fol-^
}fw$t [Pertiaa bond again recited] with ao in-

tent to defraud Gnngabisseo and HengooLaol,
the two nephews and trustees nam^ in the
last will and testament of BolUkey Doss, de-
ceased, of the sum of 48,031 sicca mpees of
principal, and of four annas on osch rupee of
profit or premium on the said principal smi;
the said Maha Rajah Nundocomar, Bahader,
at the time of publishing the said false, fomd,
and counterfeited writing obligatory, by ana
as aforesaid, then and there, wdl knowing tbs
said writing obligatory to bare been me,
forged, ana counterfeited, against tbo fbrai of
the statute in that case made and provided^ sad
against the peace of our said lord the king, hii
crown and dignity.

** And the jurors for our lord the king, apoa
tbeir oath aforesaid, do further present, tliat as
the 15th day of January, in the year last abofe-
said, Maha Rajah Nundocomar, Bahader, lt$it
inhabiUnt of the town of Calcutta, and a psms
subject to the jurisdiction of the Supreme Co«K
of Judicature at Fort William, in Bengal, with
force and arms, at the town of Calcutta albr^
said, feloniously did falsely maJ^e, forge, asd
counterfeit, aud did cauie and procure ts W
falsely made, forged and counterfeited, a ce^
tain writing obligatory, in the Persian In-
truage ; the tenor of which writing obligalorf
is as follows, [Persinn bond again recited] win
an intent to defraud Gnuflrabissen, the sormisf
executor of Bollakey Doss, deceaaed, of tw
sum of 48,021 sicca rnpees, of principal, and sf
four annas on each rupee, of profit or premiaM
on the aaid principal sum, against the fbnn sf
the statute in such case made and proTided, aarf
aginst the peace of our aaid lord the king, kit
crown and dignity.

" And the jurors for our lord the kin|r» ^f^
(heir oath aforesaid, do further present, tbattfct
said Maha Rajah Nundocomar, Bahader, af^
wards, to wit, on the 15th day of January is
the year last abovesaid, at Calcutta aforesaid,!
certain false, forged, and counterfeited writing
obligatory, in the Persian language, felooMMislj
did utter and publish as a true writing obligt-
tory ; which said writing obligatory is in tbt
words, characters, and figures following, [P^-
sian bond again recited] with an intent to de-
fraud Gungabissen, the surviving executor of
Bullakey Doss, deceased, of the said sum ^
48,021 sicca rupees of principal, and of four
annas on each rupee, as profit or premium oa
the said principal sum ; the said Maha Rajah
Nundocomar, Bahader, at the lime of publisb-
ing the said false, forged, and counterfeited
writing obligatory, by him as aforeaaid, tbes
and there, well knowing the said obligatort
writing to have been false, forged, and oonottf'
felted, against the form of the statute in socb
ca«e made and provided, and against the peict
of our said lord the king, his crown uai
dignity.*' (Signed)

June 7, 1775. J a. PRrrciuRD,

Clerk of the Crows.

(Signed)

W. M. BscKwrrH,
Clark of the Indictmeat

a; Cakulla.for forgery.

" I olio xm BnllBke; Din.
Lpetrl necklace, a t willed liul{rl>Bli< >
(rpiche, tnil fuur rings, tno ut'whidi
rubia tud iwo or dill nan ila, were de-
f Itngonnnl Roy Geoo, on acvouni uf

le former Editioa ii giien the lullokv-

GLOSSARY.

nf. Lileivlly fignifiet juilice ; liut

ptil fur ft cODFt ofjusiice.

K, A represenniion in writing, or letter

. A particular ouisnioag tbe Ilin-

L DifTereiiee of inclitnge upnn coint.
^bA. A diiirict.
■mA. a householil stewanl.
k A labourer, or [Mirlcr.
X A meiMnger.
\kofaCutchertr. Superinlendant of a

r Eipenca. Money given In persons

, An Arabic woril, exprensiiig nnity ;
■ically aignifies a sliest of paper, con-

. A particular office uoder Ilia

VoAtr. Sixteen riipeci.
. Agent.
; A portino of lime cnoUining aliout

Literally a ijiy ; but cuninincil]'
II wlin runs on ineMages, and at-

rt of llie drets of ti native of

. Deliii lide of an accnunt.
. Exchequer.

\l. A dreu nf invealilure giren to a
»a bl> numitiatinn lu an olfice.
Igar. A waiting serrant-

A particular

ir ibe turbau.

:a«l amopgit Ibe

inUe. A Mtcretary or writer.

kt. A Iracher.

Mr. A pretrol of complimeat made by

ior wben introduced lo a *u)>e[iur.

( A footroao, or person lo go on mei>

L Title deed.

Literally d friernl ; but inean^ alt
li* trial a bair-tdeud aiid lialf-de-

^ An ornameDt fnribe turbao.
- Equipage.

' banker, an exFlianiier of money.
k grant rrijin ibe goreroioeiit or

. A farmer,
jialtornrjr-

A. D. 1775.
Alalia Rajnh Nundocomar, Bnbader, io the
iDonib of Atsar, in tlie Bengal year 1 165, witb
ine, io my liouiie at UiiDr«tiei1ab»d, thai the
same might be sohl ; at ilic lime of the delent
of tbe aroiy of tbe Nobnb Mcer Mabumed
Cosaim Cawn, the money and eKWclB uf the
boUEe, logelber with ihe al'iiresniil juwpIs, n ere
plundered and carrieil away. In the year IWtf,
Bengal siyle, when I arrived In Calcnita, Ibe
afureaad Maba KiijabdemaiKled llie belbre-iren>
lioneddepoRitorjewels ; I could not produce the
depoiil when demanded, and, on account of ibe
had Klate nf my affiiirs, was unable In imy the
Tahie iliereof ; I ilterefore pnitniK and u'lve it
iu writing, Ibai wlien 1 ahall receive buck ibe
sum of two laeka of rupees, and a lilile above,
which Is in tbe CoiDpauy'a cath at Dnccn, ac-
cording to the ^UFtboa of reekonmg nf tbe
Company, I have agreed and sellled, that Ibe
sura of 4B,0S 1 »icca rupees ia the |)i incipal nf
Ibe amount of (he said deposit of jewels, which
is juaily due by me, and over and above ibal, a
premium offouranuas upnn every rupee. Upon
the payment of (he aluresaid aum from the
Company'* caab, I will pay ihal auoi, wilhniit
excube and evasion, lo the aforesaid Malta
Rajab. 1 have, for tbe above reasona, given
these reasons in the form of a bnnd under my
sigooture, that when it is necessary U may b*

" It ia wiioessed,
" Mebab Rot;
" Scii.AtiBUT, ibeVukeel of Seat 6

Doss;
" Abd^hoo Co)itM.tUL Mahomed.

Alalid, >' BoLijtKiv Doss."

<< Written on Ihe 7th day of the in
Madcwo, in the Bengal year 1173."

The Counsel tor ibei'risoiier desired that tb*
witnesses might be kept separate.

Court. Tbe great number of witnesses itt
this cause, iba ditfereoce of their casts, aud ibe
lenatb of time tbe trial ia likely lo lake up.
renders it atraoit imposaible lo confine them.
If any method cai
incnovenienciea v
very ready to grant tbe request.

A Her a abort debate it was agreed, that peona
ahauld attend Ihe witnesses lo keep them
separMe, and prcrenl any perton having com -
municalioa with Ibem ; and that each witnew,
immediately after baving giveu bii evidence,
ahoiild be kepi in Iba gallery ; and thai ■ coo-
sbrifle ahould attend there, lo prevent say na-
tives frotn bsvingBCceaa to them.*

MafiuH Pfrtaud av/avo an avoir dirt.

Mr. farrer, (Adv./or IhePrit.) Ila. Gun.
gabiscen made yon any uromise, in esse llie
prisoner is «o»icled r— -4. I am to have ftve
per cent, on any money received.

CoitI. Is it a special prumise on this occa-

giou)' A. It is a general camniisaion ibat 1 aox

to have upon al) the affaira of GuugalriMitu.

■ !Seevol.B,p.T93,vo).ta,(.9Il.iol.U,
p. 329, vol. 19, p. 3W.

15 GEORGE HI. Trial oJMaha Rafah NUndocomar, \99t

Can you gire an aecooat how it came fiui
there ? — No, I cannot say.

Was the seal e? er out of your poaaeasioD ?—
I sent the seal to Mafaa ftajafa Idlhdoqoniar,
at MoDgheer.

When didvoa tend it ? — At the tioie the wit
between Jamer Ally GawD, and Coaaim Ally
Cawn subsisted.

Upon n hat occasion did you send it ? — Wbca
I was released frooi confincmebt, Mabm tUjah
Nundocomar desired a servant of oiine to da-
sire me tu send my seal lu him — my serraat
had been l>efbre that with IHaha Ra^afa Nonda-
comar. The representation the man imidooilk
regard to sending the seal was this —

Court, Is that man alive f — A. He waakiUd
that same evening.

What was his name? — Eoll Mahomed^ n/
Jeroedar. He likewise dt^sireil the servant it
request me lo scad a nazzer with the seal, tlul
he might, with the seal, seal a peiivifUi to Um
Naboi), and present it with the nazzer. I thea
delivered to Sbaik Cossiui Ally, my Con*nnali|
one gold moheer and four rupees, as a naxacr
to Maha Rajah Nundocomar, and oue goU
moheer and f<»ur ru|»ees as a nazzer lo tlw
Nabob ; and likewise the seal, of which thiib
tlie impression, [pointing to the seal on the
bond] in order that he might put them into a
bag, that it mij^ht be sent by a messenger ti
Maha Rajah Nundorumar. The bag was ac-
cordingly sent by a messenger.

Do you know the name of that raesaengcr?
— I do not know what ttie CoKsid's uameii;
there are twelve hundred at that place. Itii
fourtten or fifteen years ago.

Do you know if it was ever received by tbe
prisoner? — I do; for Maha Rajah Noada-
comar wrote me a letter in consequence of it
[The letter produred.]

Counsel for Prisoner, I admit the Mahl
Kujiih had the leittr.

Counsel for Crown. Read the letter.

Court. Go throu*j^h with your evidence.

Counsel for Croun. The letl»^ does not BJ
the seal was received ; but it ackoowltdges tlie
receipt of the letter, and the seal was inclosed
in the letter.

Court to Prisoner s Counsel. Do you see the
conseqticiire ? Do vou mean to admit it?

Counsel. I have duty wei^'hed what yoor
lordshi[» said, and therel'ure will not admit iL

Witness read the letter, of which the follow-
ing is a translate, omitting unnecessary compli-
ments.

[After the customary compliments.]

" 1 have received your letter, with which I
have made myself acquainted, and by which
I have been rendered joyful. — Thanks to the
great God, you have been released. Tba
nazzer of congratulation which you rent to
me, has arrived. !V1 ly the gi'eat God rewiH
vou with victories ! In consequence of your
letter 1 have (;ot an arzee for y uu written out ;
have presented it, together with the naxSff
you have sent for that purpose, la the NaM;
and havuig received an anawer, tend it dh

9S5]

Mr. Farrer, Is it a promise in writing, or by
word of mouth ?— ^. It is a written letter of at-
torney : orii;inally it was a letter of attorney to
me, hir. Hamilton, and Mr. Lodge: the two
last withdrew upon the commitment of the

Srisqner. I have likewise in my possession a
fa<rree letter of attorney, drawn by Mr.
Driver.

James Driver examined.

To whom is that Nngree letter of attorney
teade? — It was a power of attorney made to
Muhun Persand, and oue John Love. After-
wards I drew one in £ngli8h, to Muhun Per-
daud singly.

The. counsel for the prisoner desiring thai
the papera might be produced, Mohim Per-
aand, together with the clerk of Mr. Janett,
attorney for the prisoner, was sent to fetdi
them : ut>on which the counsel for the crown
<}ailed

Ccmmaul O Dein Cawnt sworn upon a voir dire.

Pritoner^i Counsel. Do you know the pu-
niahmeut of |)erjurv by the English law?

Court, You had better tell it him.

Counsel, When the life of a man is at stake,
if you tell falsely, you will be deemed infa-
ipoiiSy put in the pillory, and burnt in the
hand.

[Counsel for the crown desired that the ques-
tions might be interpreted to the witness in the
Persian language, as the witneaa understood
that languasre best.]

Court, What Ung^age do you understand
best?— ^. Persian. — [Being again interrogat-
ed, he said he understood both equally well, and
could answer in either.]

Which can you most easily explain yourself
in ? — I will answer in either. Hindostauee is
my native language.

Which language wit! you be exantined in ? —
I think 1 shall be best understood in Persian.

Prisoner's Counsel, Have you received any
money from Mohun Persaud, or any other
person, to give evidence on this occasion ? — No :
defend me, good God ! I never do such devilish
things.

Do you expect any favour or protection, or
have you had any promise of money from any
nerson, for giving evidence on this occasion ? —
Wo.

Sworn in chief.

Counsel for Crown. Whose seal is to that
bond? [shev^n the bond.] — A. It is my seal ;
but the uords signifying '* it is witnessed," are
not of my signature.

Whose name is expressed in that seal? —
OlKlahu Mahomed Commaul.

Is that your name? — That was tny original
name.

• When, or upon what occasion, did you
chanfi;e yoiir name?->At the time oFthe Nabob
Nuiclium a1 Dow la, I got a royal title, and I
am since called Cuuimaul O Decn Ally Cawn.

Did yoaaflix-yotir seal to that bond ? — No, I
did not.

937]

at CaIadta,Jbr Targery.

A. D. 1775.

tdSs

cl6fed in tbii letter. Too will be made ac-
qiitinted with the contents, by inspectine* it*
vVith mpect to the eircnmstance of callingf
you to the army, about which you bare written,
as the Victorious (the Nabob) intends shortly to
leave Moogheer to go to Patna, there is no ne-
cessity for ymir making so long and trouble-
some a jouruey ; you bad better stay some time
longer at your own house. When God is wil-
ling that tlie victorious army should return to
Moorshedalmd, yoo will attend there, and make
Hie jo^'ful by your company. — Every thine
then will be settled propeiiy,— Rest content<*d.
—Remain certain that 1 am your friend, and
write an account of your health. The cloth
yon before sent is arrived. — What else shall 1
write ?»•

Directed to Shaik Mahomed Commanl.

Dated ttie izd of Rubbee, ul Akher, in the
ibnrth year of the reign.

Cross ixaminatum*

Q. Is it alwa^scuRtoroarv to affix the seal to
all arzees presented to the Nabob? — A. Yes.—
An arzee is nevm* presented to the Nabob with-
out a seal.

Was your seal ever returned ?— No,

Do you know who has got it? — Maha Rajah
Nundocomar.

How do you know P— I sent it, and never got
h back.

Have you ever applied for it?— Yes, I have
several timfs. I have likewise complained
oonremiog its not beiug delivered.

Did yf>u ever receive any answer to those
complaints? — 1 demanded the seal of Maha
Rajah Nundocomar, who said it was not in hi&
possession. 1 told Coja Petruse of it: I in-
tended to complain, but Munshy Sudden o dein
advised me not.

When would you have made your com-

Slaint? — At the time when Mr. Palk confined
faha Rajah Nundocomar ; it was about three
years ago, then Munshey Sudden o dien ad-
vimmI me not to complam, because the go-
temor ha«l given his son Rajah Gourdass the
kballat fur the office of Dewan of the city of
Morshedabad.

Whom did you mean to complain to? — ^To
the governor and to the AudauleU

Did you want to complain to any other per-
son ? — No.

Did yoQ ever bear of your seal being put to
any bond ?— Yes, Mohun Persaud first told roe
that my seal was to a bond, and then the Maha
Rajah himself told me he had put my seal
to a bond ; 1 saw the bond once before himself.
[The bond stated in the indictment produced.]

What passed between Mohun Persaud and
yen upon the time when he toM yoo of the
seal?— 'First, be bid me pay 600 rupees, which
I owed the estate of Bollakey Doss. I said,
** I am a poor man out of employment ; how
•hall I get the money ?'*

When was this? — It was about two months
before Mr. Palk confined the Maha Rajab. It
WBs about two months before I got my pott,
wliich is three years since.

1

Cmtri, Go on with yonr story of what passed
between you and Mohun Persaud. — A, Mohun
Persaud then aske<l me if 1 was a witness on
behslf of Maha Rajah to a bond of Bolfakey
Doss, or if my seal was affixed to it. I said I
was a witness for no man, and that 1 knew no-
thing with respect to this matter. H^ then
asked if my seal, with the name of Abdahti
Mahomed Commaul, was fixed to that Inmd. 1
then said there may l>e a great many people of
the name of Mahomed Commaul. I then went
to Maha Rajah Nundocomar, and repeated to
him what Mohun Persaud had said to me. He
saiti. It is true ; having confidence in ^ou I
have fixefl your seal, which was in my posses-
sion, to the bond of Bollakey Dohs. Having
sworn, you will give evidence of this bf fore the
gentlemen of Audaulet. I answered, How
shall I be able to take a false oath t He an-
swered, 1 had hopes in you. I answered, JHea
will give up their lives for their uiastem, but
not their religion ; have no hopes of me. I
then went and informed Cnja Pcti use and Mun-
shey Sudden o dien of what had passed.

Was Bollakey Doss alive or dead at the time
the seal was sent ? — He was alive ; he had ab-
scondedfrom Mongheer. Some years after,
he came to Calcutta.

After you had told Coja Petruse and Mun-
shey Sudden o dien, did you tell it to any
others ? — No.

Crou Examination,

When did you change your name?— Ten or
fifteen days before Mahomed Reza Cawn was
appointed Naib Suhah. 1 have got a seal,
which was given me at the time, which has
got the day and year u|>on it. I can produce
it.

Where is the snnnnd ? — ^Thesunnud is dated
some years before 1 took the title ; at the time
the King and colonel Coote were at Patna a
sunnud was procured for me by Shitabroy,
who sent it to Maha Rajah Nundocomar, who
detained it some time in his possession. In the
time of the Nabob Nutchum al Dowlah 1 was
appointed to the Foujdarry of Hldgelee, from
which time my title commenced.

Where is the sunnud ? — It is at Hugly, hot
the great seal is with me.

[Mr. Farrer desired it might be produced^
which was agreed to.]

What did the dignity consist of ?— I was by
that means named Cawn, but received no jag-
hire.

Is it not customary for natives when they re-
ceive a title to take it immettiately ? — When-
ever the Subah confirms it and- gi«es him a
seal, it is then customary to make um of it.

At what time did the Nabob confirm il ?—
Maha Rajah Nundocomar was st that time
Naib Dewan. About ten or twenty days after
be was dismissed, and Mahomed Reza Cawn
was appointed in bis place.

Was Nutchum al Dowlab Nab(»b at the time
colonel Coote and the King were at Palna ?—
He was Nabob at the time the title wa» i^xrtx.

93D^

15 GEORGE m. Trud o/Maha RnjA Nuadoeomar, [MO

Interp. This word literally interpreted metni
«* to flow ;" but what is meant by it is, *^ coa-
firmed."

When did you begin to use the seal with
TOur titles? — At the time of the Nabob
Kutchuni al Dowlab, when two seals were
ffifen me, I was appointed Foujdar of Hidgel-
lee, and had two seals, one great and one small
one, sent me from the government.

When a royal title is given to a native, can
he make use of it without the permission of the
Nabob ? — He gets the sunnud, and perhaps a
jaghire from the King, but cannot make use of
It till a seal has been given by the Nabob, and
he is permitted to use it.

How came you to apply to Maha Rajah Nun-
docomar to draw up VQur arzee ? — As i had no
connection with the Nabob, why should I draw
up an arzee myself? The Maha Rajah desired
1 would send my seal to put to an arzee, and I
did so.

In executing any bonds or deeds, do you
make use of your signature or your seal ?-*
When 1 execute a bond on my own account, I
write the word ** Oolaubd" ahe slave of God)
and fix my seal under it. When I witness any
paper, I write, " It is witnessed," and fix my
teal under those words.<^[ He produced a paper
iealed with the same seal, to prove he had the
seal. The jury compared it with the iuipres-
■ion on the bond, and think them the same ;
each of the impressions shewed a small flaw
which was in the original seal. He likewise

8 reduced the great seal, which he had from the
oubah.]

Were you ever upon terms of friendship with
the Maha Hajah ? — He was a friend of my fa-
ther, and my grand-father. We were oflen in
friendship, and oflen broke off. The Maha
Rajah protected me from ten years of as2:e.
When he was Dewan of Mahomed Heha Beg
Cawn, I was farmer of Chouogi. The first
difference, that happened between me and
Maha Rajah, was wiien I was appointed to
Hidgelee. It was not a dispute, but a differ-
ence of two days.

Court. What was this dispute about? — A. It
begun thus. First he said be would be my se-
curity, and atVerwards went off from his pro-
mise. 1 got another man to be my security,
and afterwards went frequently to Maha ila-
jab*s house.

To what amount was he to be security ? —
The revenue for which he was to be my secu-
rity, was between 3 and 4 lacks of rupees.

Were you so reconciled together as to live
upon friendly terms? — Yes.

Who were present when the Maha Rajah ac-
knowledged having put his seal to the bond ? —
No one.

Is it usual for the Maha Rajah to have no
attendants ? — Where he is private, or has busi-
ness, he is certainly very often alone.

Did be make his acknowledgment more than
once ? — No.

Was it before or after you quarrelled ?— It
before, two or three moDthi,

Court, You say io your enannalMm, '^ I
am witness to no man :" tbeo bow c$m€ yea
to produce papers, to shew how you sign yoor
name as witness?— ii. I did nol mean to no
person whatsoever, but to oo mao opoathis oc-
casion.

Court to Interp. Woald you, from the idkan
of the language, understand him to say, ** I
am no witness to any man ?"

Interp, His own words are, *' to a man a
witness I am not''— [The witoeae said this was
the idiom of the language, and his commoa
mode of expressions, and mentioDed aome in-
stances of it.]

Court. Point out the words, <* It is witnesi-
ed," which you say are not your baad-writiag.
[He points to the words wrote oTor hie seal if
the bond.] Do you mean to say, that the ia-
pression of that seal ap^ring upon the hm of
this bond is the imprension of your seal ?— J. I
do ; that is the place in which I osuallj write
these words.

Court, Have you ever paid the 600 nipeails
the estateof BoUakey Does?— J. 1 have. illMt
five or six months atler I was appointed Is
Hidgelee I paid that money. I bare got lbs
acquittal.

Couraelfor Prisoner. What did yoa doftra
seal io the intermediate time between the turn
your seal was sent to Maha Rajah Nandooooiar,
and the time yoa had your new one ? Wbil
seal did you make use of f*-^. I had anolbcc
seal made for me.

Where is that seal?— When ) got my new
title, I destroyed that seal, I defaced it.

Counsel for Crown. Is not that customaij
upon getting a tiew title ? — A, It is at the ap*
tion of the party. Some people keep their aeaia
some are afraid to do it.

Court. Have you any papers with the im-
pression cf that seal?— ^. How should I bars
any papers ? My house was twice beset by tbe
servants of Mahomed Reza Cawn, and ail my
papers destroyed.

Was the second seal of tbe same siee and
characters as the first ? — I do not remember.

How came it that you kept the pa|)ers you
produced, as you said you lost all your papen?
— I lost most of my papers. A Uttle box
was saved, and these three papers were in tbit
box.

[Counsel for prisoner desires that these tbrN
papers may be depositetl in Courts— they

were.]

Mr. Farrer^ counsel for the prisoner, ob*
served, that in England a prisouer, from bis
knowledge of the language, had an opporUi*
nity of hearing the evidence and making bis
own defence, which Maha Rajah Nunooco-
mar was deprived of : he therefore thought il
reasonable that his counsel should be permittsi
to make a defence for him.

Court. All the evidence has been given ia
a language the prisoner understands. Aaf
defence he chuses to make wiU be intefyMlM.
to the Court

§41] , ni Calcutta^ Jbr Forgergr

The coiititel alfO obspnred, that Commaul o
Dien said the Maha Rajah hail confessed to
liim that he had made use of his seal. He
must therefore know that he had put his life in
his power ; was it likely then that he should
i^uarrel with this man on so trifling an occa-
0IOQ, as the being his security ?

Coja Fetruie examined.

Id what language do yon chuse to lie exa«
mined P — In Peraias, Hindostanee, or Portu-
guese; but rather in Persian.

Are you acquainted with the last witness,
Cum. o Dein? — 1 bate known him upwards of
to years.

Had YOU any particular contersation with
Commal o Dein, respecting a seal ? — It was
three or four years ago.

Tell the particulars of that conTersation. —
I will tell what I remember : One day I was
•ittiog in my house, Cummal a'din Cawn came
to me and said, ** My seal is in the possession
of Maha Rajah Nundocomar: I wanted.to get
it again, but could not." I then aked, why
hif seal was in the poesession of Maha Rajah
Nundocomar? He told me, '* When Jaffier
Ally Cawn was Nabob, he had deaired my seal,
that ha might put it to a request, and get me
MHue employment. I sent it to him in conse-

Joence ; but he does not now return it to me,
will go to Mr. Harwell, and complain." —
This was the conversation that passed between
us that day ; there was no other oooTemation.
On moother day there was, respecting the busi-
iieas of Hidgelee, where he said that Maha
Rajah Nundocomar had agreed to stand his
Mcurity. J said it was very well. Some davs
afWr, 1 asked how that business was settled?
He answered, *' Maha Raiah Nundocomar is
Bot my security." I asked, how so ? He said,
'* lie demands three things from me : First,
That I should give a writing, that I was a wit-
ness to the bond of Bollakey Doss, to which
ny seal is affixed .-—Second, That 1 should
represent receipts of money [Burramed, the
Fersian word] against Mr. Lushington : Third,
That I should represent another Burramed
against Bussunt Roy. 1 answered, I cannot
aell my religion."

Were you acquainted with Bollakey Doss?
—Yes, he used to come to my house.

Were yon acquainted with his circumstances?
—No ; I do not know if he was in good or bad
circumstances.

Jury, Yon hare known Cummal a'din
Cawn twenty years ; what is his general cha-
raeter ?— I never heard he bad a Imd name.

Has he a good name? — I never knew any
thing bad of nim ; the world is apt to give
g^oodor bad names with very little reason : some
•peak well, some speak ill of him ; I never
Jusew any barm of bim.

What IS his general character ? — Ten people

wak well of him, to four who speak ill of him.

It there not now, and has there not been for

mm time, a deelared enmity between you and
Maha Biyah Noodocpmajr ?<i*He may have an

A. D. 1775.

enmity to me, but I do not know that he has ;
and I have none to bim.

Moonthet Sudder o Dein sworn.

Are you acquainted with Cummal a Din
Cawn ? — Yes, I have known him for near 20
years.

Had you at any time any conversation about
his seal being affixed to any bond ?— 1 had, in
the month of Assar, Bengal year, ] 179.

Do you recollect that conversation ? if you
do, tell it as well as you can. — He was con-
versing with me about the farm of Hedgelee ;
the circumstance of the security was men-
tioned. I said. Now you are a competitor for
the farm of Hedgelee, you will undoubtedly be
obliged to give security. You are always go-
ing backwards and forwards to the house of
Maha Rajah Nundocomar : if you can get him
to be your security, it will be better. He said,
1 shall probably not be able to get him to be
my security, because he has affixed a seal of
mme to a bond of Bollakey Doss; and he say a
to me. It is necessary for you to give evidence :
but I have refused ii, saying, I will not give
up my religion. 1 asked him ih what manner
the seal had come into Maha Rajah Nundoco-
mar's hands, and how be had fixed it? He an-
swered, ** I formerly sent him my seal to be
fixed to an arzee to be presented by Maha Ra-
jah Nundocomar to the Nabob Jaffier Ally
Cawn, imd that seal is with him ; he now has
affixed that seal to a paper of Bollakey Doss's
without my knowledge. 1 do not therefore
now desire him to stand my security."

Did any thing more pass that day ? — 1 re-
member no more that day. He came to me
upon another day, and said that Oungabissen
would be his security. 1 then informed Mr.
Harwell, that Gungabissen would be his secu-
rity ; but he answered that security would not
be approved of by the council. Four or five
days afler, Commaul o Dien Cawn came to me
again, and said that by intreaty he had per-
suaded Maha Rajah Nundocomar to be his se-
curity : of this also 1 informed Mr. Barwell,
who said that* if he would come and stand his
security, it would do. Maha Rajah Nundo«
comar afterwarda wrote a letter to council re
specting his standing security ; but whether he
did or not, I cannot tell.

Had you any further conversation with Com*
maul o Dien r— I soon after went to Moor-
shedabad and Dacca : when I returned, Com-
maul o Dien said to me, ** Maha Rajah Nundo-
comar has produced two papers ; first, that I
should give evidence about the seal of the bond
of Bollakey Doss ; second, about standing se-
curity for Hedgelee, and said. Take this and
sign this, pointing to the two pspcrs. f would
not ; and afterwards got Lane, Dutt and others^
to be my securities."

MohuH Pertaud returned with the papers.

Counsel for Prii, Have you brought all the
letters of attorney uncancelled, relative to the
estate of BoUakey Don?— >! hare.

fi3]

15 0EOBGE in.

B**B jvt any otlMr inatrammt !■ mitiaf ,
relUifelulhceaUleorBatlakay DoM,ban4«i
tboaeyou hare produredF — I {)•?« Ua bonka.

Hare vnu any other de«d, relalire to Ibe
•date orBulUkey Dsaa, exMaud lo you by
Ouigaliiften F— Bio other.

[The Jnint potrrr of atlomvy lo Uohnn Per-
iBad,'Hr. HamilluR, and Hr. Lodee, it pro-
daaeiJ. AoDitxir to HoIiud Pfrvatio and Juhn
l<QTf. Anoilier U Hnliun Peraaud ainttly.
daUilfiihof Hiiy, ms, wbicU appeared la be
• (fcneial pawfTof altorney in Eagliih, with-
•at any nentioa of a cantmiMon of life per

Have yon tbc promiM of iny wim af Baney,
incaaeihe Haha ftyafa Nuiiilne>mar sbaBld
W CABvicled 00 thia Irial f — None.

Moktin Peruud ezimined id chief.

How Ions were ymi acquainted with Bella-
key Doaar— It ia Doir 14 yean hihm I flrat
luiitw him.

How loag. bai he been deadt— Aboal «
yean.

Where did foa flrat ktiMr bin F— At Uuxa-
&»ad.

When did ha come lo CaleolU f— Tea yaaii
■go.

What bMiaeM did he (uHow F— Thai of a
duoft

Wat he eateamed a nan af prapar^F— Ha
wai thought a rich man.

Had he a honae at Benarei?— He had a
correapondeDce there.

Did lie draw lor any contiilerable SUIM apon
' that bouae ? — For niaay soma. He drew one
bill Id lorii Cllve for a luck ofnipcea.

Waa llie bill paiil ? — Yea, Ibe money waa
paid lo Hr. Cbamier, then reiidenl at Be-

Waa that money ever repaid by lord Clire 7
—It was, 6Te maalba afterward*, to Bollakey
Doaa in bin life lime.

Waa there any accoant ooeo between Haba
Rajah Nundocomar anil Bollakey Doaap—
There are debita aiid credita between them ia
Bollakry Doaa's booka tu a great amount.

Are tlie booki now in beiug? — Tbey are in
■ly poanewioD.

What lani^uHfte are the hooka wrote Inf — Id
the Nagry lang'uapce.

Court. The hooka must be produced, ai
we eanDOt receive parole eTideoce of their con-

Mr. Durham, Coutiael for the Crown, ac-
quainled the Court that the books were then at
band, inconsequence of a notice from the de-
fendant lo |irnduce them, but added that, ai
they were in the Naf^ree character, he could
BOt point out the entries to which he meaut lo
hare exaroineil Mohun I'eraaud, end iherel'orii . To be
declined nakin; any ute of tbem. To be

Ibe coaoacl for tha orawa aaU «|as %k
power afalUmay ta HatMU Anuriai
nan Doaa. ucewad kw Bal(ah*r D~
BcsarM, ofwUmlMft

•■ The WvnHS sT Bou^vn Doaa.

<< BbowIUb, bmBBin' a Watato ffhaaUh,

fbr wfaicb reaaoa daaviag ■mtf.yjigtd.fc

StoBenaraa, I ban anaiMMl JBj.MlNt
)huB Panandaad PHiBahw fim^ tt-
loraiaa to traaaaet aj hMiiliifcjwJ Ui.iaaaiai
and pay, and lo anawtr and nakc'aaf doata^l
for ate, aad in payiac and ijNHaiut m^/tmm
duihar axpaooea may faaiaenrrcd, f iWjliyii)
leraldebla are collected ; and jptu^icVMraniMn
after the diibwaMMolp of tha diHfaar iiiMiiii
to ba Bud to whaen it nay hf due : ffl <f
what II due afWr that I bavawrillan maffpft
with Btjr owB band, wbie^fon will pay.

.^raoaal arAaMwr eometnu JMU.

HabaR«ahN

Dooluh ftam Twany aa aeaaant af

0«i Hnlliek . - -. .
On Ray Hohnn SJag'i I

Oolab Doia Pahria - - ■
Ragaoaat Dad Bhroft, oh hi

My own Factory at Hoonhedahad,

rather more or less - . . . looon
Poog KJstQu Don at Benarea - ~ aooO

365SBg

Roy hu Persaud's, what will remain dueU
him on aeltling' bii aceounla.

Meer CuttDlAlly, whatever may appear.

'Beaidea tbeae, whaterer imall dcbu may ap-
pear in my papera,

Aecoutttt, CrtdiU.
The EoKlish Compsiny at the Dacca FuMlJ'
Nabob jHswrant Cann at Dacca.
Heer Amoo Mail at Haugly houaei.
One bouse at Calcutta.
Oua house al Moors hedahad.
Twu houses al Palua, moiiragrd for 35W
Caja Wanyaa principal in Cbiiia con-

Tbe books were then ordered to be kept in
«Nit, tor the defendant'e counael to avail tben-
Mdra of UiflH if ibiyr ahoiUil bt abla.

hip, Goliin difn Doss - - . ". 1509
DaccaKnodiiatBrnares, valued at - lOCPH
Besiilex this, as by my papers may appear-
' - -ed flora Dr. Fiillerlon
ed from Mr. Moore

This it wrote by gufss; and, be&idei tl>^
whatever may apiiotr I'lum my papOT i*

at CaiaUta,Jar Forgehf,

up«D it Mr. Sparki
udaulal: jou will ap-

o»d of Ht«r AAniff iru Ml)) to Mr.
e band of Ibe eonrt of Cntctaarra,
th« ktrraMmah, or wrillen scrM-
«h be pve in tfae name of Mofaua
He Inak Ihe lesl

■ the VakMl:
ipluiMiDlh«.4

Rawer about it. Upon •rbtterer
•DJing balancei jou ahall recover,
eceiie fire per cent, wlialever cod-
lences you may flnil it atou:miy to

€alcurta, anJ pipen you iball re-
nre appointed you my attorney for
; irhelher I remain here or not, I
!d ynu with a power in my atfaira,
ineni of money. I am not conceni-

I nine iliya after the miiMIe of Pooi,
yeor loss. WiineiMd Ooodttarra
ad, Moiikaiii Bollakey Doaa.— Wit-
I Kluen JewlD D<>sa.~\VitneH«l
lb Dusk. Piittick, Dinrane Dntt.
I KJuseii Jew ill Dnit.— Signed Bo-
e Unas, Doi« Jero. — Sisned KJuen

■ Dora."

e tbis Inter of allDruey,
uan Boa wag called la unI (wom.
It that paper your writing ? — A, Ilia
{ Bud wiloeuiag, but I did nut lee

ime Kisien Juau Doaa, attliebot-
paper, wriiien aa a witoeM to tbe
' '* -.1 written bv wav of wiloeat.

4

me you lo put your name aa a wit-
aper \ie\.ng ai^ned by Bollakey Doia,
QDt lep liiin Bign it f— It waa carried
linn Diisalo CbandeniH^re, aifoed
laltakcy Dose, and bfouf^ht to me ;
riog bis haiid-wriling, wilncaaed it.
1 nllneu it aa Hein); it tigned, or
; hia si gnalti re ?— Seeing Bollakey
lature tu it, I set my name at a wi(-

&tTi4 Doit Pullock iworn.

know thia paper ? [aliewn letter of
— [do; it 19 apoHcrufattoruey from
Doaa.

1 see him ai^ itP— I wai preant,
ollakey Doaa aign hii name.

Croif Eiaminalion.
waa Bollakey Doaa wlieu you aaw
ia name lo it ?— At Calcuttu.
vaeP— Ilia own buuae.
hour of Ibe day P— I iloii'l know.
«<it'U present nhen it wan executed f
Pcraaud, I'uJmoliun Uosa, and Kis-
Duai. [Uueatioii repeated by (be
Hobun Pertaud, Puilmobun Doo,

tbre«olbrr people. )l in uow two
lan ago ■, bow CJin I reuwiuber i

[DM

that KiaoB Jubd Doea'a aignatnre wat to it;
mi being agnin naked if Riaaen Juan Dota wu
praaMit, uiawered be wai not.]

What dill you mean tb aay about Kineii
Jaaa Dou 7— That hia aigtutlure waa to it.

Do you know faia hand writing ? — Yea.

Did yoQ aw him ainnitf— Yea.

Wbttrewaabe?— In Bollakey Doaa'abmice.

Waa it at tbe aame lime Bollakey Doaa
signed it ? — It ia aix yeara ; 1 do not rec(4-
lect. I know Kitten Juan Doaa rigned it.

[Mr. BHiot obaerrea he signed it «nee when
b« wrote it, and once a> a witneaa.]

Count, for Pri*. Yoo hart iwora that Kii-
aen Juao Doaa aigned it, then you rauat know
whenhengned it. — ^. KiaaeniuauDiMawrota
the patoer, and gnre it into tbe tiaads af Bol-
lakey Ikaa.

Did y^ ae* it?— Bo)l«kej|Daa< pve itntfs
and deaired ue to aign it, which t acuontiBglT
did in PeraiBB.

When did Ballakey Don a%n it, bcfiiic or
after you did ^— Bollnkaj Doaa baviag ngnHI
itjgaTeit U me to aign.

Did yuu aee Kiasen Juao Doss sign tl F-~[
do not recoltecl.

Then how do yon know that he aigned
it M all f — I know nothing about bia signing it.

EiacnJuan Don called again.

Court. Wbendidyounrilelhiapaperr — A:

Harmg inapecled the papera of Bollakey Doaa

which were at Calcutta, 1 from them draw up

But when 7 — It may b« wilbb two or threa
mnnths of six yeara, 1 cannot apeak with pre-

By wboae directions and from what matpri^
did you write itP — By the direcliona of I'ud-
mobun Dost, he ia my superior; bating both
of us inapacleil Itollackey Doaa'a papera, we
drew op tliat paper.

Did yuu lake what you. wrote from the books,
or from what Pudmobnn Duns told youf—
WJiat I wrote FloDk from the booka.

If tbe books are given you, can you point
out the parts from whence you drew these
papvnr— lean.

Do you recollect liow many boobs were in

four poascsaion ?— Two hooka, called lh«
tuev Namah, and the Cotta.

Were those all the books f —Our hooks are
draxn upfrom year to year; inthosetwobooka
are the contents nf this paper.

IVerc lliere only tno buuka for each year ? —
When there waa agri>Bt deal at'buainetaio the
hoDie, tno l>ooks were filled up in a year;
when not ao much, two bouka might laal tor
fODr years.

Do you recoiled hot* many books you exa-
mined tu make up ibis account?— I li«*e hern
thirteen or finiReen yean a scrrant, and during
that litu sis hooka haru beeu used.

3P

WTJ

15 GEORGE lU.

How many bookt did yoa •xamine to make
out that paper ?^\% 6 had three books withia
the first five ^ear», one called the Kussara,
where every things is entered fully; from thence
it is entered fairer ii|to the Rdey N&mah, and
.from the Roey Nllmah to the Cotta.

from what partrcular books did yon take
this paperr-«-All the books were in my pos-
■ession ; but what is contained in this paper, 1
extracted from one book, the Cotta. It is the
<^stom to draw up papers from the Cotta ; but
the Rdey Nllmah and the Kussara bein^ more
foil, merchants frequently refer to them in
the drawing up of papers.

Are these all the books that contain Bollackey
Doss'-s transactions? — ^There are two books
more besides these three.

[The Court directed all the books to be
brought.]

You said before there were six books ;
how comes it that there are only fire now men-
tioned ?—- Ope, a Kussara, is lost ; but the sub-
stance is extracted into the Cotta.

How came you to sign this paper twice f —
One signing, which is in the body of the paper,
is because it was wrote by me ; the other as
witnessing, having seen Bollakey Doss's signa-
ture to it.

What is the first date of those three books?
—Nine years and something less than two
months from this time ; it in dated the 13th day
of Savoon, Naugree stile, 18t3. The three
books depend upon each other, and begin with
the same date.

What is the last date in the books?— The
aecond of Maug, Nagree stile, 1837.

Do the books now produced, contain trans-
actions prior, or subsequent to these ? — There
are two oefore.

[Q. to^Mr. Elliot, How does the Nagree
and Ben((al year differ? — A, The Nagree
year begins the first day of Ciioit ; there are
750 years difference between the Nagree and
Bengal ; the present year is 1832 Nagree, and
1183 Bengal.]

Are these the books from which you made
out the paper produced ? — They are.

Are all the transactions between Bollakey
Doss and Maha ilajah Nundocomar contained
in those books ? — AH the business transacted
with Maha Rajah Nundocomar at Calcutta is
contained in those books, but what was trans-
acted before he came to Calcutta is not.

Do all the six hooks you mentioned, relate to
transactions at Calcutta? — ^Two books relate to
the transactions at the army ; he was at that
time with the army at Mongheer : what was
done there was entered in his books, those are
the books not brought. Bollakey Does re-
mained with the Nabob : whatever he trans*
acted there, is in those books ; he had houses
at Moorshedabad, and other places, and at each
place there was a dlflerent set of books : what-
ever was ttausacted in those placet, waa^ in
books therv.

Trial ofMahm Rajah Nuttioc^mar, (948

How came this aooonai of the d^ili and
credits of Bollakey Doaa to be drawn up firaa
three books, when he bad separate bsoka at
different places?— What bad hia affuis else-
where to do with a atatement of hia dabu and
credita at Calcutta?

Then this paper was only a atatement of kit
debu and credits at Calcutta ?— Yea.

[Upon inspection of the Persian bond in the
indictment, it appeared to bear date in the
month of Badoon, 1182, Bengal year, wUefc
answers to the Nagree year, 18Sd.]

Mr. Driver examined.

Court, Were those the books depoaM io
the mayors court ? — A. Yes.

What other books and papers were defivend
from the Court ?— 1 have no account af ths
books and papers delivered from the Coart.

[The Court ordered Mr. 8ea1y, late register
of the mayor's court, and now register on tbe
equity side of the court, to attend with tbs
other books and papers in his possession) be-
longing to the estate of Bollakey Doaa.]

Saturdaift June 10, 1775.
Mohun Penaud examined.

Have yon the two books relating to BoRi-
key Dt>8s's transactions with the army ? — I do
not know where the two books kept with tbs
ariny are ; I never saw them*

How came you to select those three boob?
—I brought these books, because they contsia
the Calcutta acconnts.

Are these all the books and papers you re-
ceived from Mr. Sealy? — ^There are msDj
books in the chests, i had two chests of pi-
pers from Mr. Sealy ; tliey may contain sc-
counts : these three books were at my boose;
I have three other books at my own house,
which may be brought.

[The Court ordered them to be brought iia-
mediately.]

Kissen Juan Doss examined.

Do you know what are become of the other
two books? — They are at Mohun Persaoii'i
house, he has taken them out of the chest.

When did he take them out of thechest?—
Fifteen or twenty days, or perhaps a moDdi
ago.

Did you see him take them out of the chest.^
— I took them out of the chest, by Mohua
Persaud's order, and carried them to bis boose.

Did he know what they were when be di-
rected you to take them out ?-*He did know.

At what place did you take them out of tbs
cheet? — At Mr. Driver^s house.

Who were present ? — Five or six peiaoii>
whose namca I do not know ; Mr. Driver vif
not there.

How do you know that Mohun Perssnd
knew the contents of those hooka? — He told
me to taka out the books of the arvyi and rf

ai CaUulla,fir Forger*/.

A. D. 1775.

CUevlla, out of the chetti ; he then took tliein

Q. Who kepi the key of the chest ?~J. [by
J^Diftr.] I ihiiik Moliun Peniud ; itini
^^^ to OunffHliBKii, and I behcte h« gave it

t

'i ezaaiHulion DontinnM].

I BolUhe)

le hooki of the army

SI the balance
took*.

Doea thai balance contain a balance of the
Calcutta accouDta na\y, or of the Calcutta BDd
■ccoiinli? — or all the accounts; when
eniled, the baliuce wa* carried to the
rear'ii iccouots.*

e 10, 1775.
Muhun Ptrtaud examined,
did Bollakey Dois dier_In the
liof Aaaar, Nagree year, ltI36, or June,
)7B9.

I)»l Bollakey Doas make any will?— He
letl a poirer of Bltorney.

ft. Tbe Pr<^ate is the only proper cri-

c Probate of the Will, of which the fol-
g'aa Trsnllate, was read :

e Mayor'a Court al Calcutis, at Part

William in l)eD|;al.
" {L- 8.)
" Ii. M*r. Reg.
" Be it ktiiiwii to all m»n by these preapnli,
tliatoDlhreih day of September lust, 1769, the
Will ul U-ilUkcy D«w. dcceaii,d, a copy
whereof ia berennlo annvxed, whb eshibiied
and pro'eil licfure tbe court; and ndrniiiiiiira-
ttwi •■!' all and lingular the goods, rbiilirls, and
ereilils of tbe saiil drci^spd, in any wi%e be-
loiii;>i>^', nan, and ii> liervby cooiinilled 1<> Gun-
pul>i<;t^ii mie of Ihe executor, in ihe a.id W.ll
namprl, l.-'uiy lir-l awurn, *vll and truly ti
»ii»i«i« il.r K»tnr, and to pay the lawful debt*
»f till- ilei'i'iiio-d, and tbe ■■Kaciva in tbe aaiJ
Will cuuinin<-d, as far a* the |;nail*, chailelv.

* li brum luiir eleirn o'clock, the Court
■MeDoailjoummeni, but one ut Ibejudgra at
■ alway* ra<D«mnt{ in the oouri, or in a
"" " " I, aiul ftfien to tbe court, the jury

ttier adjiiininf( room, under ihe
{e (fibs ahetiff'n uHiom, tu take ivlreah-
\o »\rvy. Tli« Court mrl tbe next
It ri|(hl m Ihe tnoniintr, and prorreded
■in* ; tbe like wua dune at tbe end of
fe ihy, and al otbirr limes lu the irial, when
nibni«nl WHiinrt.«u.iry..^— [Mee ihe Cane*
Urdy, ai-d nnrne Touke, *. d 17011 ul
L 4.0. 171)0.] The reiNLiioiiofihediK
Btfw Origuial.

and credila of the said decenwd sbill extend,
he law oblige ; and also lo exbiUt iol»
court a true and perfect iurentory of all
the said goods, chaitels, and crediifl, on or b«-
''" " lix months from Ibis day ; and lo render
Ihis court a trite and just account of all tba
effects of tbe said deceased, on or before the
94th day ot'Oolnl>er, which will be in tbe year
jr Lord, 1770. Dated llie day, moDlb,
year and place above mentioned.
" Signed,
" D<viD Kjllican, Mayor,
" CoRNCLiijs GooDwLN, AldermaD."

What do ynu know concerning ibe transac-
tions between Bullnkey Doss aod Mahs Kajali
NunducomarP— Ilie accuunla af tbem are ia
the Cotia, Nagree year 1825, or 1708 Chri».

What do you know of Maht n<ijab Nundo-
coraar's transaelioni wilb Podiiiubun Ddh,
and Maba Raisb Nundocoinar's t*iih Bollnkey
Dills in hislifeiiraeF — Aboultire uiuntbs aller
tbe death of Bollikey Dom, Fudmnliun Dom
and Gungabisseo ubtaineil the Imods from tbe
Company, on ibe acoouni of Bollokey Don,
and carried them tu Maba Ilajnb Nuiiducotiiar,
In tbe evening of that day, Tudroohun Dost
informed me of ibal circum stance. I then
shewed Gungabliseii tbe iiuwer of atlurney
granted lo me, and wbirb I b^id belure elu-wn
lo him, in order In prove lo birn ihol 10,000
rupees only were due to Haba Rajah Nundo-
L'Oaisr) and ihe ilay al\erwnrds. I weui U tba
housr of MaliH Rfljab Nunducumar. He d»-
siieil me lo sit duwu, and Mid, The Company's
bonds arc received ; some durbar txpeocei will
arise on tbem. I auswered, I um on aliornry ;
10 whom ecer money la paid, Iheir names miut
be writtaa down, and filed in Ihe audaulel : to
which be auBwered, Whiiislhat to yoa? I
will do it. I then went to my oh n bouse:
tiiur or fire daya alter, I relurned tu Maba
Btjuh Naodocomar : he asked uie if Pudmo-
hun Dnas bsd spckeg any wurd* to me : I an-
swered, No: he iheu said. I and Pudmobun
Doas have drawn out (leekkeeab) three papers;
the auiouDt of one is 48,031 siu-a rupreii ; ilia
aoiouni of tbe other two tog-^hvr ia 35,000
srcol rupees. 1 remained silent, and soma
little time after went buine. Fourteen or fif-
teen davH after, Pudmobun Dusa *sid lo me,
I Come aloo^ wiih iiie to the bouse uf Maha
Rajah, and take llie Company's bands, wbkh
I he has received. I with t^utigalNsaeo aud
I Piidinoliuu Dms accordiii){ly went thiiber : il
I was iilgbt time, tbe lamps were burning, and
. Ihe Hsba Haiah was sitting alwve alaini : we
sat duwQ by him, and IVInba Kajsh called for
his eicrutuie sod ojiened it, and took uui all lh«
psjiers that were conlaiued in II, and spread
■hem >»'l<>re him : he cancelled (by tearing tbe
(up) a Nsgree bond Ibr 10,000 rupees ; be alao
produced llie polia of tbe house anUgBve the
rAncelled huiid and the polla into the hands of
tiuDgabwacii; be likewise Urc tba baaiU of

951j

15 GEOBGi; III. Trifil ofMaka Rajah Numlocamar, [%3

three PenriaB papers, and wM te Gungabifmi,
Do you Uke these.

[Bond shewn him.]

Is this one of the pspers he canodled ? — I
4\d not then koow what the papers were, I
cannot read Persian ; this is one of tliem. f
have since informed myself of the circum-
stance : at that time I could not tell, I now
know that'll is for certain. After having torn
the tops of the papers lllaba Rajah ffundoco-
mar offered them to Gunfrthissen, who said,
Give them to Pudmoliun Boas. Naha Rajah
then looked at nie sideway anc^rily^ and turn-
ing to Pudmohun Doss, said, Do you take the
papers. Pudmohun Doss took tbem ; Pod-
mohuo Does and Maba Riyah kept coontiog
by their memorise some sums of money on
their fingers, hut wrote nothing down. Maha
Rajah said, I will take eig^ht oonds: having
sefiarated the other seven, he put them into the
hands of Pudmohun Doss; there were ori-
ginally nineteen honds ; the governor and
oooncil took two, on account of commission
due to one Michael ; the other seventeen were
given lo Maha Ri^h. When be gave the
seven bonds to Pudmohnn Doss, he said. You
have before taken two: be answered, I have.
Maha lUiah said to Pudmohun Doss, Indorse
the eight bonds I have taken : Pudmohun Doss
nnswered, I will get them indoned by Kissen
Jnan Doss, the GomasUh of Bolkkey Doss.
Maha Riyah put the eight bonds into tlie hands
of Choiton Maut Poddr. I, Pudmohun Dsm,
Qungabissen, and Choiton Naut, (into whose
hands the hoods were put) went out together,
and sat down in my bbaita kbanna (sitting
n>om) Pudmohun Doss sent a man lo call
Kissen Juan Dosa Kissen Juan Doss arriv-
ing, indorsed the eight hoods, and Pudmohun
Doss gave them lo Choiton Naut Podar, who
carried them away.

Do you know oif any receipt or acknowledg-
ment for those bonds ? — I was -at that time
confined in tlie court of Cutcherry: he
never wrote, or signed any receipt before me.
Pudmohun Doss took a receipt from him, but
i do not know when he got it. [Paper shewn
to witness, marked F.] This is the receipt : I
hnow it, because I took a copy out of the
mayor's court.

Are you sure tliis is the original ?— J do not
read Persian ; the Monshy took the copy by
nv directions.

Do you know of any furtlier transactions? —
I know a deal more of liollakey Doss's busi-
ness, but not of these eight bonds.

Did anv ccmversalioii pass between you and
CofiiiiiaulO'Dien Ally Cawn about this trans-
action P — fiSome money waa due from Coraroaul
O'Dien on account of Boltakey Doss ; I did
not know what the amount was. Coiiimaul
O'Dien sjdd it was about 600 rupees : I then
said, Pny it to me : the demand was made three
or four different times. Conimaul O'Dien one
day came to me at my house, and said, I can-
Bot pay tbii money, i have none. I then

shewed him oopicn of the different pi^Mn 1 bad
taken out of the court, and desired bim to leak
at them: he read them, and having raid them,
said, This ia the iapreasion of my ecnl ; when
this paper (hkknt) was written I do net knovi
the name on the seal is mine; where, or when
the paper was written I do not know, I am not
n witness to it. About four, fit e, or aiz waaHis
afterwards, Commaul O'Dien eame to me and
said, Maha Rajah Niindocomar ia security lo
government for me, for the pergunnnh of Hid-
gellee : he says to me. Do three things, and I
will be and remaio your security : with respect
to the bond of Bollakey Doss say that yon am
a witness, aid having sworn before the gentle-
men of the adawlut nve evidence of it : write
out also an account of receipts of money (Buh
rftmud) agaiost Mr. Lushmgton : write oat
likewise a fiurr^ud against Bassent Roy.
Commaul O'Dien told me, he then answereo
that he could not speak away his religion : iff
can get any one else to stand my security, I
will give up all thonghts of him. I at tbit
time sent for Mahomed Allnm, who Uvea three
doors from the hooee I inhabited, in a basse
belonfifing to me : he came te ose, and 1 Isli
him all the Maha Rsjah had said to CommasI
O'Dien, and likewise told him CemsMel
O'Dien's answer to Maha Rajah NuodoctflMr}
I likewiae said te him

Court. W hat you said to Mahommed Alloa
ia no evidence.

Do you know if Bollakey Dosa could writs
Peraian ?— He neither could read it nor writs
it, nor did he nnderatand it well.

Did you ever aee him ecxeeute bonds or other
papers? — I have seen him. Soroetiines be
wrote the bonds himself in Nagree, sometimei
in Bengal, but always signed them with bii
own hand : he did not write the body of the
bond wKh his own band, for he could not writs
Bengal.

How did he execute bonds ?— -He ahvnys pul
his sign manual to a IhmkI.

Court to Mr. FMiot. IVhat word does he
use for bond ? — hnmasook, which is a Persian
word ; it is khut in the Negree language.

To Witness, Did he put any thing besides
bis sign manual ? — He put his seal to letters;
J never heard a|' his |MUIing hia seal to obliga-
tory papers^ on which money waa to he rt*
ceived.

What is tlte ustuil manner of Nagree mer-
chants executing bonds ; do they put their sign
manual, or seal'?— -At Agrah, Delhy, LihoR',
Guzerat and Surat, it is the oustom ii' ShroA
to get the body of the bond wrote by tbsir
Gomastahs, and they sign it with their ona
hands.

How do Nagree merchants and Shroffs h
Calcutta execute bonds ?-~ Shroffs in Cakntli
sign a bond, and do not fix any aeal.

Cross Exuniination,

Whece does Gongabiisen now fire f— b BJ
house.

WSJ

^ CakMAyfiKr ForgefSf.

A. D. I77&

Uom iMf km he lived tkere?r-ll flMgr b«
two years ami a half, or three yeare.

WW aft is he, aad m whataUto ^ heahh ?
—1 4o Milaww hU agaexaetly, he ia a y^iuig

Has he aay particular infirnuty yon know
of ?— He haa heen sick aomethiog ahove two
T«ara; be waa at fint Tcry yi, Iheo ifot betler ;
he it BOW worae.

How lang is it since be relapae4P — How eao
I tell whea he becaoie weraeP He is not a
fijriog maa, but very iU.

How do you kaow that be has got worae ?—
Beomse he is in my house, I see him e? ery
4iw.

• When did be ipet better ?*— I cannot ascer-
tain that date so exactly to commit it to
writing.

1 do not ask the exact date ; will you tell it
aa near as you can ?— Some days he has lio*
l«Dt porgings, at other timea he gets better ;
it sometimes continaes upon him tor ten days,
more or less.

Court. Gif e a positifo answer to the qoea
lioo f— il. I eabnot tell.

How was he ysterday, how is he to-day P—
1 do not know, 1 was here all day.

Woold not you have beard if he bad been eo
yi aa not to be able to come out P— I beard no-
thing of him last night, he has not for a long
timo been in a atate able to go ont of the house ;
soose time ago be went twice to the court booae
to sign pepers.

Can you particularize the time P—About a
noMb or two months ago, I beliofo ; I caniiot
tsU exactly.

Has be ever been out since he was last at
tha court bouse ?— He has never been ont of
bio bouse since tbe time he came to the cenrt
boose to sign the papers.

Has lie since then been so sick aa not to be
aUe to go ont f — He is so weak that he has
been obliged to be held up by people when ho
came out of the house.

Can any person that wanted to see bim have
access since be went to tbe court boose? — Any
person having business has accem, several have
seen him since.

Who has seen him? — I do not pot a walcb
orer him ; how can I tell who has seen bim ?

Mention one that has seen bim?— Kissen
J«an Doss, Haul Govin, Kirib Dees Pattuek.

Do you know any more ?-~A great many
people have seen bim besides ; any body that
wishes to see him may.

Camrt. Nsbm some others ?—Momc Chad
Baboo, tbe eon of Huzsymoll, Jsggcmait
Dugonaut Duboo.

The counsel for tbe prisoner, suggesting
that Gungahissen was under confinement, and
not so ill as alledged by the witness, the court
wquested Dr. Williams and Dr. Stark to exa-
mine Gungabissen, and report to the court whe-
ther he could safely come out and give evi-
dence, or not

O. y oa Md BoUakey Doss drew a dnuight

OB Benaret in favour of lord CKve for a lack
of rupees. Is that transaclion in those books ?
— iL his.

Court. How do you know it waa paid P— •
It appears in the books, a receipt waa trana-
mitted from Benares, and lord Clive paid tho
money.

Can yoB find it out ?— I caa.

Mohun Persaud and Kissen Juan Doss exa-
mined the books, and found tbe following entry.

Kiuen Juan Dois, Tbe particular acooont
of this transactMn ia in the Rosenamnsa.

Emtrt reod.

<* The cotia written in the name of the Dewea
Nabklssen.

Its.
Debit side, pagodOS • . • • to.OOO

420 ... . 100,000
498 ... . 7,000

Making in the whole . . 197,000

0

0
0

0

Credit side, page 447 .... 33,517

429 ... . 9S,48S

8
8

197,000

0

Cotirf . Gife a translatkm of the Rosenamma,
page 424.

" In the BBBM of the Dewan
Nobktaaeo, 14 Mang, 1829, (Sa-
turday 1st of August) .... 90,000 O

Particulars u follows

Psid by Dnkee Ramaeil . . 14,600 O
10,000 of which waa paid oo tbe 9 let of Fa-
gUB, and 4,600 on the 94th day of the same
■lonth."

Court, hook whether there is aay mentloB
of the lack of rupees of Banaris in tbia page. .

BIr. EUiot. We are uot.now upon the fa^k,
but upon tbe 20,000 rupees.

Dr. Williams and Dr. Stark returned from
examining Gungabissen. and inform the court
he was so ill that he could not pussibfy attend.

Xiticn Jumn Don coBtames nading from tho
Itosenamma.

«• P^ge 494. In tbe name of the Dewan
Nabkisaen, a letter of credit (sefanrush) hat
been written upon Brid^ Mobsn Dosa aadl
Curbick Doss, oo account of lord Clive, andl
paid 10 Mr. Cbamier at Baoaris, lor which a
reecipt was given on the 5th day of Cbyte, obb
lock of sicca baulee Banaris rupees."

Hlohun Penaud cross-examined.

Whose properly was the OMraer in that ac-
count? was it beiooging to BoUakey Dosa, or
tbe boose at Banaris?— How shevid IknowP
It will sppcaria the backs.

Has any notice been served upon you bw
Mr.JamtP-^Yes.

Who were tho witnenca to tbe baad yoa

955]

IS GEORGE III. TriMt ^Maha Rajak Ntmdoeomar, [968

•ay it a falie one? — Mahomed Gummal Sela-
but, and Matob Roy, 1 beMew^

Do you know or can you g'lwe any account
ef Matob Roy ? — 1 never knew, aaw, nor beard
ef Matob Roy ; I may have aeen onany people
ef that name, that I do not know.

Do you know SeUibbut f — He was of the
same cast with me, I knew him well.

Where is he P— Dead.

Yl here did he die ? — In Calcutta, in the
houie of Bollakey Do&s. Bollakey Does was
then \mng.

How U}ng before Bollakey Dois's death? —
Bollakey Doss dieil in 1826, or 1769. My
house and the house of Bollakey Doss are
Bear.

How longf before the death of Bollakey Doss
did Selabut die? — I cannot tell exactly, he
died some time in the year 1823 of Nagree,
1767.

What was Selabut ?— He was a Vakeel of
Bollakey D«>Mti's. I knew him well, be came
to CaU'uiia before Bollakey D<»Sf) : he was an
Aiera Walla; I never eat rice with him, nor Me
with me ; he would eat rice which my servants
dressed.

Wliat was Selabut's usual method of attest-
ing: papers as a uitnrsti? — 1 hate seen him
frequently m ith my (»wn eyes take off his seal,
wet two or three papers, and fix his seal to
them.

Was not Selabut bred to some kind of busi-
ness with Bollakey Doss ? — He was Vakeel of
Bollakey Doss, and executed whatever busi-
ness he onlered.

Did he write Nagree? — I never saw him ;
he wrote Persian in my presence: he has also
fixed his Persian seal m my presence ; I have
DOW in my possession writings of his.

Were Bollakey Do^s and Sielahnt of the
same cast? — They were both Ag^ra Waliss,
but I do not know if of the same cast : by
Agra, I mean the place he came from.

Court, Was he a Nagree merchant or
shr«)ff ? — A. I do not know.

When did you know, according to }onr own
account ; or when did you suspect this a false
bond ? — After the bond had been gircri by
Maha Rajah Nundocomar to Pndmohun Doss,
and I had read it, then 1 imagined it to be
forged.

Was that the first time ? — From the day on
which Maha Rajah Nundocomar mentioned to
me Durbar charges, some doubts arose in my
mind.

When was it that yon first heard mention of
the bond ? — I never heard of it till Pudmohun
Doss shewed it me. Maha Rajah Nundoco-
mar had mentioned a circumstance of three
papers, hut had not specified this bond.

Vvbat were those doubts you mention?—
That the Durbar charges were not just and
fairly charged, because I knew Mr. Verelst,
Mr. Cartier, and Mr. Russel bad not received

Wss any mentioD made of tbeir names? —
Th^ BMMi were jMt meutioued, but Mr.

Verelst was governor^ and Mr. Cartier was se-
cond.

When did yoo flrrt bear of Dinter ex*
peoees ?— When Pudmobuo Doss bad t«M im
of the Company's bonds, I went the aext day
to Maha Rajah Noodooomar, and then heard
of the Durbar ezpences. 1 heard it befcia
from Pudmohun Doss, who had meotioaed
some circumstances oonoemiog Gocol, Gosaol,
and NobkisaeD ; and he said, Yoa must prepaia
a jewel, and then the geDtlcmeo will pay yea
vour money. I do not remember iMviag
beard an v thing else ooooeniing Duihar a*
pences, before i beard it from Blaha Riyah
Nundocomar.

Who were present when thoae papers were
delivered ? — I, Gungabisaeo, Pudmohun Deei,,
and the Maha Rajah. Choitanaut came in Is
receive the bonds ; a person of the name ef
Goossud, by the orders of Maha Ra^ah,
brought a little escmtore. I saw no one cfas.

Can you take upon yon to aay there weie as
one else ?— How can I say there waa no eai
else ? 1 saw no one elae.

If there had been any one eke, sbooM yaa
have seen him ? — We sat in the dhalan (halQ:
there uas no one present bat those that had
been mentioned. When Ghiosaad came ia, wai
had delivered the escrotore, Maha Rajah seal
him away.

Were von three, Gnngabiasen, Pudmobm
Doss, anif you, ever at Maha Rajah Nimdeca-
mar*s house at any other time ?— Frequeatlyi
together and separate.

Mention the time. — 1 used to go every day,
I cannot mention any particular period whea
we were all together.

Can yoo tell me if at any other time papas
were produced ? — I never saw him at any other
time take or t^ive papers relative to Bollakey
Do88*s estate.

When yon saw the papers at Maha Rajah
Nundocomar's, you knew not what they were;
how come you now to know the bond to l»e ooa
of them ? — Maha Rajah Nundocomar put tbit
paper in tl>e hand of Pudmohun Docs : be
tore it at the top ; I did not read it at that
lime ; Pudmohun Doss afterwards brought it
to me, and explained it to me as one of tbt
three papers.

Court, Are there any other circnroataoces
by which you know it ? — A, There is aha
this circumNtance, that 1 knew Bollakey Dom
did not owe Maha Rajah more than 10,000
rupees.

Did yoo ever see Bollakey Dosaexecoteasy
bond ? — I never did : was I to see hia baa£
writinjr, 1 should know it.

[Question repeated.] — I saw him execnie a
bond for 1,000 rupees.

Court, Were you intimate with Bollakiy
Does at the time of the wars between Jaffitf
Ally Cawn, and Cossim Ally Cawn? — A, I
have been acquainted with uoUakey Dom U
or 15 years : we corresponded then.

Did yoo ever hear of any jewela bdoagjae
to Maha Rajah Nnndocomar, bcii^ depeilM

at CaleiitU,^ Forg^.

SOT]

wMb BoRtkay Dasif — I mcvm did. I wu U»-
Kctber with NobkitMn when be inboduceil
BollaktT Don to lord CIitb.

HtTB yoa diicwered any nuterial tranne-
lioB of Ballikfjr DbN, esc«pt ihii boitd, which
be did Ml tell jou oTf— Bollakey Dou uwJ
Mot to iDfi)mi DM of all be did.

Do you recollect beio^ at Hr. Driver'a
booce aone tima ago, and takiog away tome
booke of Bollakey DoM'af— 1 took theai,
[poindng' to Ihe booka prodaced Id coort.^

Who wai preteol. vrhni ynu took IhemF
— Kiaaeo Juan Dom and Hr. Drirer'a aircir.

Did KiMcn Joan Dob toke them from the
cbeat, or did you toke them f — He did.
- Did yoa tell bim the booki by name?— I
daaired him to look iato the booka reapeclii^
as account of RoBoo, and alao into Ibe Calcutta

booka.

Did you a»k for any other booka t—l did

BOI.

Did you not aik foi- tba army booki T — I did
Mt poHiralarly mention the army booka, bat
deaired bim to look far tba booka of Bogoo'a

Are ibe booka cooceming Rogoo Ibe army
booki f — 1 do not know wlwtber it wai entered
in the army booka or no.

Do you now know, whether R^oo'i ac-
coanu iain the army booka or ooF— 1 hate
Ml looked into the booka.

Don't you know there are booka oalled army
booka ?— I do Dol know.

Do you know whether, among Bollakey
Doaa'a book*, there are any thaimlato totraaa-
Mtioaa at ibe army P— I bad notaeentbe booka
before, when Kiaaen Juan Doaa brought them
to nay home, and axaouoed tbem.
[The Bond prodnced.]

Ceuntti for the Crown, la thii one of Ihe
ibreo papers you law Haha Rajah Nundoeo*
■Mr tear, anddeli'er into the handaof Fudmo-
bMDotar— J. Yea.

Wia there tnooey paid on thia bond f— The
Company*! bonda were Iherenpon indoraed to
Haha Rajah Nundocumar.

Did Haha Raj*h NuDdocomBr, before lliii
tranaaelion, before [he three met, when the
bond waa delivered op, arer mention to you hia
boring aucb a bond? — Msha Rajah Nnndooo-
■ar told me, that he and Podmobiio Don had
rirswB op tbeae three papen, one of the papora
Ar 48,031 rupeca, and two papera for Sj,000
npeea. GunEabiasen waa not preient

Court. Where waa the bond fouudF— It
waa depoaitrd in the mayor'i ooarl, a* part of
the eatale of Bollakey Dnn.

Wbeo Haha Rajab Nnodooomar told yon

ifaal he had drawn up three paper*, waa Gun-

mt f— He waa noL

Court. Look at Ihat paper, [Bond (hewn
bin] waa it among the papera belonging to
BriAhojDoM?-! Itwat.

J3.- rm

WaaJt torn Ibaar— ft wai.

Are ^on enough acquainted with money
Irantaclion in ihia country, <to know wbelber
that i« the ciwMmary way of cancelling bonda T

ffaa Ihta paper dditered with other papera
bekmginff U iho calato 7 — I do not know. I
waanottnen Regiaier; It waaoncoftfan papera
that waa delirered to me aa belonging to tba
eetote of Birilabey Don.

R^ak NiAkiuen examioed.

Do yon know whoae aeal thia ii* [Paper

produced.] — The name upon the seal la Maha

Rajah Nuudocemar. It appearaU be hia leal,

1 cannot tell who affixed it

The Paper, of which iLefollawingiBm Ina-
aUto, read by Hr. ElUoC

" [Nundocomar Bahader Maha Rajah.]

■■ Formerfj the jeweli belonging to me wo*

depnaiied with Seat Bollakee Dmt In ib«

Bengal year, lira, he gare roe a bond ai tba

Taino thereof, for the aaro of mpeea 48,031,

I baring delirered o*er the

Seat I he paid all together the aom of curreoL
mpea* 60,030. in bonda of the Engtiih Cam-
pony, which ii the amount of my demand,
at principoj, preaiium, and batto.

" Written nn the 4th of Haug, in the Ben*
gal year, 11T6."

Cotirt. la the affixing a aeal, the manner in
Ihia eooutry ef authenticating papera F—J.
There are tntBe iorte i^ cuatotna in tbia conn-
try. Firat, for money matUra, merdianta
among Ihemaelrea aign and wilneu, but do not
leal ; that ia, the Bengal and Calcutta mrr-
chauta. Second. Among Mogul HuaiolntcD,
who know DO character but PerM«u, tber writ*
' Alaubd,' and aet their aeali. Third. Ooreni-
irfenl affiiin pan by aeal, without aign manoal
oT any kind.

Ii tbeapalicationof aaeal auffident to aocb
a paper aa iWF [Shewn Receipt, letter VJ~~
Ai one might know Nagree, and the other Per*
*i*n anil Baogal, anoh a aeal might be auS-
dent. Thii paper being only a racdpt, a aeal
ii auffideot. Toe word ' Alauhd' ia not neetU
ful in thia eaae.

Ia it neceaaary that inch a writing aa Ihli b«
confirmed by witneaa?— It ii not neceaaary.
[Tranalato of bood exiiibit A. read.]

Tiie Priaoner dceired ba might ai
Nobkineo a queatioD.

Court. Let him conanh hioonuel beforo
he aik the queation.

The qiieation being orer-heardby NohkiaaeOi
heaaid, " Haha R^ab Nundocomar bad heller
not aak roe that queatioo." Upon wnicb Nua-
docomardedincil Biking thequeition.

Court to Jury. You muit receive no pre-
jwlico from thii; yea nuat forget thn ano^w-

( Rajah

959]

15 GEORGfi HI. Trial tfMaha Bofok Numiocomar, [060

tatioD, and jud^oolyNby theevidenoe at the
bar.

The jury said they would only judge by the
efideoce.

How knif did yov know Bollakey Dom be-
fore bis death ?— 1 believe, three or four yeara,
wheo lord Clive was goremor.

What was Bollakey Doss*8 buflineaB ?— He
was not then in any business in Calcutta.

Were you intimate with him ? — I was very
well acquainted with him.

What was his general character P— A very
honest man.

Did yon know Pudmohun Doss ? — I did.

Do you know any thing of Bollakey Doss's
ctrcomstanceb f — f±e was reckoned a monied

Are you acquaint^ with Bollakey Doss's
manner of executing bonds ? — I know nothing
abont it.

Moonskey Sudder O^Dien examined.

Did yon know that seal ? [Receipt exhibit
F. produced.]«-The name of Maha Rajah
Kondooomar, Bahader, is to the seal. I fre-
quently^ when I was Moonshey to Mr. Graham
^IL Burdwan, had occasion to see the Rajah's
seal; this appears to be his: as an oath has
been taken, 1 have only to say, that it appears
to me in my mind to be the same : I believe it
to be the seal of Maha Rajah Nundocomar.

.Is the application of the seal alone, without
the word * Alaiibd,' deemed sufficient authen-
tication to such a paper? — It is proper tliat a
i^eceipt should be signed.

Yon are asked if the seal alone is suffi-
cient authentication. What is the custom ? Is
it generally esteemed sufficient in a country
court of justice? — This is what 1 think; a
roan of rank, whose seal is well known in the
country, and is known to above ten people, it is
a sufficient authentication for such a person
as this. If the chief person of the court is nut
satisfied, he can call witnesses and swear the
person himself.

Have you sat as a judge in a country court ?
—I was once a Duron^^h of a Cutcberry at
Burdwan, under Mr. Graham.

Would you, as a judge of the court of
Audaolet, admit the authenticity of such a
paper, supposing the identity of the seal to he
acknowledged, witbout the assurance of the
person, that he bad sealed it himself? — I would
call witnesses if it was denied ; 1 would call
witnesses and oaths.

To what purpose ?— I would enter into a re-
gular trial, to prove if his seal had not Iteen
stolen by his servants, or whether it was a
forged seal.

Saboot Fottack examined.

Were you acquainted with one Sielabut ? —
I remained in the same place with him, from
the time 1 was ten years old, till he died.
When we were at Delbi, our houses were sepa-
nied ; at Mongheer and Cakutia we lived to-
t

getber in the same house : Sielibal Ma Yaluil
to BoUakee Dess, and wrote Persian for him.

Have you seen bim write ?— J always nosd
to see Um write.

Do you know his hand writing f— •F^rfeelly
weU.

What name is upon thia bond? — That of
Sielabut, Vakeel to Bullakee Does.

Is this the hand writing of 8ielabat ? — No.

Can yon take upon you positively te swear
it is not bis hand-writing?— I can swear it.

On what grounds are you so positive P— I
am well acquainted witli the form of the letters
of the hand writinii in my possessien.

How did Sielabut use to attest Persian wriU
ings ?— He used to witness and put hia aesl
nnder it.

What do yon mean by. that expresstoo ?-•
Writing the word ' witness,' and putting has
seal under it.

Have you seen bim attest any paper?— *l
bavei seen him very often.

Did he write better or worM than the paper
ahewn you? — This is a better baad writing
than Sielabut's.

Did be write a good or bad hand P— He wnte
rather a bad hand.

Whose hand writing is that? [A Paper pro-
duced.]—The hand writing of Sielabut.

Do yon discover Sielabut's hand writisf
among these pa|>ers ? If you do, separate tbeii
from the rest. [More papers produced.'] — ^Thtre
is not any of Sielabnt's. hand writing amoqf
them.

Is there any of his hand- writing amoef
these? [More papers produced.] Thbse three
papers have hia hand- writing. [The three ps-
pers were put aside, and marked G.]

Have you any more papers of Sielabut's
hand- writinc^ ? — '[ have none.

When did Sielabut die ? — Six years and thr«€
months ago.

Where did he die? — In an out-house nnr
the dwellinir. house of Bollakey Doss. It wis
a Bearer's house.

Were yon present when he did ? — I wss pre-
sent.

Cross Examination.

Where were you born ? — At Delhi.

When did you first leave Delbi P—Aboot
nine years ago.

Where was Sielabut horn ?— Sielabut waa aa
older man than roe when he died ; I canoot (dl
where he was horn.

What cast was Sielabut ? — He was an Agr>
Walla, and a Banysn.

What cast are you ? — A Bramtn.

Are there any Brainins among the A^
Wallas? — They are hII Banyans.

Where is Agra ? — Agra is a village, or low»f
in the pergunnah of Uussaul.

When did you first see Sielabut?— I »»*
him first at Delhi, but do not recollect when.

How okl were you when you firrt ssw Sicb-
but ?-— Ten years old..

When you fuoii saw Sklabut, upoB what ku>

961]

at OdailUtttfor For^rj/.

A. D. 1775.

[m

■aaesi did he oome to Delhi ?— He acted at that
time as Vakeel to the Kin^^s Woiocky, cavalry.

Id whose serrice are jfou now ?— I am iii.no
hody's service. I carry oo a little business of
my own.

Upon what occasion came yoo to live with
Sielabut?— When Sielabut sprved the Woliaky
troops, I was a servant to him.

Vrliat service coulil you do him aKhatag^f
•"-Persons of five years of age enter into the
service of merchants ; , I m as ten years of affe ;
I did whatever he bid me, assisted him in nis
trade, went of messages, and gave answed.

How long did Sielabut remain at Delhi f—
Be left Ddhi with Mynhier 0*Dowlah, into
whose service he entered.

Where was that? — I do not exactly remem-
ber, it may be about 14 years ago.

Did you leave Delhi with him ? — I did not
go away with him : my father did.
. What employ had your father under him ?—
Be did not serve Sillabut, be was above being
in his service, ^

How came you first to Calcutta ?— I came
to Sielabut.

How came your father above serring Silla-
but, when you did ?— 1 served him in a parti-
cular manner : he left much business under

When Sielabnt executed any paper of his
own, did he put his seal, or signature ? — When
he executed deeds of his own, he began, *' I
who am Sielabut/' and fixed his seal to the
deed.

Did you ever see Sielabut sign or attest any
paper instrument ?-- When 1 and Sielabut went
10 Jaggernaut, Bollakey Doss paid him some
money, for which he gave a receipt ; he put a
ssal to it.
How old are you now? — Thirty nine years.
How long did you live with Sielahut at
Delhi ?— 1 was with him when he was Vakeel

^ to the royal cavalry, to the Nabob Buckah.

^ At what different places were you with him ?

-^l was with him at Delhi, at Bnuneeheuvon-

f put, which is the jaghire of Naggeer Polly wb :
I was with him in the Nabob Sujah al Dow-
lali's army at Buxsr. Sillabut came to Cal-
cotta with Bollakey Doss, and I went home :
he went from Calcutta to Jaggernaut, from

0 wbeace he returned to Calcutta, where he died.

Have you been with him at any other places ?
Ik 7—1 have been at other places with him on a

1 journey : I have liveil with him at the places I
have mentioned, but no other.

t Court, Were you with him at Moogheer ?—

-4. I was nut atMoogheeri nor was he there,
^h«t I know of.

How came you to know the situation of this
house at Monifheer ? — 1 know nothing of his
hoQse at Mongoeer, nor have I said any thing
*b©utit.

How come you to say you lived at Mong-
heer?--I did not give such evidence, that I
'ivfd at Mongheer.

[Mr. Jacktion observed, that the witness
*^ade Que Off the word lutcar (camp) and Cal-

?0L. XX. . .

cutta ; which Mr. Elliot ioterpretedy Calcutta
and Mongheer.3

Mr. Elliot. 1 have frequently interpreted
army and Mongheer as synonymous, because
the army was there.

Haveyou understood this witness perfectly f
—Mr. JE, I have not all through undcr8too«l
this witness so easily as the others, though by
a repetition of the questions I perfectly under-
stand what 1 interpret. His Moors is higher
than what I am used to.

Mr. Jackson. 1 perfectly understand this
man ; I learnt my Moors by residing two years
high in the country. I did not so perfectly
imderstand Kerree Doss Pottack, the father,
from whom I interpreted last night.

Cour^ (to Mr. Jebb.) We are informed yofl
say, that the witness Keree Doss Pottack itid.
not understand the interpreter, Mr. Jackson,—
A, Keree Doss PottacK ■ told me last night,
when he went from the bar, that he was con-
fused : T told Mr. Driver, that he did not un-
derstand the interpreter : I collected this from
what the witness told me, not from my own
observation.

[The Counsel for the Crown attempted to call
Keree Doss Pottack to the matters deposed
by Subboh Pottack; which wasopposed by the
Counsel for the Prisoner; and Mr. JusticeCham-
bers being of opinion, that the contradiction
upon his evidence was such that he ought not
to be believed upon his oath, the Court refused
to suffer him to be caileil.]

Rajah NobkitMcn examined.

Did you know Sillabut? — Yes ; he was a
Vakeel and Uunshy of Bollakey Doss.

Are you acquainted with his hand-writing?
—I am ; I have seen him write many times.
[Bond shewn him.l

Is this the hand-writiog of Sillabut?— The
words *< Sillabut, Vakeeluf Bollakey Dosm^"
are not of his hand- writing; it is not his com-
mon writing : 1 have seen several papers of hii
baud -writing.

Can you take upon you to swear it is not his
hand -writing? — Sillabut has wrote several let-
ters to me and lord Clive, and has wrote several
thiii(>^' before me : this is not the kind of writ-
ing I have seen him write ; but God knows
whether it is his hand-writing or not.

What is your opinion about it? — ^The pri-
soner is a Bramin ; I am a Coit ; it may hurt
my religion : it is not a trifling matter ; the life
of a Bramin is at stake.

Do you, or do yon not, think this the hand-
writing of Sillabut ? Remember, you are upon
your oath, to tell the truth, and the whole truth.
— I cannot tell what is upon my mind on this
occaKion about it.

Why not? — ^Tlils concerns the life of a
Bramin. I don't chuse to say what is in my
mind about it.

Did Sillabut write a better, or worse, hand
than this ? — ^The letters on this paper are well
formed : those of Sillabut ace not badly formed,
but are not SO good as these. [The pspera ar%

^dS/}

lSGT60ltaQt m, TrktefMSa* Si^lAmthettmr, fm

■MM'B buB wnktb iMfo tiMim 16 ra9 pNiMf
iritacfiii for the pnrpoM of leleoliiif thboo
wliicb were fke hand-wrtfiny of MMmI t he
utodiediatel j ftxm ott the iBraMnnert b<Me
proved to be the hand- writing of SnwbalO

\Wiinm. Theie three Are the beiid*#riaag of
Snabut ; 1 een find no other pepera of nia
' writing among theae.

Did jroa ever aee theae paperi WtbreP—
Never in mv lift: I neverwaainaiiob AcMiae:
I wonM rather loae a great amnefiftoiMrfthiUI
belnaochaeaoie.

AraiaMi AH^ esamined.

In wiMiae aerviee are joof-^Iam aaarvaiit

la Commanl (Vdlen Ally Cawn.

. Bow hmg baveyoii Men h» aarvant f-^Two

jjaarathhibHlttioie: I waa fbrmerl j in hia aev-

n0a» and qaitted it, and returned to him again.

While ^oa were in his aerviee' did von evef
raeaive directiooa to atod a Mi to Hana Ri^ah
NandooooMurP— I liad direetions: it waa the
aeal of Commanl O'Dien Cawn : hot be waa
aotat thbt ttoMcalled C6mmaiilO*0ien CawD|
bvt Mahooicd Commanl.

DifLyea aeod the nal in eaMaoneBee of

MO meotioBa f-^I peeked the aeal m a hag.

Waa there any tbmg pnt in the bag beMea
Hf— I aewed np the liag with my own hand :
in it I put three gold oMmeera andeightmpeeay
baaidea the aeal; and delivered it to Commanl o
Bien Cawn, who aaid he intended lo aeod It to
ilaha Ri^ Nnndooomar.

yoQ aee the bag afherwarda?— Never

* Have yon aaen the aeal since P—1 have not
Did yon aend it away, or did Commanl o
Dien CawD aend it f— Cnmmaol 0 dieii aent it ;
I did not.

Crou-Egmmnaium,

Do yon know Commal o Dion's MnnahyP —
I do.

How b he called ?— Cordon Nowaa Cawn.

Do yon know of liis being applied to to give
evidence in any cauaef — Yes; Cnmmaul o
dien Cawn applied to him to ^ve evidence in
the affair of Blaha Rajah Nondoo6mar' and
Mr. Fowke about the arzee.

Did he use any iDdncement to peranade
him ; and Ivhat?— I know nothing of any*

What Mssed on that occaaion, to your know-
ledge f— -I do not know of any thing that
paased.

How do you know the Moonshy waa ap-
plied top— I know that he waa applied to. be-
cause he actually went to the bouae of the
Lord Chief Justioe, to give evidence; I have
heard Ir9m many people.

. Do you know of Cnmmaul o dien Cawn*a
•flfermg money to Cordar Nowaa, hia Monaby,
to induce him to give evidence?—! do not
know of aaj aoch o&r.

Do jon know one Blahomed WisaeDt a seal
fotterr— Ida*
,Do yea know of bb hmkm been ivplbd
ti to |be ovidaMiM * iMtaw « hb

had cMtt a aial, ef whM he
imptea<an, and aaid, Tdl flia tMlh
inrow year inQgiaiimNe mut wiMb
Iknow.

lii #bat ttlttdqr dkl yott inrftf _
DsbCd#«>*-l naa hbCdmiiBiiHi.

WW

How kng did yoo aarve BolbkerrDadif-^
ft b twelve or Wrteaa }can atoee I went bii^

IflTwhat rn^Mi^ dM ydk wamtMi f^^Umtl
myparlicukr pcovhictflo#iiMitbdn#pM; .

Weiiayott wdl acduainted with MJMMif
Doaa'a bosineMf— Bellafccj Dbaa bid mtf
aervanta, ef all whom ramohnfe DMa nee
beat acwDamted whhbb aftrihm; ^eiMattr
chief. What papers 1 trnMey I wMi Mii
understanding thciti.

What waa your partiAibv InriMm mim
Bollake^ Doaaf-^To write pipera.

Did yoQ write hi the hooka f—PMMahli-
Doaa add I wreie in them ; he ihv the CbbTi
what 1 wrote I understand ; other pB>|h dgb
wrote in tfaciit.

DU jroa read whdt waa writlea bw diMT
dMcaf-^fdid. '. <

Did yon eter know of any dcbia doe IMV
Bdlakey Does to Itaha Rijah NmdoeamM
—1 kn^w it ftom ndmohmi Doaa etrfy.

Did yoa ftmw of any botid to Malm
Nqpidooomar fhnd Bbllakey Daas, df jfawaui
knowMgef— I knew of one fhr tan themlpl'
rnpeea.

DM yon ever hear of any ieweb ef IMt
R^iah NondoDaaiar*a beidglnBdBakef OaM
poaaeaskmr-«l dM net bear it from floMMf'
Does.

Didyou write the bond fbr 10,000 rupees f<*
No ; Hobun Persaad's brother, Iwalbtte Pler-
aaud, wrote it at Chanderoagore. 1 have
the bond here.

Bow many books of Bolbkey Doea have
ouaeenbereP — Ei^ht, [eight hooka prodileed]
ve of which are ofooDseqoence.

Do theae five contain all the acconnte bf bn>
aineas which came within your knowledge and
chaige P— Yea.

Had not Bolbkey Doaa, beaides bb hnsbesi
account, many of a private nature which caits
inte theae books P — There were other privais
accounte contained in booka which vrere alsim
or deatroved firom Bdlakey Does, when wa
were at Bosar with the army. Thb wiH ap*
pear by the booka produced ; you mmt asl
take it from my mouth : I never aaw th«s
booka that were atob ; halancea from them
booka are entered m the booka on the table.

He tuna to the booka and raada thb calq;

<« ne Jnauna of Dean Chond RdlliaMr, IT
entered in the private cottah of BoQikiyiisafc

*< Tear Jnmma hi the orfvaib
BUttMDMi '^

«f Caki/il«,for Forgery,

ofBimr; therefore ilutionCliuod

'ing drawn oui your accounts, and listing

Iracied your accouDts trDm your Wtks, ai:-

liD^ 10 onlcre, an entry i* made of tUem

A. D. 1775,

mtnttt. Thfwe b AD aceoi
namma here produced, of tli
■be papers aod books that were atoli

tJune )1, 177S.
Hr. Judice Le
(hat Dr. WiUiami
<luof[iihitsco migtii be brought into court on a
catt, lo ^ire hii eviiletice, and ibeju'v b«itie
*«y d«airoui lo hear it, Ibe Court JeclarM
their opinion, Ibat Gun^abissen having • great
■DtercHl in the eitale ut Cullakey Doss, whicb
was difideil by his will in shares accordingly lo
Ibe coroponeul pari* of a rupee, the Counsel
for the Crowo would not be entitled lo call him ;
Uie (trisuoeT was therefore told to adiise with
Ilia couoiel, and say whether he wished lo
liaie biiu called. The Court at Ibe same time
•cquaioted the jury, that as Gungabiasen wasa
wiuuw who would not be calletl on the part of
Ihe crowo, they must receive no prejudice if
the priaoner declined caUiog him ; because, if
culled by ibe crown, he would have a right to
object lo bin), on account of bis interest. The
prisoner haiiog consulted with hii counsel, re-
turned for answer, tbal if he was sure Gunga-
biitcn would speak to the trulh, be sbiiuld be
dcairous ti) baiebim called; but thsthecun-
•idered him as under the inSuence of Mohun
PerMud, and iherefore feared that he might not
•peak the truth, and thai be declined calling
faim ; but the jury shewing a strong desire
that he mtght be called, tlie prisoner and his
eoansel consented thai his eiidence should be
received ; whereupon Dr, Williame and Mr.
SUrk were again aenl, and en their return
Mr. Williamt was sworn.

Court. How was Gungabissen yesterday?
—A. I went to Mobun Fersaud's bouse : I
found him lying upon bis col. The firsi ques-
li»a I uk-Nl bim was, what bii name waa : be
•kid, Giiogabisaen. 1 asked bim as to his dla-
rase: he told me, he had a severe flux; ten,
twenty, or thirty bioo)s a day ; a continual
Ibinl ; and that on drinking, he went lo stool,
•nil it came from bim immediately. 1 felt liia
pulse, and found him to have ■ slow hectic
taver ; and I bcliere be baa a scirrhous liver.

When ynu saw bim yesterdav, did you Ibink
he could he bruogbt into court* — 1 thought be
Hold nnl fitb saTely. On my return, I report'
ed lo the chief joatice in court, that I did nol
Ihukk it »fe to liruig GnngabiMea to ibe court.
1 thought it, and repuilod it. I alWwarda ac-
quainl^ Mr. Justice Le Maislre, tbal if there
■raa ut ftUnluto oece«*ilv for his appearance
Item, 1 ihoughl be might be bronglit on a col ;
uul 1 would attend him myaelf. Mr. JiNlice
Lrc ftUutte h«ripg l>elg(c iiui laitl, Uuit (be

[966
gentlemen in the House of Commons ncr«
sometimes brought in iheir flannels, then 1 said
what I mentioned alioul ibe cot. I went to se«
Giiogabissen Ibis morning, with an inlentinn,
if possible, tu have brought him here. I wai
the first person ibal entered bis room : 1 found
him oS" his col : no one wb« in the room I saw
him in yesterday : he was not in the room I
saw him in yesterday ; bul in a lillle room of
veranda, comiguous to thai in which be lay, '
supported by three or four people, at stool, and
so much eihsusled, that he tumbled on lh«
cot when they brought him to il, and it waa
some lime before he could give me bd answer.
Atter recovering bis strength, I asked bim
some questions retalive to his disorder ; he lold
me he was worse, and that his very bowel*
were coming from him : 1 told him be must
^0 with me in a dooley; he said that it wai
impossible ; did not I see what > state he was
in f and held out his hand lo me. Be was
then in a cool sweat, with a low pulse. I fur-
ther proposed to him, ihat be should go io his
col, and be lifted over the veranda liy roitei,
and be covered up. He replied, be must die if
he went; he could not go; he roust die. I
then desisted from any farther persuasion, and
returned.

What is your opinion ? — Thai lliemao could
not be brought here, and carried back again,
without imminent danger of expiring from fa-
tigue ; and that he has not ttrengih to under-
go an^ examinoiiun, after the fsiigne of bring-
ing bim to court: bad he not told me that he
has been eiceediuKly ill near two years, I
should not bate supposed be could live many
hour*, from the stale he appeared in this mora-
ing.

Hasler Mac Vtagk, Keeper of the Records,
being called, produces three papers.

What papers are ihesef — The original will
of Bollakey Uoss, and a trenstate of it ; tnge-
thir with AD acoounl current of Bollakey Doss's
esute.

Prom whence had jou these papers ? — I re-
ceired,them from Btr, Scaly, the late Register
of the Mayor's court

Mr. Sealy eMmtned.

Did you deliver these papers to Master Maa
Veaghf-ldid.

Where did yon get ibeiD from? — 1 took
llieii) from the recunls ; ihey are pari ••( Ihe
records of the Mayor's court, and were amuDg
the olber records and muuiroents.

Is the accouni current in English aDOri|;inat

paper

-It!

soTtba

Are ihE
tale Mayc

[The Translate of the Will of Bollakey DofI
waa read, of which the fallowiog is a copy.]

A Will of IIoLL^KEV Dom, in NBgre« Laii-
guage, translated mlo English.

■' I, Bollftkey Dow Aufurwall,

15 GEORGE IIL Trial of Maha Rajah Jfimdoamar, ^SfiS

make a i^rden and well in my name, to lie
given to the Brabmoni, two annas, (3 a.) .To
my wife, four annai, (4 a.) To Guni^biaMo
and Hingoo, my nephews, four annas, (4ff.)
To Prodoomone Doss, for bis trouble and
pleasure^ four annas, (4 a.) making siiteen
annas.

*' I dp fortber declare, that I had madca
power of attorney, before this, in the naoaes of
brothers Mohun Persaud, and Prodoomone
Doss ; which I leave to the pleasure of brother
Prodoomone Doss. I request, all 1 owe» aod
what is owing to me, be paid and reoet? ed, ac-
cording to accounts of every settlement. This
is my will, which I thought proper to make hi
ray life-time, and desire to be executed in the
same manner as aforesaid ; and at the reqant
of my wife, I appoint Gungabissen and Hinges
Laul, my two nephews, my trustees. And the
management of all the business, debts, aad
dues, books and papers, 1 leave to the care of
Prodoomone Doss.

'* Mitty, or month of June, Ibnrth day of the
moon Sumbet, or the Nagree year, l8^6.-»
Written by Rissenjebun Doss. — Signed by
BoLLARET Doss, who approved of the abofs
writing.— Witness Dorromchurn, K*«'8seNiE-
BUN Doss, being declared by Bollakey Don.
Bengal year, 1 176, June 191h. [A true eopy.]
— Signed, Richaed Mac Veaoh, Keeper of tke
Records."

Court. This account is properly do evi-
dence ; it is not delivered in by an executor;
and very little would arise from it if it bad been
signed by the executor ; for, as the money bad
certainly been paid, whether properly or net,
the executor wonid have brought it into hit
account ; otherwise lie would have be<in him-
self chargeable with it.

The Counsel for the Crown closed their efi*
dence.

The Counsel for the Prisoner objected, that
there was no evidence of the forgery and pub-
lishing of the bond produced ; but the Court
being unanimously of opinion, that there was
sufficient evidence to put the prisoner upon hit
defence,

The Counsel for the Defendant stated hit
Defence as follows. — That, first, he could call
witnesses present at the time when Bollakey
Doss executed the bond : tliat two witnesses to
the bond, now dead, were living when this
transAction came to the knowledge of 3I(dian
Persaud : that be would produce letters io
Bollakey Doss's band- writing, admitting the
bond, nnti the circumstances of the jew eis, aad
an account sig'ned by Mohun Persaud and Pud-
mobuu Doss, in the presence of GungitbisveB,

967]

in body, do make this my will, as I pretend to
dispose of my estate personally, should I live
lonffer ; but, in case cf my decease, then my
•aid estat" to be distributed as follows : after
the money due lo me by the Company is re-
eeived, first, 1 reqtiest my debts be paid, agree-
able to accounts, and the remainder to be di-
vided into sixteen parts, or sixteen annas,
whereof to be distributed for the divine service,
Tic.

** To Sree Goberdun Nautjee, one anna (1 a.)
To Saut Mundier, or Seven Pagods, named
Sree Be-tthol Nautjee, Sree Mothnreshjee, Sree
Gocul Nautjee, Sree Modun Mohonejee, Sree
Duarrackow Nautjee, Sree Goculchunder Mo-
huojee, Sree Nownit Peeawjee, two annas,
(3 a.) To Sree Bridjupauljee, half an anna,
{6 p.) To all the Ballokes of Gussainjee, one
anna, (1 a.) To Sree Modun Mohunjee, and
Sree Bhuggnerrutjeer Boho, half a pic, or Eng-
lish (l|p.) To Sree Govindjee Tickoytmow,
lialf a pic, (Up.) To Sree Mohaw Probhojee,
half a pic, (lip.) To Sree Gopceul Nautjee,
and Sree Govindjee, half a pic, (l}p.) To
Poorestum Khetter, half a pic, (l|p.) To the
Bustnubs of Gooul and Brendabun, a quarter
of an anna, (Sp.) To all persons assisting in
the Sreejeer Saut Mundier, half an anna (6 p.)
To Sree Brajjayr Mohunt, Buyraggnies, and
Goburden Tulhatty, a quarter of an anna,
(Sp.) For the making of Sree Nautjee's gar-
den, one anna, (1 a.) To Sree Bollodebjee, a
quarter of an anna, (dp.) To Sree Gopaul
liauliee, at Banarass, a quarter qf an anna,
(3 p.) To Sree Jomunahjee, half a pic, (l|p.)
To Sree Baulkiisoojee, at Sorat, half a pic,
(If p.) Ditto, one anna, (1 a,) making in the
whole nine annas. The remainder seven annas
lo be distributed as follows, viz.

** To my wife, four annas, (4 a.) To Gun-
l^abissen, and Hingoo, my neptiews, one uoua,
<1 a.) To my three daughters, named Sliebun
Bebee, Gungaw Bebee, and Moiichun, three
garters of an anna, (9 p.) or three pics each.
To my brother, Sam. Doss, a quarter of an
anna, (3p.) and from the remainder one anna,
"(] a.) To Kissen Jcbun Doss, five hundred
rupees, (500 r.) To Pautuckjee, ooe hundred
rufiees, (100 r.) To Bassjee, fifty rupees,
(50 r.) nnd the remainder lo i»tber persons.

** AAer the Company's money is received,
out of the said mon(;y ten per cent, to be paid
to brother Prodoomone Doss, as 1 have giveu
liim a note ; and aAer my delits arc paid off,
the remainder and residue to he distributed ac-
cording to the particulars above-mentioned.

" 1 have given Baubo Dfiorromchuii a note
for four tbouMHud rupees, (IjOOOr.) which are
io be paid him.

«* And b( sides lids, the outstanding debts at ; in which the sum contained in the hcmd it in

Dacca, Rungpore, Deuazpuze, Purneah,
Muxadavad, Hnugbly, iVJunghir, and Patna ;
to be recovered agreeal)le t(» books and accounts
on those places, aod the same to be distributed
as follows, viz.

•* To Sreegeer Duarroy, Gooroor Duarroy,
and Saui i>, Hiudiery two aiuiat, (S a.) To

clufled, as also a pa|>er in the hand- w riting of
Bollakey Doss, in which the particulars oftbs
transactions are statetl : and that entries were
made of the same in the htKtks thut were last,
and letters of corresftondence between BtdtekiV
Doss and Maha liHJoh Nundocomar, in wbicb
this tr«Dsaction was mentioned.

069]

et Cdteutia,Jor Forgery,'

A. D. irfs.

[970

Tage Roy called.

Have joa got any nataral brother f— I hare
one itrother only^ called Maitabroj ; he was
my elder brother.

Is he living or dead ? — He is dead.

Where was he during the last eighteen
months before his death ? — Sometimes at
Honghly, and sometimes at Calcutta.

What was his natire place ? — Bareai Adam-
pore, at Doncacollah, in the cbncklah of Burd-
wan.

Have yoQ ever seen your brother write ? — I
have.

Can you read Bengal ? — Yes.

Is this your brother's writing? [A Letter
produced marked I.] — It is not my brother's
writing.

Who then wrote it? — I did, by my brother's
direction, in his presence.

Look on the cover : whose seal if that ?— It
19 my brother's seal.

Can yon read Persian ? — I cannot read Per-
tian, but I know the seal.

Was the impression on your brother's seal
affixed by you ? — I set the seal.

How came your brother not to write ? — My
brother %vas engaged in other basiness, and de-
aired me to write.

. To whom was it directed ?— Mahomed Hee-
amut Seeraffut Roopnarain Chowdrowjee.

Wlien did your brother die? — About two
years and half ago;

Was your brother a person well known in
Calcutta? — He was known to rich and poor in
Calcutta.

To whom ? mention some persons.«-He was
a servant to Sam. Buchy. who was in the gaol.
Baboo Huzreymull and Diachond Baboo knew
him.

Croif • Examination,

Was your brother a servant to Sam. Bnchy ?
—He was.

On what account was Sam.Bochy in gaol?
— He was six years in gaol, on a dispute about
the Company's salt.

How olu are you ? — ^Thirty-three.

How old was yonr brother? — ^Three years
and a half older than 1.

When did you come to Calcutta? — Nine
days ago.

From what place? — Donyacalla in the
chuckle of Burdwan.

On what account did yon come to Calcutta ?
—A letter came from BorHwan, from the KnJHh
of Burdwan's house, calling me there : I did
not goon that letter: afterwards Roopnarrain
Cbowdree wrote me a letter ; a peon came with
the letter.

Hare you gil that letter?— The letter was
wrote to the Jannadar: he did not irive me
the letter : another letter came to me with a
peon and kittree, from Roopnarrain Cbowdree :
when they arrived I was busy, and was not
Ibmid ; when 1 waa found, tney gave roe a
Ictlari reqairing me to oome to the pretence.

What do yoti mean by the presence ? do you
mean the Court?— I do not mean the Adawlet:
they 'did not tell me plainly where I was to
come : they told me I must tell what I knew:
I said I knew nothing but what I knew from
my brother: I came on that letter: I received
it the third of Justin.

Were you ever in Calcutta before ?— I came
to Calcutta nine years ago.

Where did your brother die? — At Donya-
colly, in his own house: he was ill five
mouths.

Were you ever in Calcutta when your bro*
ther was there ? — Yes.

Whom did he live with ?— Sometimes in' the
boose of Mohun Loll and Nundo Loll : he al-
ways staid with Sam. Buchy, being his aervant.

When was your brother acquainted witli
Roopnarrain Cbowdree?— From the time wheii
he went to Burdwan.

How long ago is that?— Ten or twelve
years ago.

How long did your brother stay in Burdwan F
-—He never staid long.

What do you mean by the time of yourbro*
ther's ffoing to Bnrdwan ?— My br>ttber went
three diflerent times to Burdwan upon bu-
siness.

When did he first go ?— The year Mr. Sum-
ner went Chief to B<irdwan : he went with
Cossenaut Baboo; that was the finttime.

Was your brother ever in Burdwan before
in his lite ?— Not in the town^f Bnrdwan.

Was he ever in the province of Burdwan ?— >
He was born in a cbuklah of that provihce.

Was your brother a servant to Cossenaut
Baboo ? — No : he went with Cossenaut Baboo,
who promised to give him employment, as I
have been informed.

How long did your brother stay with Cosse-
naut?— ^Ten or twelve days.

Did your brother write Bengal ? — Yes.

Did your brother write his letters himself,
or you fur him ? — When I was with my bro-
ther, and he desired me to write, then 1 used to
write.

How long is it since you wrote that letter ?
— ^Thirty- six months.

Where is yonr brother's seal now? — With
me : I can produce it.

How long have you had it? — Tt was^in
my hoime after Uie death of my brotbeT: I
had it.

Have you sealed any letters with the seal
since you had it?— No: why should I seal
with the seal of a deceased person ?

Baboo Huxrey Mull examined.

Were yon ever acquainted with a person of
the name of Matheb Roy ? — My house is a
house of charity : a great many people ooniia
backwards and forwards to and from my
bouse : I do not know what Matheb Roy yott
mean.

Do yon know any body of the name of Ma-
theb boy f-*There waa qua l(Lk^kA>^ ^^1>^

'§713

le GEORGE in.

Trial ofMaha Rajah Nundneomar,

iitree, here % great while tgo : he cune from
the westward.

What sort of m man was he?— He were a
clionran (broad) lurban : he tru* ralher eld.

How old might be bef — SonielhiJig' ai>c«e

fitiy.

fae teemed

I

I

I
I

llow manv yean ago
to ,be above &iy ? — Alioul Ita jiears a^o.

Was he fifty ten ycara ago, oi would he ap-
pear to be that age now r—T saw hiiD <1ieti ; I
epeak of hie age u tbeu : 1 liare not seeo Liin

iUmrl. Haie you aeen him more ihao once ?
— A. I may have seen biin two or three
tioiCK: I do not reculUcI : it wm a great while

^0,

Have you ever beani ofany body else of the
Saoief — 1 am much e(n|i1oyed in bu^iiicat: I
caiuial tell whether I hare aeen any other )>er-

Did you know any of hUcnmiHcliona? did
yaw kiioK his relations?— I did not.

Uo yon know whether he had a lirotber? —
People know these thrntfa by enquiry : I do

Did you know whellier be was a «errant to
Sua. Bui:by, or to any man in uaol 't — Sam.
Buchy was lurmerly my Gomaslah : at'ter-
wacds lie aet u|> boaintvs for bimaelf ; 1 eanout
■ay whether he was or was not Bervanl to Sam.
Buchy, as manv people neat backwards and
forwards to my house.

Do you believe lie was a servant of Sam,
Iluchy'ftf— I do Dut rememhfr.

Are you sure thai Matbeb Roy ten years ago
appeared lo be alioie fillv ? — 1 neicr enquired
bis age : it is only from looking al him ; 1 bare
nieDlionett that he appeared alwve.

Areyou aurc that be waf more than tweoty-
■it years? — He certainly was more than
Iweuty-tiK years: I before said he woa fifty

: Ic

>t tell U

Can you say with certainty, whether you
aent awaDufthenameofMalbrb Roy loBord-
nan? — 1 do not remember: 1 cannot aay for
certain : Sam. Buchy can best tell.

Is Sam. Biuhy alive or dead?~He is
•live.

CiUMnnut Bu^ examined.

Did you ever know any mail nf the name
of Mailieb Roy?— IVhat Matbeb Roy do you

Dill you ever keep any man in your family
of that name?— There was a person of that
name, »bo was sou of Bungno lioll Snunuh,
Kittrae of Hurdwao, who used to come back-
wards and forwards to my house: be did not
live in my house, but eat and drank there:
Buufoo Loll was a man of conteijiieDce : he
was a servant to the Nabob.

How tong haTe you known Matheh Roy f —
About tweoiy-five years.

Is that aince you first knew bim?— Yea; I
Jtoew him well; he was a man of this country
«s well as myself.

What was bis figure?— A wbilisb man,

How old would be lie if alivi
not say ,for certain ; I imagine about fiftn
alive DOW.

Do you take hia age from hia i^ipearit,
or from your knowledge ! — From seeing hia

» hen did you flrtit kuow him ?~The liM
of the Maratias disputes, when the Nabob fl
loBallaw, in the year 1U8, or 49, 1 tirMkoBV j
him; tbirty-lbur yean ago, a. D. 1T4I.

How old was he when you first knew hiuF
— He wa« a young man, frotu eighteen lo
twenty.

Dow many cbildreo bad Matheli Roy ?—
Four ; one cslleil Ballub Roy, tbe sei^ond called
Matheh Roy, the third called Saheb Roy, aad
the fourlfa called Panjeb Roy. */^

How many children bad Saheb Roy? — Om
son, I knew of no more.

Did you ever know any lUalheb Hoj, the
son of Sclieb Roy ?— Nn ; 1 am sure, 1 did
not know a UaUieb Roy, the sod «f Sibeb
Roi

Did a

any Haiheb Roy go to Burdtean wM
ihetimeof Mr.Sumnerf — I doMMi*-
member.

Are you positif ely sure that no HAlbeb By

was tbe son of Saheb Roy? — I did not ki

Malheb Roy, the sou ot Saheb Itoy.

Was there soy Hatlirb Roy, the son (
beb Roy, that you promised to get an empkf
for? — 1 do Dot remember.

De you kuuw the son of Saheb Hoy ?-
know the sonofSabeb Roy, tbesun ef B<W
goolull.

Do vou know his oatne ?— Hii ni
mau, I believe.
Tajte Rag is called and shewn lo C

Is that the son of Satidi Roy P—Tbia ild
son of any Snhcb Roy, I know. ,

Cuurt. TrII this man what Cnssenavl ll
said, and tell him the consequences ofsjiei

Tajec Rog. I am the son of Sabeb Roj, ll
son of Biinguololj.

How many sons bad your falber ? — One i
Coiienaul. There is another BunguobdtJI

Ofwbatpei^nnah was ibe last Bnngc

—I do not know where be was born;

in service at Uancoor, and lived at Hougly.
Do you know bis family ? — i do no
Ot what pergunuab was tbe firsi

Bungoololl?— Ofthecity of Burdwui

Are you sure be was not orDDynacollyf--J

I cannot determine ; I knew him at BurdwUh

and I did not know him at Doyuacolly.

Did you know the other Bnngnololl? — I lb

not know tbe man uow here, lb« other Bun-

gootoll was In service at Maucoor.

Q.toTisieRt><i. Is your father, Saheb Bey.
ive or dead ?—A. Dea<l.
Where did your grandfather BungiNl*ll
e ? — At SaitagoDg, in the disliict of Hi ~'' ~
How many children bad be? — Only oi
How came you to say that your b

tvciUW Huuglj' witb Coswiuut ia Um (i

^HfJ at CalctiUa,Jor Forgfry.

Hr. Sumner F — I in know lint he went lo
nflaely with CosNeDnnt ; if Cowenalit does
rroollect it, I cannot help il ; he wns a p
mm ; I cm pTg*« that lie did go by a liua<tr»)

l.loCottenaiit. ITany maoof that ni

A. O. 177*

[974

«Jd

It with n

; I cannot saji he

A* you knew the family of the Bnncrontolli
of M>nc<u)r ; ifone of iliem had Koiie wtili you,
should ynu know him ? — 1 bctiGfe 1 slinoTd
bate IcDowu if any perann of the name of Ma-
Ihrb Roy liad gone with me.

[aUMiioii repealed by one of lire Jury] If
aurJ] a man bail gone, 1 certainly would know

[Qjieslion again rrpeated.] I did not know
BuDyooMI of Houpty's family ; llierefiire can-
not aay wlieiher 1 gliuiild haie known him.

Haw iild WW Bungoolull of lluugly P— I
eaniiol Irl).

Uow lunir ia il aince you Eaw him f — I hare
lakrn an oaili ; I cannol aafely say.

Hnir riianj people do you giieai might follow

voa In IIoukIv, expecting emphiymenl? —

Gml men and liille men were wilh us : I can>

Mt uy exactly, 1 lidieTe abiiut 500 oi 1,000.

Tag^c Roy enamioed,

la ynnr grandt'alher alivp ? — No.

How long if it since he died ? — Ponrteen

Do yon know whether your grandHitfaer was

in any aertice?— He was Izardar at Hougly.

Du you know a place called Maucoorf —

Waa your grindfalher in service (here J*— I
knowMancunr; it was my gTaodrather'iifarm,

Where wai the house of your grandfather P
—At llongly.

Wa» il not at Barree Adam Pogf?~My
grandfalher'i hnnne was at Ilmigly.

When! waa yuur fstlier'a house f— My fa-
ther lifed with my grandfather.

Did yonr father life in Ibe buuse after your
E^and fa tiler's death?— I wa* very young.

U'here were you born?— AlCbintDrs.atlhe
lime of the Marslta ioiaiion.

Where wa» your brother bornP — At Barree
Adam l*uorin bii node's house.

Have ynu ever been examineil before, about
IliB Dialler* you have iji'en in eridence to-day F
— Wlnietct I was aikeil, I answered truly.

To whom did yuu say that?— To the gentle-
To what gentlemen du yon mean f— That
gentleman, [piiialiag lo Mr. Jarret, alltiTLey
ri>tjiirt.oncr.]

wbere was thai r — In the house of the gen-
tleniaii with BIr. Jatrcl, [pointing to Hr. Far-
nr, oonnael for the priaoner.]

RoopTuiTTaia Choaidree twnrti.
Did you knnw any peiioa of the name of
IUllichltajr~liIul.
t

Where is that person now.'— Dead.

Do you know ihe family of Milheb Rny*— .
He was of one cast, and I wan uf anolher : 1
do not know hii ftmily.

What was bis falher's name i*- Saheh Itoj.

How many brothera are there ?— Taijee Roj
nndMathebRoy.

Utd ynu know his grandfslher f — No.

What were the names uf the brothers of the
Maiheh Roy yon know ?— Tail ee Roj and
Maiheb Roy.

lit you mean two sons of the father, or
tbrpc? — Two only used In come to me.

Do you know when Rlatheb Roy died T — la
the month of Maug, 1179.

Did you remember any teller from Maiheb
Roy before his death ! — Yea, in the month of
Baudoo, 1179.

Joydth Clioabte eiamined.

Did you know the late BoIUkey Doai Seat t'
—I dirf.

Did you know of his erer executing any bond
to Maba Rajth Nundncomar? Tetf what yon
know about it.— I lememher that Bullake*
Dosi Seal wr«le oul a bond in the name of
Mtiha Itajah Nundocomar; his writer wrote iL

Did you see bis writer write it '—I myself
with my own eyea saw the writer write it in
Ibe Per^inn band.

Did you see it aflerwardi executed .' — I saw
Bollakey put bis seal in il.

Who were the wiinemea toil 7 — Mabnmed
Commaul of MuxadaTad, Mafheb Roy, a Ket-
try, and Sdlabiil, the Vakeel of Bollakey Duat.

Didyou seeihem wimeas il.^— I myself aaw

nse three men witness il.

What wsa the amount of the bond f — t do
not remember exactly : I believe il wa« within
45,000 rupees, and something thore 40,000.

At what time of the year was this ?—l do uM
Ecollret.

'I>ll as near as you can what raomh il wasP
-Il WHS in the rainy seaiioll.

Do Tou know the person now called CoiU'
laiil O'Dien Ally Cawn t—l do know him.

|q be the person you saw witness tbal bond
ou mention?— No.

Who was the Mahomed Cnmmaul you Mfr
'itneas it f— A man of Mnxadarad.

Did yon know bit father? — I did not.

Ii that Mahomed Commaul living ? — lie is
dead.

Do you know him lo be dead, of yonr own

inwledgef — I d» ceruinly know.

Hew long is it since his deaih ?— .\bont Rr«

Where did he die ?— I went lo ihe honse of
Maba Rajah ; I was by when he was carried
" he buried : I enquired whether il was a Bra-
in or a MiisKulman going lo be Ininwl : lliey
aDiwered.il was Hahomed Commaul.

Did ynu know Mutheb Itoy P who woa beF
Maiheb Roy was a keltry of Burilwan ; t
„.iewhim; he was rre.|UUiitly coming back*
wards mid forwards lo tlie Maba Rsjah.

")w long hare yau been acquainted wiA:

W5]

la GEORGE HI. Trial ofMaha Rajah Nundocmar, [976

Bollakey JDon ? — I knew him when he lited
i^t If axadavad, and oAeii saw hiib after be came
to Calcutta.

What conoectioD had you with Bollakey
Don f — He was a Banian, and I was a Bra-
into ; there is no relationship ; there was friend-
ship between us ; 1 knew him, and he knew me.

Had you any connection in business with
him p..Tbere was no connection in business
between us; he was a ^eat Shrofl; I fre-
quently went to sit down in his house ; he de-
sired it.

What was your business ?-— I was formerly a
•crraBt of Maha Rajah Nundocomar: he is
now without employment ; bis employment is
gone, and so is mine.

Where is the bond you speak of executed ? —
The bond was executed in the house of Baboo
Huzree Mull in the Burra Buzar.

Who lived in that house? — ^The bond was
there written: people, belonging to Huzree
Mull lived in it ; thpre was a part of it sepa-
rated frojn the rest, io which Bollakey Doss
lived ; it was in the separate bouse where Bol-
lakey Doss lived.

Can you read Persian ? — I do not know Per-
sian ; how can I read it ?

Were you there bv chance, or sent for ? —
Bollakey Doss callea me and carried me with
him.

Did he come to yonr house for you ? — He
came to the house of Maha Rajah Nundoco*
mar, where I was then sitting. Maha Rajah
Kundocomar said to Bollakey Doss, Money
has lonir been due from jrou to me ; now pay
it. Bollakey Doss said m answer, I have lost
every thing by plunder at Dacca ; I have not
now the power of paying ; a great sum of
money is due to me from the English ; when
I receive that, I will pay you first of my cre-
ditors. Having said this, he added, I will now
write out a bond. Bollakey Doss in this
manner pressed Maha Rajah Nundocomar a
good deal, and put his hands together iu an
attitude of praying ; and at last Maha Rajah
consented. Bollakey Doss then said to Maha
Raja, Send Mahomed Commaul with me to
my house; I will there write out the bond
immediately. Having said this, Bollakey
Doss, in company with Mahomed Commaul,
leA Maha Rajah's ; I likewise obtained dis-
mission from Maha Rajah. Having gone
down stairs, Bollnkey Doss said, Come along
with me to my house, and I having executed
A bond before you and Mahomed Commaul,
will send it to Maha Rajah. After this, Dol-
lakey Doss and 1 went to the house ^f Uaboo
Huzree Mull, in the Hurra Ruzar: iieinor ar-
rived there, he sent for his writer. The writer
came, and was ordered to write out a bond in
the name of the Maha Rajuh. Tli«> writer
wrote out a Persian bond, and put it in the
hands of Bollakey Doss Seat. Bollakey Doss
Seat, having seen the bond, took the ring off
his finger, and sealed it, and said to Mahomed
Commaul, Be you a witness to it. Mahomed
CouMnaai ai&xed his own seal^ with his own

hand, as a witness ; he said -to Bf atheb Rajf^
Be you also a witness to this: M atheb Roy
sealed it with his own hand. He said to Siel-
labut. Be you also a witness to this ; and be
signed it with his own hand. Seillabut Itaviog
put it into the hands of Bollakey Doss 8eat, be
put it into the hands of Mahomed Commaal,
and said. Carry it with Seillabut to Maha R^jah
Nuudocomar's.

You say Sillabut signed the bond ; what
did he write on it ? — He wrote his own name,
as a witnes!! ; I do not know Persaao, 1 ins*
gined he signed it.

Did Bollakey Doss read the bond before be
signed it? — The writer put it into the bandi
of Bollakey Doss, and he, having seen it, siga-
edit.

Did he read it? — The writer read it to bia;
he heard it.

What is that writer's name? — I do not r-
member it.

Was you acquainted with bun P— I hsre
seen him with Bollakey Doss; I was not ae-
quainted with him.

Do you remember what sort of a man be
was? — J do; his cok>ur was black; hewn
about forty years of age.

Do you imow Sillabut? — I did not know Sl-
labut

What was he?— A Vakeel of Bollakey Don.

How many years was he with him ? — I do
not know.

How many years did you see him aboti
Bollakey Doss r — ^Three or foor years.

Do you mean three or fonr years httatt
signing the bond? — I do not remenAber bow
many before ; Sillabut lived sometimes with
Bollakey Doss, and sometimes witli Maha Ha*
jab Nundocomar.

How long afler sealing thi^ bond did yoa
know this persou about Bollakey Doss?— Tiro
or three years.

Where did he go then.^ — He %vent witbio
that time to Jaggernaut, to perform religioiis
ceremonies along with Mohun Persaud ; vrbeo
he returned to Calcutta he died.

When did he die? — I do not know; I wai
told he returned ; I heard of his death.

Did any bo<ly else write upon the bond i*—
Nobody else.

Did any body besides Sillabut write sdj
thing at all upon the bond ? — Sillabut wrote
upon it : Mahomed Commaul sealed it : Ml*
theh Roy sealed it.

Did any body else use a pen ?-^Not to oj
remembrance.

[The Chief Justice, in a low voice, tolil the
Counsel to shew him another bon<] with tbni
seals.]

Court, You have sworn positively; J^
must answer positively. — A, 1 speak fromcrt^
tainty what I know : I saw nobody else wiiM
U|>on the bond : I do not remi mber it.

Do you know Mahomed Commaul?— I vH
acouainted uith him.

Where were you acquainted with him?-*

:

977]

at Calcutta, for Forgery,

A. D. 1775.

[978

He was a lerratit of the father of Maha Rajah
Nundooomar : when his father died, Nahoiiied
Coromaiil used frefiiienUy to come backwanU
and forirards to Maha Kajah Nundocomar's
borne.

Were you intimate ?— There was no friendship
between us: I had seen hinn two or three times
at Maha Rajah's.

Vhat Was his employment when the bond
was signed?—' A russeck (dependent) of Maha
Rinah Nundocomar.

What sort of a man was Mahomed Coin-
maul ?— A middlings sized man, of a yellow
colour, rather whitish.

What was his a^e ? — He was near 35.

1>id Maiheb Roy or Mahomed Commaul
seal first ? — Mahomed Commaul sealed first.

Whosealeil next? — I do not remember whe-
ther Matheb Roy 8ealf.d next, or Sillabut signed.

In what part of the bond did Bollakey Doss
pot his seal ? Was it at the top or at the bot-
tom ? — It is a ((reat while ago : 1 know no-
thmg of such a dispute to come : I cannot be
positive as to such things.

What aise was the paper ? Was it as large
m this? [The indictment, consisting of two
half sheets of parchment, doubled, was shewn
bim.l — I do nut remember if it was large or
small.

Court. Do you remember if the seal was

00 the inside or the outside of the paper ? — A.
Bollakey Doss, I remember, sealed in a place
like this, [pointing to a margin iu a Persian
paper, shewn towards the right hand corner at
top.]

Arajoa sure of that?— I remember.

Where did Mahomed Commaul seal?-^If 1
were to see the bond I should be able to tell.

Was it larger or smaller than this pa|'ier ?
[A large sheet of Bengal paper shewn him.]^-

1 cannot tell whether it was larger or smaller:
bow can I speak to what I do uot remember?

Was it as large as this ? [A very siuall piece
tf paper shewn him.]— I know not.

Was it Uke this ? [llie back of the real
bond ahewn him.l— 1 do not remember; but
if I was to see the real bond, I could tell the
Seal and the aize.

Could you know the impressions of the seals,
if you saw them ? — If I see the impressions
•ftbe seals as they were, I should know them.

Should vou know Bollakey Doss's seal ? — I
bttow Bolfakey Doss's seal ; from seeing the
bDpression of the seal, I shall know it.

How came you so well acquainte«l with Bol-
lakey Do88*s seal ?— It is a(buddammee) almond

■eal.

Court. Let him describe the shape. [He
^escribes an oral on a paper.]

Q. How can you kuow the impression of
Bollakey Doss's seal, not understanding Per-
aion?— I frequently saw it upon his hand.

Did vou ever aee Bdlakee Doss's seal but
^poD bui finger ? — I never saw hia seal in any
^Hber placo uan hia finger.

Court. Were you to aee the seal of Bolla-
key Doss upon t piper« should you kuow it

VOI^ XX. ^

from any other? — A. I should know the impres«
sion of Bollakey Doss's seal if I was to see it ;
I have frequently seen it upon his finger.

Do you know the imprfs^ion of Mahomed
Commaul's seal ? — I should know it ; 1 have
frequently seen it upon his fingi'r.

Were you to l»e shewn a (mpfr with the im-
pression 6f Mahomed Commaul's seal on it,
should you know it ? — I could not read the let-
ters, but should be able to judge from the
shape.

Court. Should you know the seal ? Many
seals are of the same shape. — A. 1 do not read
Persian ; but I think I should be able to know
the seal.

Courts Have you oflen seen the seal on
Mahomed Commaul's finger? — A. I have
often seen it on his finger ; he used oflen to
come to the house ot Maha Rajah Nimdoco-
mar, and I used to see the aeal on his finger.

Who sealed first after Bollakey Dossf—
Bollakey Doss having aealed it,' put it into the
hands of Mahomed Commaul, and he sealed it.

Where was it wrote ? — In the house of Hux-
ree Mull, in the Burrs Bnasar, in the presence
of us all.

What room was it in? — ^There is a long
room runs east- west, the door to the south : it
was executed there.

Who waa present beaides ?— Shaik Ear Ma-
homed, Choyton Naut, LoUah Doiuanking,
Matheb Roy, Sillabut Vakeel, and the peraon
who wrote the bond.

What was his name? — He was not of this
country ; I did not know him.

What hour of the day was it?— -It was be-
fore mid- day.

Did any particular conversation pass at that
time ? — There was no conversation.

Was there not between the rest of the com-
pany, while the bond was writing ?'- 1 remem-
ber no conversation : when the bond was fi-
nished, he put it in the witnesses' hand : we
said nothing : what should we say ?

How long was the writer wriiuig the bond P
— One gurree (22 minutes.)

Who brought in the ink lor the sesis? — Tlie
ink-stand waa near Bollakey Doss ; he djpt his
seal on the cushion, and sealed the bond.

Did he bring it with him ?— He was a shmf\
of consequence, possessed of a sicca ink-stand :
it was silver.

Who brought it into the room t — I first saw
it near Bollakey Doss.

Was the ink-stand in the room, or brought
afWwards? — Bollakey Doss went with his
sewarry ^fore us; when we came in, we
found nim sitting, with his ink-stand before
him.

What conversation passed while you were
St Mttha Rajah Nundocomar's ? — 1 have al-
ready related.

Did no more pasa? — No.

Was there any conversation about what the
sum of the bond was for, at Maha Rajab'a?—
There was no conversation about the amouat
of the bond at Maha Rajah's.

3 R

979]

1 5 G EORG E in. Trial tfMaha lUgah Nuniocamar, [SBV

Do joQ rempmb«r any mention of o prt-
mium to he i;ivi>ii ? — No.

L>«> you retiiemiier the Bum ? — 1 do not.

|>t(l you hear the bouil read ?— The writer
read it, but I did not undervtaud ; it was read
in P* I siun : how shouhl I know what the bond
was ?

How do you know the anmf— I did not
know the umount of the bond : 1 heard that it
was within 50 and ab<»ve 40,000 rupees.

When did you hear that? — It was two or
three days after the time.

Did Bollakey Dom look at any books before
he ordered th^ bond to be wrote? — I did not
see him examine any books before the bond
was executed ; wlien 1 came he was sitting
down, and I did not see him examine any
books.

How tonfji; did you come aAer him ? — He
went in his palanqnin ; 1 followed him : it
mi(|;ht be half a ^urree, (11 minutes.)

Did you find the other persons you men-
tioned, sitting when you came in ? — Four of
us came together; myself, Mahomed Com-
■laal, Chof ton . Nant, and Sbaik Ear Malio-
med. Naiheb Roy, Lotta Demon, Sin^ 8il*
labut, and the writer, were there when I
came in.

Had the writer began in write when yoa
oame in ? — After we bad sat down, the writer
began to write.

In what language did Bollakey Doss speak
to the writer ? — He talked in Moors : he spoke
Moors.

Does he understand Persian?— I do not
know ; he talked Moors.

Was the bond read in Persian ? — ^Yes.

Was it, after being read in Persian, exphiined
in Moors ?-^-No : it was read in Persian, and
was not explained in Moors.

Did you iiear B(»iiaktfy Doss give any direc-
tion as to the snm i* — Bollakey Doss said no-
thing in my presence about the sum.

Did Boildkey I>ors, any time before, tell
him the sum ? — God knows whether he told
him before.

You say you heard Bollakey Doss give di-
rections to write the bond : what were the di-
rections?— He spoke these words: Write out
a bond in the name of Maba Uajah Nuudoco-
mar.

Did he say any more ? — No ; he spoke no
other words.

Did Bollakey Doss say * a bond,' or < the
bond ?' — He said, * a bond.'

Did be say any thing about consideration ?
-^When I went, he spoke the words I said,
and no more.

Do you know this paper? [Bond produced.]
—This seal of the budJamee (almond, oval)
shape, is Bollakey Doss's.

What is this paper? — This little seal is Ma-
homeil Commaurs.

Can you swear to that positively ? — 1 do not
know the words : the largest seal is Matheb
Key's.

flow came you to know the seal of Matheb

Roy ? — I have seen bis seat od hit finger : I
saw him frequently at Mahs Rajah Niwdiea*
mar's house.

If ihe gentlemen of the adaolel were to ooC
the seal of Mahoine<l Commaul on aaolMr
paper, should you know it ?— I ahouM.

Was there any conversation of jewels it tht
Maha Rajah's?- -No.

Was there any at Bollakey Doas'e ?— Noi

•

[Tlie seal of Commaul O Dien Ally Cawi^
before produced to the jury, is aliewn iiiiB.]

Do you know whose seal this ia P — i do ait

[Joseph Satcheb, clerk to Mr. Jarret, is
called to prove the delivering of notice to Mi-
bun Persaud to produce an ori||^iial N^^
paper, given to him by Maha Rigah Nundeea*
mar, when he, Gungabissen, and Pudmohoa
Doss, were in the Maha R^ah's bouse, m(ptd
in the proper hand- writing of Bollakey Dsil
and to produce it as evidence for the de^ndaot}

Q. to MohuH Persaud. Have yoo pradoNl
any papers, in consequence of the notiee?— A
1 cannot produce it ; 1 have produced aH ibi
papers I have : I hare no paper ojader Mcft
description.

Mohun Dou called.

Do you know Gungabissen ?— I do.

Do you know Mohun Persaud P — Yea.

Did you know Pudmohun DossP — I did.

Did you know Botlakrj Doss ? — I dkt.

Have you seen him write ? — 1 have.

Are you acquainted vvith his hand-writiagf
— I am.

Do you remember BIflha R^ah Muadoei-
mar, Gungabissen, Pudmohun Doss, and Mt-
bun Persaud, in conversation together P—1 di;
at Maha Rajah Nundocoraar's house.

Did you, upon that orcnsiou, see any paneilF
•—Pudmohun Doss said lo ^I^ha Hijah NuB-
docomar, Gi\e inc pi^ters. Maha Rajah bar*
ing got the papers. Iiiil me co[)y them : I ob*
served to (iun<:'abissen, Muhiiu Persaud, as'
Pudmohun Doss, that Maha RHJah had bid mt
copy the papers ; and asked them, if I &houtf
do it ; they all answered, Write them ooL
Having wrote them, I gave them to Mabi
Rajah Nundocomar: Pudmohuu Doss took
the original, and the copy remained there.

What did Pudmohun Doss do with them.*—
The copy I wrote remained with Maha Rajah
Nundocomar ; the original remaioed with Pad*
mohun Doss.

What did Pudmohun Doss do with the pi-
pers?— He took them himself, and put taciB
up : whether he carried them out of the bomt
I know not.

Have you ever seen the papers since 7«*
Never.

[A paper shewn him : a copy of the paptf
was oflfereil to be giveu in evidence.]

Court. You have traced it into the htadi of
Pudmohun Doss, but not into the bands ^
Mohun Persaud. This is not aaffident tf ca*
title you to give the copy ia eriieaee.

at CakiOkiyJbr Forgery. A. D. 1115. [962

" You are my nMsler ; ■( if iMcesMry you
should make enquiriat about me at this time.

£A t« agree paper is produced.]
at signature the hana- writing of Bolla-
les ? — [ Afler looking at it for some time,
g great difficulty to make it out, he
[f I see the urigiual paper from which J

I ean read it.

the words at the InHtom BoHakey ]>oss*8
'riling?— Boliakey Doss's oame is writ-
be bottom.

at of bis haDd-writiiig ? — There were
'e letters of Bollakey Doss's uame on
•er I copied. I caanot tell whether this '
aud-writiog : I do not know : I am not
aastali. Kissen Juan Doss knows Bol-
Doss's hand- writing and Pudmohun

KUun Juan Dots examine<l.

: at that paper ; [^Negree paper shewn
rhose signature is it ? — BoflaKey Doss's
re ; it is his hand-writing ; the body is
d-writiftg of Pudmohuu Doss,
here any words wrote by Bollakey Dois
his name P — There are.

Elliot delivered into court the following
te of Nagree papers, which mark £x-

iha Rajah Dehraje Nuodeeomar Geeoo,
lutta, with compliments, written from
ra, by Bidlakey Doss, with msn v obei-

Nay GotI always grant him health,
ball he joyful, f myt»elf am by your
lO health ; you have written a Pevsian
rhich has arrived ; by the reading of
[ have been rendered joj^ful and con-

You have written, that till the gover-

II c<»mf*, }'ou wish me to stay at Chin-
Acconnts are received that tiie gover-
I shortly arrive. 1 have, according to
esire, remained here. The governor
;, as business will quickly be done, you
: 1 have hopes in yuu.

u will hear other circumstances where
; I am unjustly oppressed ; you are
Iter. What else shall 1 write ?
u have written about Derruinchund ;
e he and I acquittal have settle<l, which
ow ; besides this, nothing respecting
unknown to 3'ou ; accordingly you
Id, and what you say I pay great atteii-
Phe Com|»any'H money being receive*!,
. rupees two thousand, out of that self
e. I am not disobedient to your orders,
this time from the side of expences
rouble is ; therefore ru|)ees five hun-
u bestow U|Min lue ; then I will give it
' rest. Business quirkly will be done
■Mt wil! v:iv(\ Brother Pudinohun Doss
f ; you will be acquainted with other
tances by him ; you are a master of
ling. At tluN lime yo-.i have considered
ling ; and wiio, except ynursi If, tvill
^V hat other representation shall 1 write?
I no more.
lb« year 1B36. In Jente the 2Gth

* Signature, Bo^iAKiT Dosa.

The circumstance above written, you will make
yourself acquainted with."

Mr. Elliot, In translating the Nagree paper
exhibit L, I at first wrote, ** yourself;" but as
the counsel for the prisoner desired 1 would
translate it literally, and diarged me not to de-
viate in the smallest degree from the words
and idiom of the original, I have now written
" self," the word signifying only »• self" The
Moonshy understands it as meaning the per-
son to whom it was written : I fear the transla-
tioo win tcaroely be understood.

June 12th, 1775.
Lutchmun* Doss examined.

Do you know Mohun Persaud ? — I do.

Did you know Pudmohun Dow ?— Pud-
mohuu Doss was my elder -brother: whjr
should not I know him ?

Mohun Persaud examined.

Is this your hand- writing?— -It is.

Is that the signature of Pudmohun Don ?«^
One of the signatures is nine : I canaot uHi
whose the other is cxaotly.

Have you oAen seen him write?— I have.

Are you acquainted with his hand* writing?
—I have many papers of his writing.

Do ^ou believe this to be his ? — It is my opi-
nion it is not ; if you will order me, I will briog
another |>aper of Pudmobuo Doaa'a baiid-
writing.

Luehmun* Dou examinadi.
Do you know the hand-writing of your brO'*
ther Pudmohun D<Jis ? — I do.

Is the signature his writing?— It is.
Who wrote all the paper? — It is all hii
writing.

[Nagree paper fixed and marked exhibit M.
of which the following is a translate.

Accoimrs.

66.320

As.
7

Amount of a bond.

50,488
10,920

One time
One time

61.408 7

4,013
60,000

11,362 8

2,552
596

Batta at 8 Rs.

One time Durbar and other

expences
A bond on account of a mort-
gaged house
Ready cash 2200 Rs.
On account of Dearcam Chmid

Ghea Tawn 527 Ri.

140,804
3,000

Paid by Chitonaule
time, 1500
1500

at OM

145,804

1

* So in orig.

i^MVMM

«Ha

9S3]

Hf. As. Tomusook
73,435 4 bonds 20000, 20000

13435
Rhut,
60,000 Three notes 20,000, 20,000

Khdt.
10,000 One note 10,000

■ ■ Tomusook.

143,435 Bonds 8

2,369 1 Carrent rapees remain due

145,604 1

(Signed) MouuN Persaud.

PUDMOUDN Doss.

15 GEORGE III. Trial ofMaha Rajah Nundocomar, [961

What was Mahomed ComnwnlP-^ Mn-
sulman.

What cloths had he when lie wa« curiei
out? — ^They thro# the same cloth over a Mas*
su)man as o? er a Bramin.

Were you to see a man carried out la bt
buried, attended by Mussulmeo, ahoald yoa
know whether he was a Bramin or a Mom-
nian ? — I saw from far he was a MuaauhMi;
I should know by Bramins being with hia, if
he was a Bramin, and because tbeOealsaii
about the neck of a Bramin.

rUuestioo repeated.] I abould know it wii
a Mussuhnan, because the Jamma is ticdsa
the rig^ht side.

Do you mean the Jamma of the deoeMed,ir
of his attendants P — 1 mean of the people.

Were you to aee Mussulmen attendiaf a
corpse, should you know it to be a Muaankasa?
— I should conceive it to be a MuasolMi
certainly.

. What persons were attending the body rf
Mahomed Commaulf— I saw Uiat theytsdk
away the body ; I do not know who atteadri
him.

You say yon know Mussulmen from Bn*
mins at a great distance : were the persons St*
tending fthihomed Commanrs corpse, Moflri*
men or Bramiaa ?— Muasnlmen.

Do you mean when you first saw the hdj
carriedout ?— I mean when I first saw the Mf
carried out.

Were you sure they were Mnssulmcn?-*!
can speak with certainty.

if, as soon as you saw the body come sal,
you saw it was attended by Mussulmen, bse
came you to ask whether it was a Bramia or a
Mussulman? — I never asked whether it wasi
Bramin or a Mussulman.

Wafl it because you knew him to be a Ma^
sulman that you did not ask the question ?— I
di<l not ask : 1 heard Mahomed Commaul vif
dead, and I saw Mussulmen attending tiM
body.

Did you hear, at that time, or before, that
he uas deaii ?— 1 heard before.

Wiiat was the name of the man ? — MaboaMi
Coniiiiaul.

Are you very sure ? — Yes.

Are you sure he had not ** Ally" to bii
i name? — He went hy the name of Maboflisd
I Commaul : I never heard of any other name It
had.

[Mr. Elliot informs the Court, that thi
word * Obdahu' on the seal is no |iart of Ihl'
name, but means ** the slave of God.'*]

Kitten Juan Dott examined.

Have you seen Pudmohun Doss write? — 1
have.

Do you know his hand-writing ? — T do.

Look at tliis paper : is it Pudmohun Doss's
hand writing ?-» It ia.

Joy deb Chotcbee examined.

Court. Are you sure you saw Mahomed
Commaul carried out of MahaRaiah Nundoco-
mar's bouse to be buried ?—A. I heard it with
my own ears that Mahomed Commaul waa
dead, aud aaw them carrying him out to be
buried.

Are not the customs of burying Mussulmen
and Gentoos ver^ different ? — ^They are : I who
am a Bramin will not go near a Mussulmsn
that is dead.

How do they carry out a Bramin ? — When
a Bramin dies, they either put him on a cot,
or aticks laid ia the form of a cot : they put a
cloth over his bod^, aud he is carried out on
the shoulders of eight or ten men.

Is there any thing else particular in the bu-
rial of a Bramin ?— When a Bramm dies, all
his relations and friends, and all the other per-
sons of the village, go to him : he is carried on
the shoulders of ei<rht men, and about twenty
other people go with him : they carry him to
the river side, and place him on wood, which
hiai son, if he has any, sets fire to.

Are there any other particular marks to dis-
tinguish the burial of a Bramin ? — There are
particulars in their dress according to their
rank : if a rich man, he may have very va-
luable cloths : a poor man would have a cloth
from five to ten rupees over his shoulders.

is there any thing particular in the form of
the drew of those who attend them ?— They
wear their dooty, and throw a cloth over their
shoulders.

What is their dooty ?— The cloth which
common sircars tie round their lotos.

Are there any more particularities attending
their burial ?— No.

in what manner do they carry out a Mus-
sulman to be buried? — He wears his own
cloths : when they carry a rich man, a fine
dresa is worn : the dress of a poor man is not
more than two rupees.

Are they always carried on a cot? — They
throw a cloth over his body : 1 do not know
exactly the manqer<

Chayton Naut examined.

Did you know Bollakey Doss ?— T did.

Did you ever know Bollakey Doss ex(
I any bond to Maha Rajah N undocomar ?— 1
did.

Did you see him execute any bond ?— I M
myself, and heard it.

Who witnessed the bond yon aaw BeOakiy
Doss execute ? — Mahomed Commaali " " ' ^
and Matheb Roy.

at CalcuUa,for Forgery,

A, D. 1775.

LW

~-Y*s, I di

n«yes

tmnunlnrihe buocl
Ihia 50,000 ruprcs.
■ tbe Maliomed Cominiinl you saw
K bond f — Hia bnDae was at Muxa-
Itcii he wiiiii-s»n) tiie bcnil he sUid
'limr, intl afltrwardB wrai hnme.
b he now r— He is iion ilnd.
J oiher penuii witness the bMiJ ^—
than Mihoraeil CDOiiniul, Malheb

know oue Cmniuftul O'Dien Cftwn ?

e Mine perion ihil wjinnscil the

I ; ihii is Cumniaul O'Dien ; that

neil Commaul.

Jiowihotpaper? [EihibilM.] Yet.

ilf-~AD accaiinl.

nad it N-Yea,

tvad pvl or it. [Ue did n,]

III preaeDl wltea tlje accaiinl vri«
Vea.

waa present ?— I waa preaeot, bdJ
Wwtwe, aud FiiMudden Gooptoo.
prmcut P — Nohody else.
lie Miani u the time, beiidtt
bowbee, and Pussudden Qnnptoo f—
fMiid, OonfptbiEiien, and Piiilmobun

I aure nobndy elae was prFsent?—

lb Nuodocoiiinr »ui also there.

' Nagrfe wtiliinf wrote in jour pre-

tie M^'natiites «( tbe bonain were

ly preicnce.

Irrilinit are the aiTnaturei? — ftlobua

•nd PuitdHihnn Dosa'*,

ihi« BccDuni tigncd ? — At Uaha

wiiiu' '« boute.

n Calcutta.

at Maba najth Nuodacoiaar'a

ve the parlies canie there f — Yea.
^^u preaeat wbeii tbejr eatne ? —
oiHi day, tbo three pei«an« bdbre-
actlled the acoonni in couieraation ;

F riftv. 1*0 of them only were at tbe

tunJocamar, and ligned tbe accounl.
Hvaiiy CntDpBii.v'a bonds at either
MS prodnced by Gun^bisien, Pud-
M, aud Mohun PerMiid f~Yes.
icarae of thetuf — Pudinohun Doss
bvnd* la UnDptbimeD, and Guoga-
I ibetn to Maba Hajab.
Tell what passed on tlie ooeaiion. —

VabiMca'a gi'ing tlie buuiU to Maha.

■ha fUjah aaid, Ynu give ine these

^ymeiil. Maba Uajab told Ciun-
I indorar the bands, « and Turlher
jah Nimdocoinsr said to Ganp>
c JIM aatislied wiib this account?
ch Oiingaliiasen rephed. If any

(hi call you ta an account about

nl, I -will wf, Malta Hiijab baa
tin with 11. Then Guni^biHen tn

■b* anawetahle to bis I'atbrr. hrnib
r any otber penoo, if ihey ahuuld
tbe accDont: apoa which mgbt

bonds were delivered lo Maba Rajnii Nundoe»>a
mar. and be kepi them : Gungnbiuen % ' ' ''
waa lale, be would indorse ibr Imadi ii
marninu; : afler tbey were ijonp. Maha Rajd
NundncDtnar desired me in i-nme to him Mri|A
in the iDDriiinK, and take ibe bnnds to Gtitiga&]
hiuen to eet tbcni inil'irted. Next morniint fl
went to Maba KHJah Nuudoeiiinar'a, and tookfl
tbe Ixinds with me to Moliuii Pi>ruud'a hnna ~
where 1 law Guntfablssen, Pudmobun Ooa^^
and Mobim Peraauil: I saiil to them, IndonT^
the bunda ; on which Giingabissen t
Kisaeo JuBO Doss . when he eame an ii
iiirnl wftN wrote, written by Kiasen Junn Dom^^
and Guiicshisaen ai^oed it and delitercd tjieni
tome: 1 tbin Innk litem away, and delirert^'l
them to Habn lUJah Nuodocooiar.
CVoM- StaminalUm,

Who are ynu ? — Choyton Naut.

What is your buainewi?— I am a Shroff of ^
th« BauyaQ call.

How long have you been in Calcutta?-^!
Ahaut fifteen years.

Where did you come fromf—E bad a lioiu
niMuxadavad; I baieoDeinCah'uitB,

Haie you always reiided in Cab-iitta?—
bate been to my tiwa liouse, and cod

How often P — Three or fnnr times.
Haw lonK have you Et.iyed at a lims at Mm
adafad ? — Hoiueliinea on
somelicnea. liiur rauntbi.

You knew Bollakey Doia : had you any bi
aineis with liiiu ?'- 1 bad aa evnnections in h
siiien wiib him; 1 waa uetl acquainled wilk
him ; Bollakey Duss had a bniise at Muiad^ ,1

IVben did Bollakey Don die?— About nx!l

How lont; bud he lifed in Calcutta bdiMi
IbatP— Ue came tn Calcutta in 1173.

Where did he hie in Calcutta?— Id HotA^
reyiDUll's house in the Burrab Bazar, when b
tint arrived ■■ he afierwai'da liied in sevw
nilier bouses.

How long did he lire in thai house P—1 I
tieve, two ur three months ; I ctutiot tell f

Do yon know what bouse he allerwi
weol to? — To Boijicy Conly'a house, to ll
eastward of Mohim Persaud'n bouw iu the BoikI
rah Buxar ; alter leaving that bouse, ha lii(4^
in Mohun Per^aud'shouiie, with him.

Ynu say you were prearnt at the selllea
of aeconnls between Maba Itajab and Bollah
Uo«s ; at the time of ibe first adjustineol
any books or accounht produced ? — 1 ai
account* hronght.

Were there any the aecond tiia«?— Not d
Ikaw.

Were ynu present the whole lime ? — I waa

What was tbe balance settled ?-~I.S69 r. ■
[Thia aijreea will) tboacmndl produced.}

Waa Ibe balance struck the first or tbe second
lime?— Wbtrntbasud bunds ware dehreKd U
Maha &^ab, tiMii tbe balance waa ttniefc.

IS GEORGE III. Tfial o/Maha Rajah Nundoeomar, [968

maul, and be saul to SeilUbut, " Do yo« m
along^ with liim, and both ot' yoa deliter ot
bood to Maha Rajab NundooQinar.'* Hafior
taken the btind, tbey boUi went avray^ aii4I
went to my owu bou«e.

Do you iiiideratand Peraian ? — I can BcilWr
read nor write it.

Were you acqnainted with Sielabnt?*!
was : he waa Vakeel of Bollakey Doaa.

How lon{f ? — He came aloog witk BoUifcij
Doaa : from tliat time I knew him.

Where is Sielabiitnuw? — I don*tkDav»hm
he ia: 1 henrd he w«»ut with Mohun Pemait
to Jajfgernaut, and that upon return he died.

Wh«t tort of a man waa he ?— .Not a nrj
whitish man, nor a very old man.

Were you acquainted with Mahomed CsM*
jnani P — 1 uaeil to go to Muxadabad : be wm
at that time the servant of the KeblagaVt*
father of Maha Kajah Nundocomar.

In wluitca|iacity did he serve him?— A !!■•
aabeb. [Cum|Miiiion.]

How long ago is that ? — Formerly ; I dn^
know bow long ago.

Did you know him in Calcutta?— I M;
when Maha Rajah's father died, h# caaili
Maha Rajah's io Calcutta.

When did that happen? — 1 do not reoallsit.

When did he oume to Calcutta ?— I da art
remember the express period; It was iaife
Bengal vear 1178.

Was he a very black man ? — Not veiy VmL

Was he tall or short?— Of a auddiv
height, neither very tall nor very KhorL

Of what age wav he?— Witliin 36, tbit il
about C3, or 34, when he arrived at Cakulli.

Where is he now ?•— He died iu Calcutia,

III what house?—! do luit know, I barf
that he died in Calcutta.

Iluw long ago? — It might be fife ariix
years ago.

Uo \ ou rememiier Matheb Roy ? — I did si
know him.

Are you a servant of the Maha Rijab?--J
%va<9 furmt'Hy a servant of the Maha Itsjah; I
am not now, he is out of euiiiloymeot ; I •■

Wbo wrota the Bengal writing on that paper?
^-Poorsodden Goopioo.

Who is that man ?— He waa a writer to the
Maha Rajah.

When dM he write the Bengal account?-^
' Three or four days after.

Where is the niiin ?— In Calcutta.
Who wrote the Nagree writing oo the paper?
— Pudmohun Dosa.

Can you read both Bengal and Nagree ? —
No*

Did yiM see Pudmoben Does write it ? — I
did.

Wliat sort d'aman is Pudmohan Goopioo ?
•—A thin mao,ol:' a yellow rolour.

Yon say Kisaen Juan Dosa indorsed bobm
bonds: I)oyoa know what bonds ?-~-The Coaftp
pany's bonds.

Were any body else present ? — Nobody else
was present.

You say you were present at executing a
bond by Bollakey Duss: was it in bis own
-house, or where?— It was in Hndjeery mull's
house, then inhabited by BoUake}' Does.
■ How came you there ?-- Shack eer Maho-
med, Mahomed Cumaul, and JoydebChowhee
iHid I were present at Maha llajali'a: af\erwards
Bolfeake? Dims came in, and went to Maba Ha-
jah. Maha llajah demanded from Bollakey
Doss the |Niynient of his money ; Bollakey
•Dosa answered, ** I have at present no money, 1
ieaaoot nay it, I will write out a bond." Maha
Raiah Nuudocomar said, *< Very well, write
4mt a bond, fix youraeal to it, and having get
■it B'itnessed, send it to me.'' Bollakey Uoas
Ihen said, ** Give nie l^lahomed Conimaul,
that he may go with me, 1 will give the bond to
Mahomed Couiaul, and one of my own se^-
▼ants, and send it to you." Bollakey Doss
having got disiniti>ion fiom Maha KHJati Xun-
dooomar, went di>wn stairs with Mahomed
Coiinnaul: I liken iite tfot dismissinn, and I,
Joydeb Chow bee, and Sliaik eer Mahoraeij,
went down stairs together. Mahomed Com-
maul and Hidlaki^v Doss were standing there.

Bullakey Doss liavin>>: got into his palankeen,

went to liis own house ; and we four men, half yet in hopes.

« eurree afterwards, wont afWr him. Bollakey What are your hopes ? — That I shall ubuia

Doss was botoiL* that sittinrr in his <iwn houNe ; some employment; I was oucc the Naboft'l

we went to hiui, and sat flown liy him. Four , Ilussanchee,' [cashkeeper]. 1 was likteiM

Other people Mere there ; Malbeb Uoy, Seiila | the Muiiu RaJHli's Hiissanchec.

but, the writer, and Diuian Sing. Bol);»key { What reason have yon to hope for aDflS*

Dosa said to the writer, '' Write out a ImuuI in ' ploymenti' — I have lio reason. Mnha R4}il

the name of Maha Kajah Nimdocoinar." He | is a (freat man, a man of coiisequeuce ; iMB

irntte it in Persian. Having wrote ii, Bulla- i iu hopes heiiiiiy gel me empUi\ inent.

key Dos*i said, ** ilt>ad il." The writer having How h\v^ have >ou had those hopes?—

read it, he Bollakey Duss heaid it. B'lliakfy Frum the time the Slalta lUjuh has beeooit

Doss kuid it y^Vkh trooil. Mahomed Commaul of emp'tymriit ; I have gone e»erv lau SI

aaid it is uiiod. Hitlliki*) Doss had a rini: upon . three day** to his house : he s.iys, Verj- aA

Jiis-tinger : he took il oH', and M*ali»d it ««ith his ■ ult«if I am in employment 1 will get souieibiif

own lirtod: lie iIku saui lo M illumed Com- foryui.

niHUl, Di» yon afhx vonr seal as a inioess: I.e I Uhere was Maiheh Roy hum, and what ii

then said lo i\latheh R'i\, '• Do you ti\ilieNeal ■ \i\s eoiplii\iiirni .^ — Matheb U<f\N was nM il

ofie}ili«iOiiy toil :" he then .«aid lo Seitlabui, } ihedi-mrc ot Burdw:in. I dn noi k<io» wM

" Dii you write tesiimiio]^ ioilii«:'' hi' wrote, , lii^ i-mp-uvinent Has: he u^vd iti citme oofll

and both itf ilH*m siahd.' B'»tiai.ey l>(»ss put • in two or Three days to Maha Hajab Miudatf*

the bond into the banda of Muhoiued Com- mar *a house. .. . .

[

1

»9]

tf/ CalcuMa^fcT forgery.

Ra4 he much respect shewn him art Maba
Rajah Nundocomar's bonse ? — Not macb.

bill Matbeb Roy underataiKl Persian?^--!
lon'l knoir whether be read PeraWiD or net ; be
lad a Perstaa ring ufKin his fin|^r.

What sort of a seal was Natheb Roy's?—
Neither very large, nor small ; a foar- cornered
cat.

Did you ever see him write Persian?—!
lever saw liim.

Did Mahomed ComanI nnderttand Persian ?
-T do not know. He had also a Persian seal
D bia fingfer.

What shape was it? — It was also a fbnr^sor-
«red aeal. hut smaller than the other.

Did Bolfakey Doss wear a seal upon his fin-
der ?— lie had one.

Of what shape was it ?— A Budelamie seal.

Of what size ?— Neither very larj^e, nor vtty
mall.

Do you know the sum of the bond yon saw
xeeoted f*-lt was above 40 and midcr 50,000
opvesa

How do you know that ? — When the bond
rss read "before Bolhikey Doss, in the house
r Bollekey Doss, 1 asked Bulhik^ Doss, as I
id not understand Persian, what was the
rooant : he tuld me between 40 and 50,000
Biwes.

Was it mentioned in the bonse of Bollakey
loan, at the time of executing tire bond, that it
raa for that sum ? — 1 cannot say, I do not re-
lember well : H was between 40 and 50,000
BBees.

- Waa it mentioned at that time ? — I do not re-
wnber, I don't know.

How come you then to know it? — Bollakey
Nfm entered the writer to read it ; 1 heard it,
ad remember that.

Did the writer read the whole bond ? — He
Ul troiA hepnning to end.

Was it only from hearin;jr it read, that you
new the amount? — I knew K from no other
eaeon ; I heard^of the bond nt Maha Rajah's
efore.

Did you hear tlie snm at that time ? — No.

In wiiat language was it read? — In Persian.

Was it read more than once ? — I remember
<» more than once.

Was it read in any other language? — I do
ot renember that it was.

What is Persian for forty thousand ? — How
hmild I say? 1 do not understand Persian.

If you did not understand Persian, and only
1w«r the snm of the bond from its bemg' read
I Persian, then how can yon tell the amount
r the bond ? — You have sworn me upon the
'kfer of the Oan^ : how can 1 tell more than
remember?

Tlie Court, desirous of elneidatlnff every part
r this witness's evidence, asked Mr. Elliot, if
e was certain that the witness under&toud him.
fr. Elliot answered, " The witness seems to
iderstand what I have said perfectly well ; he
iderstands Moors as well as any person I
I're examined here in that lan^^uaffe." N.B.
^ tntn had desired lo beezaminea io BeDgaf,

A. D. 1775. [990

did not nndentand Moon

alleelegr that he
well.

Messieurs MlioU Jackson, and Jebb, swora^

Mr. EliioL The man seems to onderstan^ *
what I said perfectly well. I have no iluubt of
his understanding me : he seems to me to un- '
defttand Moors as well as any man 1 have exa-
mined, and speaks it nnire grammatically than
common Bengalers tin : I am sure he nnder^
8too«l the qnestioBs I asked respecting the suin.

Mr. JtfcArsofi. When Mr. Elliot began to
examine this witnesa, he desired me to gire
particular attention, durin^f «he examination, to
the evidence he jpive with regard to thepre*^-
ciseness of the interpretation. I did so, and
conArm what Mr. Elliot baa aaid in erery par-
ticular.

Mr. Jebb, The witness ^erfbetly imdentoi^
Mr. BIKot ; he nBderttamh Moors perfectly. ^

Mr. Westtm^ one of tbe junr, well oonw erant
in tbe laiiguoge, being asked whether ho.
thought the witness understood Mr. EUiot, a|i-
swered, he certainly uodenfm»d bin, be mi*.
d^rstamla Mpora perfectly well, and speaki it.
bflttar tban he does Bengally.

Mr. Jebb interpreted to him, in Bengally, M
the qtiestiona that had keen pnt to him in
Moors, respecting tbe sum of the botid, to whicli
be answered,

A, When tbe bond waa-reft^ in Persmn by
Bollakey Doss, as I did not understand Persian,
I asked the amount of the bond, and Bollakey
Doss told me it waa more than 40,000 and noder
50,000 rupees.

Did Bollakey Doss do any thing more than
pot his seal to ft ? — No.

Did the ethers ? — ^Both tbe witnesses, whose
seals are there, wrote something over tikeir
seals.
- Dt> yott know what they wrote? — ^No.

Did they write much?— No.

Have yon Bolhikey Doss's seal ? — ^No : the
papers sealed were in the possession of Pud*
mohuu Doss.

Did Maha Rajah readily agree to take tbe
bond? — lie did.

Was- he asked more than once to take it ? —
Maha Rajah pressed him to give money; he
said, he could not give money, hut that he
would giwe a bond.

Did Maha Rajah, withont repetitioOi or
pressing, agree to take it ?— He did.

Did Bollakey Doss put his bands together '
in a supplicatin^r posture?— He pot hfs itanda
thns, [joining them], and said, I cannot pay
money, take my bond ; and he agreed to it.

In what room of Bollakey Doas's was the
bond executed ? — In the room where he sits ; a
loniif room.

Who produced the ink? — Bollakey Dosa
went half a gurry before : when we came, a
Sicca dewal waa uy him ; nobody went for it.

What aort of an iak-etand ? — A aitver octa-
gon Sicca dewat; h was neither large nor
email.

«91]

15 GEORGE III.

Do yoa remember Bbllakey Does'f seal ? —
if I was to see it, I shoald know it.

Should joa koow the impression ? — I should.

ShooUl you know the impression of Maho-
ned Commaol's, if you saw it? — I should.

(Should you know t|iat of Matbeb Roy ?— 1
nhould.

By what means should you know Bollakey
Doss's seal ? — 1 took particular notice of it, at
that time, and should know it.

Should you know it upon any paper?— Not
upon any other paper ; upon the bond I should.

When the Mohurir read the Persian bond,
was BoUakey attentive ? — He listened with at-
tention.

When be said, Veiy well, did he appear sa-
tisfied ?— He seemed, I thought, pleued and
contented.

What was the sixe of the bond ?— I have
taken an oath ; I cannot speak with certainty :
if I was to see the bond, I should know it.

Do not you recollect the size ?— I do not ; I
have taken an oath.

How come yon to remember that one of the
•eals was smaller than the other? — ^Wtth my
own eyes I saw that the seal of Mahomed
Commaul was smaller than that of Matheb
Rov.

Did you not see the bond with your own
eyes ?•— I saw the bond ; I saw also the seal.

What was the size of it? — How can 1 re-
member ? a bond may be krge, or it may be
•mall.

[A bond shewn him.]

Is this it ?— No.

Was it larger or smaller than that? — Shew
me the bond, and I shall be able to tell.

How can you know that bond from another
by the impression of the seal, if yon do not
know those seals upon another paper ? — There
is Sielabut's hand-writing, and two seals be-
sides Bollakey Doss's: by these marks I
know it.

SAn impression shewn him of Matheb Roy's
.]
Do yon know this? — I do koow it.

fAn impression of the seal of Commaul
O'Dien shewn him.]
Do you know this ? — I do not know it.

LollauDoman Sing sworn.

Did you know Bollakey Doss ? — I did<

Did you ever know Bollakey Doss execute
any bond ? — How can J know any thing of
former works ?

[Question repeated.] — ^This I have seen.

[Question agiin repeated.]^ Yes, 1 did see
him one time.

Do you recollect at what time you saw him
execute a bond ? — 1 do not remember the ilate.

Do you mean the particular day or particular
time? — It is ten years ago: how should J re-
member the time ?

In whose name, or for whom, was the bond
you saw executed ?— In mv presence be wrote
a bond in thoiHUiie of Maha Rajah Nundo-
oomar.

Trial qfMaka Rajah Nuniocomar, {99f

Did yon see bim execute it ?— >I did with
my own eyes.

Were there any witneasec to the bond yen
saw executed?— There were.

Who were they P-^One Mahomed CommanI,
one Matheb Roy, and Seilabut.

Did you see them witness it ?— Yea ; I did.

Do you remember the amoant of the bond ?
— It is ten or twalve years ago, it is impoaaiblt
to tell exactly': 1 can tell by gueaa.

Tell by gueas.— I think 46 or 48,000 rtmccs.

Did you know a person of the name of Csoh
maul O'Dien Ally Caw»?— Yea; be ia here.

la Commaul O'Dien Ally Cawn the laas
you mentioned by the name of Mahomed Csoi-
maul? — ^Tbat was another man: I aawUai
before I saw this now.

Crou-Examinatum.

What are you ? — 1 am in service.

Whose service are you in now ?— I es
through question and answer with Roy Ra»
churn : [the son-in-law of Maha Rajah Nah
docomarj I am in his service.

What do you mean by goin|f tbroegfa wam^
tion and anawer with Roy Radachumr^I

S> through question and anawer with Rijik
ussan Roy.

What do you mean by going through qaei*
tion and answer? — When Rajah Buasan Biij
sends letters, I deliver them to the govcraar,
or general, and get the answers.

[Question repeated.]--! can say no mere.

tourt to Mr. Elliot. What do you UDde^
stand by question and answer? — A, Inndv^
stand the worda he makes use of * jewMb
sowaul' to be a conversation : it is commsalv
used for an examination, but is never appfaSl
to a correspondence.

Q. Who is Raja Bussan Roy ?

[Mr. Elliot says be was the {lerson nn-
tioaed by Commaul O'Dien Cawn, as a reto-
tion of Raranarrain Roy.]

How long have you been in the service of
Roy Radachurn? — Eighteen or 19 months.

How often have you been in Calcutta ?—l
have often been in Calcutta.

Where were you born? — At Patna.

When did you first come to Calcutta?— Is
the year 1172.

With whom did you come? — 1 came alone.

Whose servaut were you when you fint
came? — I was in the service oMUjah Derrick
Narrain.

Was Rajah Derrick Narrain in Calcutta .'-^
No ; he was at Patna.

Into whose service did you enter whenyos
came to Calcutta ? — Riyah Derrick sent las
do«n.

liow long did you remain in hia servios?-*
Two years since he died.

Into whose service did you enter at bii
death ? — When he died I went to my o«i
house.

Where was thai ?— At Patna.

How long did you stay at Patna ?—Wh0
tlie governor, Mr. Hastiogs^ weot to BaoaM

at CalcKtta,for Torgtry. A, D. 177)

When dill Bollakcy Doss

[qu. BenKrcKj I went willi .lim : I then came
In Patna, klmd lliere as laiii; as the Gnveruor
tlitl, incl llien reliirnetl la CalculU: it was a
uionth more lli&n ln>u years.

What were ynu emjiloyeil in, all Ilie eight
yeir* from your cotniDi; toCatoulUf — Iwas
m the serrice of Rajuli Dpirick.

Bow were you eni|iloy«tl f — I returnEi) to
PaUiB ID 117S,in llieinunlh ofCgrleckt, a |iar~
ticriiUr r^asl of the Uindmis.

C'aa ynii reail Fersiaiif — I can.

In wliat month were you heref — 1 ilo not
remember whether it was in Bysack, or in
Joiw, it was one of them : it was iu the rainy

What businfU iliil you came to Cnlciilta
npon? — I wag sent to Maba Itajali NudiIo-

What house did you live in alCalrulUF —
Al Joorabadun.

Where did you see Ibis bond execuled that
TDu speali ofi'— Al tlie house of Uuzzrey

Did Rnz'/rRV Mall live in the bouse?— Bol-
\ikfy OiisH lived lliere,

Hon cnmvynu in the linuie? — 1 fcequeotly
went bacllKBrda and fur n Urdu there.

fVltal kiud of a uiun whs BolUkey D'mh?—
Of a yellow colour, and old.

IVhO were precNit at iIig exrcuiion of llie
bond? — .MahnmedCuntiuiiul.Jnyilebt^hnwbei^,
ChoyKii Naui, tJhukKer Maliuiued, ISeilaliui,

>yii<ii ;
ih«b R<

IV, and mjsell'.
ifwdy else preset

IS many years ago:

-—There was

Wb»l was hia name!

I liave ('I'^ifi.

Old yuu pter Icnnw it F — I iiaie forgot
Were you ac(|iiainled wilh all the ppuple you

named t — I knew them all before, except tbe

Huw long did you know Mabomed Com-
tnaiil F— I did mit know l,iii> i.efore I u>ed to
I ihe house of Maha

liil the writer belong to Bollakey Doss?-

■^1

How came you to the hu
Duw that day i'—I used now
it liappeiit'd 1 vrenltlieii.

(I'M] you any particular r
spnt liy chance : as 1 used li

•t then

>< tlier

when J

Ror aad tielUh

iVhst IJmeof iheday v

BBOII to KO? — [
go before, lo I

went?— Halbeh

? — Before mid-

uty oUier persrin in Ihe roon
-Niilindy but Malbeb [toy ai
it near luid-day when you

ut.'— It

in tb«
-They

■ n<dlakef Data there when you fitsl

irlhece.'— .No.

was there hefi

Did any on

Dons canief—

Who came

alone, only hii

[Of)*

N-It misbl
half, that [

ire he oaine.

e come lo them before fiolialiey

-No.

wilh Bnllakey Docs?— He cam*

kiihii

I par. _

with him?— Nu.

What 'did he do wheu be came? did ha
speuk to vou? — lie did not sjieah to aoy body :
be took litf his clothes and sat down.

When did the writer some J— All. r Bollahey
Doss had armed, halfagurree after Mahomed
Commaul and the others came.

Did ihey i-ome before the writer, or after ? —
Wlien Boilakey Duss arrived, he called lor tb«
writer, and the writer tiril arrived. ■

pavti between ihe

passed.

Do you know that for certain ?— I tell it foe
cerlaiuly.

Are you very positive there was no convena-
lion between It'illsikey Doss and the HrilT?—
Tli^re was no question and answer lielivecu
them ; there was no words lielweeii them.

When Bollskey Dosa came into Ihe house,
did he conie diiectty into Ihe room where yon
were? — lie came directly to the plate where
be sat.

Are you sure he went lo no other room ? —
I was siitiiif; in the place where Bidlakey Dose
afterwards tut; I saw him sit down.

Did you see hiui «Dter the doors nnil come
up alaim?'-'! was silting above a

u/Boliakey DosiF^-No .

, for certain? — 1 tell i

uut lee him colne up stairs, ur come iulu the
doors ofibe hoiite.

Did hecotneiua palaaquia?--! was within;

so much uuiiie.

When aid the wrilercoraelo?— Wheu BoU
lakey Don come into the hou»e, he aal down,
Bu<l ordered the wriler lu he cnlled.

Who dill Boilakey Doaa tsud tor the writer F
—His kidmult;ar.

Whatdid hesay toliim?— ItisloDgago: I
do niiL remember.

How long WSJ ilbefore the wriler came? — I
do nol know exactly, it was a little time.

Did (hey mention his name? — I do not le-
meinber their tending fur

writer bv nam.
in the bouse,
nut ot'^the house 1—A. f do not know.

Could Seilnbut write I'ersian ?— He could.

Did Bollikey Doss send fur the
reclly when he came into the mnui
sal down a lillle, said a lew words, auJ ibi

How long?— He sat down, spoke two
four words to Seilaliul, ihen sent i"

What did he say to the writer ? — A

arrival Mahomed Commaul auii the otb
sons beliire mentioned vaiiie.
Did Bnllakey Doss gi'

di-

Ihe

per-

995]

15 GEORGE III. Trial tfldOa Rajah Nwuloamar, [W6

writer before they came in P— After they came,
be ortiered him lo write.

Did he before P — No orders were given he-
fore they came.

What did iie order him to write f—Afler
they came, BoUakey Doss gave directions to
the writer.

What directions did be give P— What the
writer wrote in the bond.

What w«s thatP — I do not remember: it
' may be seen in the l>ond.

Do you remember what Bollakey Doss told
the writer?— He toM him the subject of the
bond in the Moor language.

What was thatP — 1 do not remember i it is
what is in the bond : if I remembered it, why
should 1 Iceep it with me P

Do yon remember nothing that was in the
bond P— 1 know nothmg at all, not a word.

How long was the writer writing the bond P
—About a gurry.

Did Bollakey Doss repeat once or twice, or
bow often, what was to be wrote in the bond P
—As far as I can recollect, he told him to
write a bond, to this particular purpose ; and
then directed what he was to write.

What was the sum P — About 47 or 48,000
rupees.

Was any mention of interest, or any thing
else, in the bond P — I do not well remember.

Do you remember at all P — I do not.

After the bond was wrote, what passed P—
Having prepared and finished it, he pot it in
the hands of Bollakey Doss. Bollakey Doss
returned it to him, and said. Do you read it
over; he then read it once in rer^an, and
gave it to Bollakey Doss.

Was it read more than once? — It was not.

Are you sure it was read in Persian P— I
am.

Did any thing farther passP — Mahomed
Commaul was sitting next to Bollakey Doss :
he said, Do you witness, Mahomed Commaul

fmt his seal : he said to Matheb Roy, Do you
ikewise witness it; and be sealed it: he tike-
wise said to Seillabut, Do you likewise witness
this ; and he signed it.

Did any body else write on the bond P — No-
body else.

Did Bollakey Doss seal the bond ? — He did.

When did he seal it?— He first put his seal
to it, and then the witnesses.

Who sealed the bond first P— Mahomed
Commaul.

Are you certain P — I was sitting, and saw him.

Are you certain ? — I say so.

Who sealed next P — Matheb Roy.

Do you speak with certainty P — I do speak
with certainty.

Who sealed next P — Seillabut then signed.

Are you certain P — 1 am ; 1 speak with cer-
tainty.

Are you sure, that nobody else wrote after
Seillabut P— Nobody else wrote but Seillabut
and the writer.

Did uobody else ose a pen P— No: nobody

What ! nobody bat Seillobut and the wriltrP
—No.

What plaoe wet the bond ■ealed in?— As is
customary in Persino bonds.

What is that costom P— Thev write this
way (oUi^ely). The right hand in the fkm
for the seals.

Show the. positkm of the eeala on poper.—
The bond was wrote obliquely, from right hani
to left ; ihe seals in a line, on the manrin.

Whereabouts did Seillabot sign P— Near Ma-
homed Commaurs seal, he signed it.

Do yon know Bdhdcey Doss's sealP-^I do.

How do you know itP— I knew it,heoao«
he used to write letters to my former maMcr
Roy Derrick.

Do you know Mahomed Commanl's teal?
— ] do : I frequently saw it on his finger.

Should you know it, if on any other paper
than the Bond P — I certainly should know tbt
impression of the seal wherever I saw it*

What shape is itP— A four-cornered seal.

How often did you see Mahomed Connassl
before he ngned this deedP— When I weatts
Maha Rajah*s, I sometimea saw him, ad
sometimes did cot.

How often have yon seen him P— I caaail
count how often I have seen him.

Have you seen him twice P— I cnnnet s^
I have seen him twice. Wh^ ahonld I aiy
twice P I have seen him many times.

Did yon often see hia sealr— I need to m
it on his fingers.

Did you ever take it off his fing^er, and en-
mine itP-— I have seen the seal on his finger. I
never took it off to examine it Why shori4
I take off the seal of another man P

Then you never did take it off to exaaiss
it P— I Jid not. Why should I take the Msl
of another man P

Do you mean that, if you saw the impref-
sion, you should be able to read the name; or
should you know it from any other circaoh
stanceP— -When I see it, i will think of it I
shall be able to tell.

[The question was several times repeated, hni
no answer could be procured.]

Do you know Matheb Roy's seal P- —I koow
it a little : if I was to see it on the bond, 1
should know it.

Should you know it on any other paper tbu
the bond P-—i shall be able to tell when yoi
try me.

Do you believe you should P

Interpreter, He does not chnse to answer
the question. I can procure no answer froia
him.

Q, Should you know the seals fimn tbdr
places on the bond, or from the seals tbsoi*
selves P — [No answer could be procured.]

[Question repeated. 1— I before said, obcv
me the bond, and I will tell.

Will you say, whether yon sboald know tbs
seals from their plaoe on the bond, or froM Ai
seals themaelvesP— What t know I say t If
you shew me the bond« I Ihink I sbooMlMf
theseaii*

§97]

td CalcMaffcr Fcrgniii*

A. D. ITtS.

[99B

Whtl mn WM M atbeb Roy *■ seal ? - • It wtt
lamr than the aeal of Mahomed Commaul.

Shew how large the aeal was. [A paper
gifeo him to describe on.}— I am not a setl-
tetter. How should I nark UP Having sworn,
I will say what I remember; I eannot say
what I do not.

Making a mark is not speaking words.
[He is again asked to make a mark.}

Witneu, Observe that yon order woi6 to make
a mark. fHe makes a. mark near the sice of
the seal.]

What waa the shape of BoUakey Doas's
seal ?— A buddamee seal.

How large was that seal ?«— Not very large,
nor very small.

Who brought the inkstand ? — Hit kidnnl-
pur.

Are yoo certain he brought il in ?— Very
certain.

Was he sent for it ?- - •The kidmutgar bronght
it.

Was it before Mahomed CommanI, or the
witness came ?— Before.

What was the sicca dewat made of ?— -Silver.

What size P— The size they generally are.

What size is that ?— [He describes by his
finger a» before described. J

What size is the bond ?— I remember there-
nbnnt half a cubit, nearly the size of the bonil.

What M-as done with the bond P-— When the
bond was executed, he gave it to Mahomed
Commaul, wham he sent with Seiilabnt, to
give it to Malia Rajah Nundocomar.

Where did the witness go to P— A little after
the departure of Mahomed Commaul, and
Seillabut, 8haik Mahomed, Chovton Naot, and
Dbowtleb Chowbee, having got tlieir admission,
wtfol away. Haifa gurry after that, I went
iway too.

Was there any conversation passed, whilst
the writer sii^ned the bond P — Before the
srriting of the bond some conversation passed
between Matheb Roy, BoUakey Ooss, and
myaelf.

"What was it ?— I will relate to you what I
remember. BoUakey Doss said to Seillabut,
I have been to Maha Rajah Nundocoroar; and
sra have settled every thing about the jewels.
He is my patron, and 1 have done accordiog
to his pleasure. For such a businesaastbis, it
if DOt proper to have any differenee with him.
I am therefore to write out a bond. Seillabut
and Matheb Roy said. You have done right.
He is your patron ; it is proper you should
not do any thing contrary to what he says.
After that they called for the writer.

Were Joy deb Chowbee, and Mahomed
Commaul there P— No : they came after.

Hid you mention this conversation to any
one before P— I never did.

Was there no mention of these jewels in the
bond P— It may be ; but I do not remember.

Was BoUakey Duss pleased when the bond
Wjsa read P— He was pleaved, and satisfied.

Did Bollskey Doss understand Persian P —
Be DttMt have onderstood Pershm ; he said it

I

was f erv well, but he did not write it ; and 1
do not know that he could speak it : 1 neves
heard him.

Did you, by any other means, know whether
he understood Persian or not P — I did not.

Did Mahomed Commaul say any thing P—«
He saki nothing.

Are yoo sure P— He did not

Did not Mahomed ComnMul say it was very
well P — I do not remember.

[He proves a seal of BoUakey Doss to three
envelopes, which had been opened, and whicb
the eovnSel for the prisoner offered in evi-
dence, but waa overruled by the Court, there
being bo signature from BoUakey Doss to the
papers inclosed, nor any proof, whose hand*
writing they were, or that those papers were
originally inclosed in the envelopM ; becaiise^
if they were allowed to be given in evidence^
they might impose what papers they pleased
on the Court, by nutting them into the enve*
lopes. The jury having desired to look at the
papers, the foreman observed on inspecting
them, that it was an insult to their understandiogy
to offer those papers in etidence, as papers of
the date wiiich tney pnrportied to be of. . .

The Counsel tor the Prisoner speaking in a
warm and improper manner to thf jury,

Cotir^. This is a manner m which the jury
ought not, and ahall not be spoke to. The pri-
soner ought not to suffer from the intemper-
ance of his advocate. You, gentlemen of iho
jury, ought not to receive any prejudice to the
priaoner on that aoeoont, nor rrom the papers
tbemaelves, which not having been admitted
in evidence, you ahoald not nave seen ; and
having seen, whatever observation you have
naade, yeu should forget : it is from what is
given io evidence only, that you are to de-
termine.

Jury. We will receive no prejudice from it.
We shall consider it the same, as if we had not
seen it : we will only determine by the evi«
deuce produced.]

Meer Ustud Ally called.

Did you know BoUakey Dots Seat P— Yea»
Meer Cossim Ally Cawa sent me with treasure
from Rotas to BoUakey Doss Seat. 1 deli-
vered the treasure to him, and took his receipt
for it.

Where was BoUakey Doss at that time P—
At a place called Dues Oauty.

Where is that place P— To the westward of
Sasserum.

Is there any seal to that receipt ?— There wia
one seal of his to it.

Where has that receipt been ever since P—
With me ever aince. [He produced a paper,
wrapped in a wax-cloto, closely pressed and
donbled into the size of less than an inch kouare,
bound tightly down with a string, which was
cut open, and the paper carefully unfolded, and
produced as the original receipt.]

Did you see Bullakey Dovs affix bis seal to
the paper P— if you want to know, there ia aa«

999]

15 GEORGE IIL Trial ofMaha Rajah Nuniocomar, [IQOO

other flromastah of Bollakey Does^t in court ;
call liim.

[QuestioQ repeated.]— I did see it with mj
own eyes.

How loofi^ af^o is it P — Look at the paper, yon
will see the date there.

Court, You roust give a positive answer.^
A. It is ten or tweWe years ago ; it was in the
time of Cossim Ally.

What are you at this time ? — I am at present
in no business : J come to seek employment in
this part uf the country.

How long have you been here ? — About two
months.

From whence came you last f— From
Patna.

What were yon there ? — In service.

la what capacity ?— With Sheub Roy ; I
was Daroga of the Mint.

What was your business immediately before
your leaving Patna ? — I was out of employ*
meet, and obliged to come here to seek it.

How long since you left Patna? — About six
months past.

Wtien were yon last in service ?— Since I
left8hetab Roy^ I have entirely been oat of
service.

Tu whom have yon applied for employment
since you came to Calcutta? — It is now eight
years since I came to Calcutta : I had an inter-
view with Maba Rajah Nundocomar, who pro-
mised me that, God willing, when he got em-
ployment, I should.

What employment did you want?—! wanted
an appointment under Molauck ul Dowlah,
that 1 might receive some monthly wages.

When did you first see Maha Rajah Nun-
docomar?— When Major Munro brought me
to Calcutta, I first saw the Maha Rajah.

How soon did you see him after you came
to Calcutta ? — Aliout four days.

Are you sure of that? — Can there be any
advantage in telling a lie on this occasion ?

In whose service were you before you served
Shetab Roy ? — I was formerly a servant of the
king at Delhi when he came to Ben^^al : 1 was
afterwards in the service of Meer Cobsim Ally,
and after that with JafBer Ally.

When you came from Patna, why did you
bring this paper with you ? — No no; 1 was at
Muxadavad, when hearing of this aflair, 1 told
to some body, I had a paper with Bollakey
Doss's seal to it.

Who did you tell so ? — 1 said no such thing ;
I never heard of this affair at Muxadavad.

Did you know any thing of this affair when
you left Patna ?— No.

How came you to say you know this affair ?
ivas it at Muxadavad that you told the man you
had this receipt?— I left Muxadavad in the
month of Maharun.

Did you mention any thing of this paper to
any person ? — No ; why should I mention any
thing of a paper of my old master's ?

Think well, and say whether you ever men-
tioned having this pa|ier to the Maha Rajah, or
10 ^y other person?— Why should 1 tell any

>

one I had such a receipt f if aoj oaa en say
that I did, 1 deserve punishment : I bad a re-
ceipt of my old master's in my poascsaion ; if
I had given it to any one, and my cfaildreo hid
fallen into the hands of my master, tbey would
have been slain.

Who desired you to bring this reeaipt here?—
Maha Rajah Nundocomar asked if I bad sacb
a receipt ; I told him I bad, and he desired
me to bring it here.

Are you very sure yon never told any per.
son of a receipt, that could tell Maha Rajsk
Nundocomar? — I told no one of the circiD-
stances of the receipt.

How did Maha Rajah know yoa bad a te-
ceipt:*— In the course of conversation, he
mentioned to me the circnoistancas of the per*
secution - I told him 1 had a paper with a Pv
sian seal to it, and this was the paper.

Can you shew in Bollakey Boss's books aiy
account of the receipt of tliis money P

Court, Look for it.

Witneu, I said I had a receipt of BoUakey
Doss's ; this is the paper.

Did yon, at that time, tell the Maha Rajak
any thmg more than that you had a Perma
seal ? — 1 said that I had the impression sf the
seal of Bollakey Doss.

What did you mean, when asked if yoa toM
Maha Rajah Nundocomar, that you said p«-
ticnlarly you did not ?— I excepted Maba Bt-
jah Nuntiocomar.

Court to Mr. Elliot. Did be or not ?— /.
He did not.

Q. to Witness. Why did you bring tbcrs>
ceipt to Calcutta ? — A. I did not bring it l»
Calcutta ; 1 lef\ it at Muxadavad : when 1 tsli
Maha Rajah 1 had such a receipt^ be desired I
would send for it : 1 sent a servaot of ray 01%
of the name of Berzey, to Muxaduvad.
* Have you a house at Muxaduvad ? — I hire.

Why did you say you came from Patna?—
I went from Patna to Muxadavad.

How long had you l>een at Muxadavad be-
fore you left it the last time ?— I arrived it
Muxadavad on the month Zeehidjah ; 1 Idlit
in the month of Mahaurrun this year.

When did you come last to Muxadavad?—
1 arrived there on the tenth of Zeebidjab, and
left it on the 22nd of Mahaurrun.

In whose possession did you leave thesetl
at Muxadavad ? — 1 left a little box with my
wife, in ^hich was this paper.

Did you send to your wife for the receipt.'—
Yes.

Did yon send a verbal or a written message r
—1 wrote a note.

In what language ? — My own was in Per-
sian.

What countrywoman is your wife.^ — A Ben-
gal woman ; a native of this country.

Does your wife understand Persian ? — No;
how should she ?

What did you write to her in the note?— I
Wrote to her to send the receipt in the Tavoie
bauzu.

What is the meaning of Tavuxe bauaa?— ll

1001]

at Calctttta,Jbr Forgerjf-

A. D. 1775.

[lOOf

is what it kept un^er the jamma, bonnd rooDd
the arn) : the receipt was abut up in the Ta-
vuze bauzu.

What answer did your wife send ?-— She sent
the Tavuze liauzu, and a note inlorming me
•be bad sent it.

Did you read it ? — Does not a man read a
note be rtrceives ?

In what language was it written f— In Per-
sian.

Did she write it herself?— Do women know
bow to write ?

Does any boily in the hoose write Persian P
—She would probably send for a Mulla* to read
my note, and t2:et the answer wrote : I am a
poor man, and have no serrant of that sort.

Were you used to wear this Tavoze banzu
mbout your arm ?->-I formerly did, but since
my roaster was gone I threw it into a little
box.

Why did yon ? — My master, to whom it be-
longed, being* gone, 1 threw it into the box :
why should I keep it any longer ?

Did you then consider it of any further
▼slue when your master was gone r — When
my master was gone, I was at Rotasgur,
where my master bad sent me : I kept il out
of fear.

Why did not you gire It yonr master P — I
did : be said, K^ep it yourself, and I will take
it of you hereafter : it remained with me.

What did the treasure consist of, you <&rried
to Bollakey Dossi?— They were bags of rupees
which 1 paid to Bollakey Doss.

How many ? — It is impossible to say how
many bags in so large a sum. There were
many basrs containing 2,000 rupees; some
might coDtain more.

Where did you carry it from ? — Rotasgur.

To what place? — 1 was carryiocf it from
Rotasgur to tlic Nabob Cossim Ally Cawn : he
ordered me to carry it to Bollakey Doss.

Where was Bollakey Doss? — In a tent at
Do'>rgauty.

How far was that from Rotasgur?— It is 12
coss from Sassiram, and that is three days
journey to Rotascj^ur.

Who went with you?— My own people.

How many ? — 150 horsemen, and 150
peons.

Can you produce one? — I cannot tell where
to find one. 8ome are at Muxadavad, some at
Patoa, and some dead.

Cannot you produce one ?— How should I ?
I know of none.

Where is the man that brought tlie receipt
to you from Muxadavad ?— lu town : I will
bring him to-morrow.

What is his name ? — Buzzoo.

What sort of a man is he? — A poor roan ;
young, not. old, and shaves his beard; of a
middling size, neither fat nor thin.

Is he your servant, or any other person's ? —
He is a raffeek of mine ; what I get he eats
with roe.

* A schoolmaster, or learnt d man ; to Ara-
bic term.

If he is a raffeek, why did yoa before say
you sent your servant? — He is called servant
sometimes, sometimes a raffeek, and some-
times a brother.

How' many servants do you keep? — I have
likewise a slave boy ; he and I eat rice toge*
ther.

Hare yon any other servant? — I have bo
power to have servants.

What religion are you of ?— A Mussulman.

What is Buzzoo ? — A 8haik (Mussniroao.)

Have yon ever had any promise for coming
here P---1 have not received the smallest thing
from him ; [pointing to the prisoner] he only
said he would procure me to be a servant of tbo
Nabob's.

When were yon to enter into your employ-
ment at the Nabob's?— When he (Maha Ra-
jaK) should be released and sent to bis own
bouse, he would give it me.

At whose expence have you lived since yon
have been at Calcutta ? — Tlie circumstance is
this ; I brought some rupees with me to Cal-
cutta.

Yon have been long out of employment ;
how have yon subsisted ? — I had jewels -toil
valuables ; I have sold them all, and by that
means maintained myself. Major Munro gave
me 2,000 rupees.

Was Bollakey Doss the usualShroff of Cos-
sim Ally Cawn f — If he was not, why should
he pay the money to him ?

Did you know of Cossim Ally paying any
other sum of money to Bollakey Doss ?— No ;
I was a servant, and di<l only as* 1 was ordered.

Did you ever pay any money to Bollakey
Doss for Cossim Ally betbre ? — I never did.

How do yon know he was a banker? — I
had two bills on hrm from Cossim Ally.

Whose province was it to settle the accounts
with his banker? — How should I know? I
was a poor man.

[Question repeated.] The name of the of-
fice is Mustoafah : his name is Mustowaffee.

How could the Mustowaffee settle the Na-
bob's accounts without this receipt ?— At that
time the conntry was in i;reat troubles : his
household was in great disorder, and the Na-
bob ran away.

What part of Calcutta do you live in now ?
— I live on the 8ubah Buzar.

In yonr own house ? — In a religions hoose,
in which I live for nothing.

Did yon, or not, know of this affair at Muxa-
davad ? — No.

[Mr. Elliot, I cannot be positive that he said
that be heard it at Muxadavad ; and that may
serve to clear up the inconsistency, in his say-
ing he had told no one, as he had not at that
time told the Maha Rajah.

Q, to Mr. Elliot. How long is it since the
date of that receipt ? — A. I l^lieve ten years
and two days ; hut 1 cannot be certain without
calculation.]

Kisien Juan Dou examined.

Do yoa know toy thipg of this trtnttclitii f
—No.

1005] IS GEORGE HI. Trial ofMaha Rajah Nitmiocomar,

preMnt when
knDO Buy

[1D«

Jtfcer Vuud Alii. You »er
the moDey ww paid.

Q. to tinea Juan Don. Do yon
lhiin{ofU?~J. I dn nnt remember.

Hail ^ou be^n [iTeienl nhrn m> Iar4fe a sum
of maiiey *•■» p*id by ihe princa of liie wiun-
Iry, fiboulJ ynii not have kanwii il P — 1 don't
remcrnber: ifreatmina of money vne paiil in
the house, from 35 to 50 lucUs : I cau'l re-
niemlwr all.

Q. to Uaud AIU. Have yon been al Paini
■ince HlieUb Roy difd ? — J. No: I boTe been
to Calculla, alau to Puroea, and other ptncea,
ia aearch of employment.

Q, la Kiatn Juaa Dnu. ■* there a sepnraie
■cooiint of Cosaim Ally Cawn?.—A. There is.

Why did you look over ilii* book, knowli))^
it ia the other? — It wuiild likewise hare been
in Ibii book : I could ftod eakier in the other.

\

Junf 13IA, 17T5,

Mr, Elliol examioed.

Q. What is IliP Persian word for 40,000 ? —

A. ' Chekill baznar:' in Mirara it m ' cbaleese

baiur.'

Wbat if 50.(K)0? — It it ' pinjaw haiuar' in
Periian. and ' pilluhus huiaar' ia Moors.

Mr. Wealon, noe uf the jury, added, that in

heagtMee ilietum* were the same «i«io Moors.

Colonel Goddard examined.

Were you the officer who took llotasgur.' —

What year ivaiilr'---I don't recollect the
vear Itv iW He)(ira : I can tell by that of our
Lirilt'it wiiaia 1764.

When did Casnini Ally leave Rolargnrf-

I

Were you at the battle of Muxat* ? — No.

When was it fought 7— The a3nd or S3rd sf
Oclober. 1784.

Had Cciisiin Ally then left the provineea?—
After taking Patna, m I76S, Conim Ally had
no place of Birenglfa left in the prorlncei, ei-
cejiiing Kills s.

Can you tell «h«re be fled across the Cara-
manesBa P — I wa§ wounded, and kfi al Patna :
he paised the CarHmanasaa at that time : aAnr
Ihe teduclion uf Palna, Ibe army passed into
tbe Caramanassa, followiuK CusMm Ally.

When did he return ?--'lle returned mlolhe
pra?incet in 17€4-

Mr. Hunt examined.

Hr. Hiii-U. We look Patna in NiiTeinbrr,
1703: our army niarcbed Immedinlcly to the
Ciraniani^aa : L'ossim Ally and the troops
with him pia^ the CHramanaasa at that tine :
•bout November nr December, 1763, he re-
turned to Ihe proTinces, with Sujah nl Dowlah :

about April, 1?W, nnr army rctreeled
na : ihecannunadefrom-Hujah til Duwlab «n
■ lie 3d of May, 1764 : Cossim Ally and Suiil
ul Doulah retreated from, and Cunti
never reiurneil aj^in to, ibe jirotinceK.
indeed is just »ilhin Ihe prnvinces. Tlie
of Duaar waa fongbt Ibe i3d of October.

Major Auckmuli/ eiamioed.

Court. Dii ynu remember where Cottli
Ally was eni.'am|ied, three weeta or a fortni '
before the batlle uf Buxar ?— i tllluk at

Inffuin^cio Biixar, do you not j^ ibi

Had CKsi

odo.

Ily any fixed eamp afier I
uepariure iiiim Patna, till ibe entreudioient I
Bu.var? — I lielieve he had not auy caiupi I
was with Sujah ul Dow lab's army.

Ha<l they any camp at Doarg<otly ?— I ik
not know of any: I Ihink they would neilhi^
ol them leave ihe body of the army. JasHfi
ram \s intaml. Buxar i« on ihe river. I cMi. '
not say but he mi^fbt bare had a camp at Dm^
golly.

Mr. ELliPt. I can now ucertain the cblerfT
the receipt produced to Ihe Ciiurt by Heer la\
aail Ally. 1 cnii swear to the dale by the r^
cordaof tbekbalia.

Have you examined the reconli of ibe kh»^
aa f. -1 have ; lind Bod thai the I4lh of
buiiauee, in 1176, Het;ira, which lathe
of ihe receipt now proiluenl, auiwers lo Itf
2Slhof AiGurD, 1174, Bengal year; whwb i|^
exactly lOyesrs, 8 months, and S dBy«,frgfl>r
thistlme,(13ih June, 1775.) I mean calnihr'
months, which briu^ ihe date uf the receipllij
tlieSlbofOctohrr. 1764. [N. B. 15 dayaki
lure tlie haiile ofButar]

Pnim what place iathe receipt dale<]f—Ili
not daled from any plsoe : Durgully ia oM
lioaedin the paper.

Kititn Jua

Da,>

mined.

Court. Have you examine'l, and ilo J9
find these and the hooks produced Uhi nisbtl
be all Ihe liooks In whicb Cnasim Allj^ t»
counts with Biillakey Daa« are containMlT-
A. They are all, and I have eiaoiioed llw«{
f did not look ovei the hooka yesterday Mi
lully : oue book coulaina all Ihe accauni* bii
twe.;n Bollakey Ouss and Coisim Ally.

Dues thai huok contain the whole oftbe U-
counts Wlween Cussim Ally aud Bolltk^j
DuMi*— It does.

What are the periods when Ihe acootiDlsM
these houkii begin, and when ibey end 7 — T^^
hegiu iu Babuztnee, 1 175, and eud in ll
month ufSauhem Najtree, 1801.

It there any nieuiiao of lucb an aeeouali
Ihii mentioned in the receipt f — There ia i
such entry : it if certainly not in thebookit
cannot ascertain when Ihe banks cloie.

la Ihe dale uf the beginning of lb» Mm
Id ihe books rEgularly enlticd thercF'

at Catcutta^Jbr Forgery.

Cfiptkii

I

^Rere jno wilh llie army in lT(i4?--I wm.

riw *%'• Klreitin^r froni P«ln« ill llitit yen ?
— Their Brmy »8«ilereatwl Wore (he n-alliul
faiita : 3d May, 1764, lliey relresud lu Baua-
rat. anil cnnliiiUFd tlierr.

Haw Tar ia Rutarfpir from D'lorgolly 1 — 1
bvliete Uooritolly is a town on the lianki nl'
(be Saime : ibere in more Ibsn one place of
UiKl Dime,

(» iliere > riier calleil Doorgntly f — There
k : I i[i|>reheiid you cross It in ^ing from
JoWKTSm ID Buxar. Ii I'M* inlo tbe Soiun.

\law lar is Jacferam Iroiii Uolasgiir p — It is
MIeetned 1 i con.

Did you ever IraTtI itf — I ba»*.

Id how many houra f — I set out early in ILp
NMninir, and breakfuled there, I appreliMid,
about 10 o'oiock. I mde very hard : liiey are
bog cmarB, and through a hilly country : il
«as in IhecobI wcalher.

Can yno ii^li wliere tbe army of Kujah Dow-
lab and Ciigaiin Ally were, 14 days before tbe
twtlle of BuxBrP— I believe, ■acampcd at

Kiuen Juan Dou re-emmined.

What islbe last dale mentioned in Ibe books?
—The hit date irienliiiried in tbe buoka is lak«n
fnitn ■ leep, or promissory note : 1 entered n
long afler the lUte of the rectijit ; I entered it
atCalcuitt. It was after tbe iviiirD of Bulla-
key DoM from ibe army.

Were you with Buliukey Dou willi Ibe

Do you know the ritf r Doorifolly ?— 1 do.

Was Biitlohpy Dut^ in a leu t near that riier,
about tbe Uih of I tab ubb nee, 1178 N-Ue nas
wilh the army ; I knnw nul when.

Was Bollakey Dosx wilh the Uidy of Cnscim
Ally's army, a liitle befure the battle of Buxar ?
—He was.

Where was Ibe army 14 days before tbe
batllef~A muiitb befnre thut batlle they were
in canlonmeoK III Hv^

A..D. 1775.

r DmiigoUy run near Buxar T —
once neat the river Doorgutty ;
eiicaniped at Buxar.

Did tbe
The army
but not when th«y

Captain Carmuc exs mined.

Do you know BuXAr ?—] do.

How far is the riier Duorgolly from it? — I
<o not know.

Kiaen Juan Don re'eximined.

When tbe anny was near Doorgotty, do you
■^member a man coaling with ireatjures, en-
e«rled by SOO men on account of Coasim Ally?
*^l do Dot Temeinber any thing of il.

If Bucb a Iranuctiou bad happeneil, must it
bol appear ID Cnssiin Ally's account? — Such
■baitert were always minuted in the Persian
*>ffice: wlieo any treasure was brnugbt, it was
^Lepl in this book ; but no account al Ur^ wa«
^^ at Puna.

[1006

Wu the teep ynu rererred to in (he book,
pair] inCatcmla.or only entered there alter Ihs
iraDsaoliun .''' -Tlieenlry wasmadeby BnlUkey
Dusq : I can give no more [larliciilar aucounl.

Mr. Elliot . I iiiiderstsnd that tbeiebooka
end in I17C, Hei;ira.

Do ynu spprehendihat any part of Ibe army
wilh which Uollakry Dom might be, would be
detached lo ibe river Duor«oity, within a month
of the bHtlleuf Buxar?— I kuuw of nosucb de-
tach meni.

Doyoii remember when Ihebody of tbearmj
was there ? — Tbe army was frequpntly in mu-
tion. I can give no nccounl of ilie timt of Ih
being there. When the army waa io the field,
il WHS ex|>ected the rain would come on : ilie
army went lo the canloninenls »l Buxar.

Was the army at Buiar bdbre tbe rains ?— I
cannot speak to tbe motions of tbe army.

^Vere tbe raiua set in when the army went
lo Ilie canton ments at BuXar? — I cau't tell
whether il rained auy one day.

Was il, or was it not, before the raiiiB, that
tbe army cum e there ?--Teii or twelve days
after our arrival, I n^nember il rainf d.

Had the rainy season srt in ? — I don't mean
to say that tbe rainy season began 10 days be-
fore, or 10 duys afler our arrival.
Mr. Hurst examined,

Abnut what lime does ibe rainy season act in
at Buxurf— It generally sets in'the latter end
of June, or beginning of July.

Does il holil up lO or 1! days, during ibe

When does llie rainy season end there? —
The rainy season geuera% ends in Ihe montb
id September, or io the beginning of Oulober.
Kiaen Juan Dow re- examine'' ,

Were you al the liallle of Buxar ?— I was. |
have reason to remember ii. I was, after tha
battle, Sung inlo confinement.

Did the army, or any part uf it, after ils first
going iuto caulonnieulH, move towards Door-
gutty } — I Biu not ivell acquainted viith Ihe oir-
cumslances. 1 was confined before the battle.
All Cossim Ally's people were confined hy Su-
juh Dowlah.

Was Bollakey Dossalsocoofineil? — He was.

Mow long before the batlle waj Biillakey
Onss confined ? — I believe above a monib, per-
haps in weeks.

Did Bollakey Doss act as ■ shroH for Cossim
Ally dn ring bis confinement? — What kind of
question is that? Cosstin Ally himself waa in
con fin em en I. Where should he have money ta
send lo his shrofl ?

What kind of OODfloement was Cossim Ally
in P — in a lent near Sujah Dowlah: hixown
alteodant* were removed, and chokies* put

What confinement was Bollakey Don
nader? — I have taken an oalh, and 1 ivill tell
the truth. Tbe Nabob, 8tyah Dowlah, wanted
in gel money from Bollakey Duss. in con-

■ Guard* ot nalchmsa.

1007]

15 GEORGE III. Trial ofMaha Rajah Nundocamar^ [1008

fioingr him first, before the rest of Cobsim ADv's
servants The treasurer of Sujah Dowfah
(Collie Joqu) desired the Nabob to put Bollakey
Doss under his cbar^ ; and promised to ^t
money from him. Sujah Dowlah likewise
plundered all the goods and effects of Cossim
Ally : he even infringed the rit^htii of his ze-
nana. It was not till af\er the battle of Buxar,
Cossim Ally obtained his lil»erty : they did ool
think it ot consequence enough to confine me
at first with my master. 1 was confined 14 or 15
days after the confinement of Bollakey Doss.

How mauy days were you confined P—
Twenty-one days.

Did you ever, to the best of your recollection,
see 51eer Ilussud Alii before yesterday?— I
have often seen him lately going about iu Cal-
cutta ; hut never before.

Have you seen him with the array ?*— f have
seen many thousands whom 1 do not recollect :
I know nothing of him.

Did you see Cossim Ally's principal ser-
vants P— I did not know them. 1 sat in my
tent.

In case sny treasures had come to Cossim
Alley, or Bollakey Doss, during their confine-
ment, what would become of itP — When a maa
is in confinement, he who confines him will
take it : whatever Bollakey Doss had. Collie
Joqu took from him.

Did Collie Joqu give a receipt for the money
Ve plundered ? — 1 don't understand such con-
versation.

If any treasures had come to Bollakey
Doss, which Collie Joqu had taken, would
Bollakey Doss have given a receipt for it? —
Why should I suppose treasure would come
at that time, or why should he give a receipt
for it?

Can you take upon you to swear that no such
treasure arrived? — From the time that I was
in confinement, I can take upon me to swear
tiiat 110 treasure was hroug:lit.

Was Cossim Ally Cuwii, and Bollakey Doss
in the same army together ?— Bollakey Doss
was in the same army with him.

Mr. William$ examined.

Do you know the river Doorpjotty ? — I «!o
not know the names of the rivers in tliut coun-

try.
'l)o you know

at what time the army of

Sujah Dowluh entered their cuntoumeiits at
Buxar? — Tliey cannonaded Patna in May: I
can only answer for the nin:ions of our own
army. 'The battle of Buxar was the *2Jid of
October.

Kiisen Juan Doss re-e.vamiued.

Jury, For how lony a time hive >oij seen
Mevr*Kus«!ud Alii aliout Calcuiia i' — Ten or!
fifteen days from ihistime.

Ilow often have you seen him ? — About
twice.

Did you talk with him ? — No.

How came you to know him ? — I saw him
once OQ horseback. Ue said 1 kuow you, yon

were Bollakey Doss's servant; I moswered*
Very probably : there was a aervaat of nine
with me.

What is his name P— I do Bot know.

Had you ever seen bim before P— Once: n^
thing then passed between us.

How came you to know bit otDie?— I did
not know his name when I saw him in court.

Did you go to the bouse of Maba Rajah
Nundocomar ?— 1 never went near him. 1 like
to sit in my own bouse.

Was there more than one body of the amy
at Buxar P — The two armies were aeparale:
there might be a coss or a coss and a half be-
twixt. Cossim Alljf carried equal armv fnm
hence ; but at the time of tbe battle, 1 belicn
Cossim Ally bad not more than from 500 H
2,000 men belonging to him.

Was Cossim Ally close confined mr tbe dty
of the battle P— He was ; and at the end of km
confinement, he could not be said to have aiy
army at all ; several were gone, and he bsi
given dismission to others : he had disraind
Sumroo : Cossim Ally was not released till after
tbe battle.

Shaik Ear Mahomed examined.

Do you know Mahomed Commaul ?— T did.

Do you know more than one of that nanef

[The question was repeate<l several tinoy
but no answer could be produced.]

Mr. Elliot. It is impossible he can mistthB
me : be will give no answer.

At last the witness said, I did not know uj
other Mahomed Commaul.

Do you know Commaul O'Dien Ally CawB?
—I did.

Is the Mahomed Commaul you speak sC
and Commaul 0*Dien the same person ?— Tbey
were different.

Is the Mahomed Commaul you speak tf
alive or dcail? — Dead.

How ilo you know ? — I buried him.

When (lid he die ? — Five or six years ag[o: i
do not reinr mher exactly.

Where did he die ?---He died in the hoose«f
Mnha Raj^jh Nundocomar, in Caif'iUta.

Where did he usually reside while li%in^?—
In a Httle place separate from the hoiKf >
.'Maha Uijah : when he came from Muxiii*
vad, jiuha Uujuh put him ihero.

Do yon know wiiether it-.at IMnliometl^*
wiih«;SiO'l anv bond to Maha ItiiMh Nund^

• • •

corjnr ?--•! ^•a•A' him iviin»^«s it with mjf oSl
e\"»{: I shiv hiiii j'.ul hi^J s* al ;o it.
* Who ira\e tti»' i»ond to Maha it;ijah Nufld^

cougar?--- JJoIlaUey D(ks.

Di> \oii k.iow wi.o Were the other witnfsi*
---j\J;«'t:iol» K»y, a kitiree, antl Si el abut tH
vak*. 1-1 of BolUiki y Ooss : ilio«<» three.

Do you ncoilrrt far what som of m««e*y*
was ?---l refueuiber it was for 48,021 wccti*'
pees.

Crofs- Examination,

Whose servant were you ?- -J am not si**
vaot ; 1 used, a long time ago, to trade \bpI^

(a
If

U

at Calcvlttt,Jor Furgtry.

'f Hr*ant; I gobnck ami furwarils
k Rajah : niy (inide liu a hnuti- tt
' e Baie carried cm bitKini^ss

f HpMBof Itme: my uncle oieil tre-
I to Hahs Rajali'ii : whrii I wu
■I go witb bini : I buve now born
n yearn in Calculla, and always

' WMe you ID K(? the bond executed ?---
ri L'nmoiaul, J'>yrieb Cbowbee, Cboy-
.iHnil myM>ll wim illlioi; in ibe linow
iDlciSeal, lllihe BnrralxKiDali with
Bollakry Don likcwiK came
ia by (U : Maba Rijtb Nundu-
I i« ihatbuaie: hatinfjf aat ibiirn,
jail Niinilucnmar saiil lo Bollikey
ne Inr a long (iise had my rooDey ;
I rcinaiii no loncer h iib yuu ; now pay it
Iwa BDllakey pun inawerpd Nuixlocu-
Hy nwnay, wliich wm in the house nf
lusd andDtCca, has been iilundered ; I
■owlbe puwM'<it*pByiDgthe money ;
lUBi of money ia due Id mo Itoiu (he
rCnmpany : h»*ing received ibal mo-
pill pay you tint, and after lliat will
''— ; I wiJI now gite you > bond Ibr tlint
■o yiMi take it Irom me. He then
Hana Rajili very much, wilh bra
*" ' W take the Iwnd. Malta Itajali
Mid, Very well, ivril* a bond;
ite me Mahomed CummanI wilh
1*1 hating %<me lo my own Imiiae, will
its bond, aeal il, and get proper wit-
id tend it back by Mahomed Com-
I Rajah Nundacomar said, Very
MUkey Don, Itkin^ Mahomeil Cum-
Il fainl, obtained uiiniiasion : Maha
■ gut up, and we thi«e likewise look
i; when we went iolo ao outer house,
■■key Ud^i taiil lo me, Do ynii like-
~K aMiig with me ; and I hating gotten
ritten QUI and Kuled, yon will see it
W having aaid Ibis, I agreed ; he llaviog
" ■ *l palmxiuin went away, w« thiir
veil him, be having gone nilli liii
^ half a gurry alter we foltowad hint.
n*o arrived at his home. We «uw
■|>ata ailiia;;, and along » ith him Ua-
SilhUial Lallo Uomin Min^, and a
it down. Dollakay Dua« laii)
ite out D bond for 48,081 tioca
Btiie of Maha Ilajth N.indo-
e out a bond in l'i>r^ian, anil
r baruig read it, Ballakny Don
l^and look il inio bia lianrte, aud having
■ \ut bBn4a, be took olT a ring, wbli:h
liAager, aud when be had taken il off,
\\t in a tioca dewal (ink Mood) which
I bafor* him, nod atBied the wal in
which wai lying before bim, and
I, he tiid :> HahotncdCam-
ftyoil likewtae be a wilneaa lo it, and
%OBd iBle bi* band*. Ha hating liko-
B hw aval off bis floger, afBxed it to
• aa a witum. Itnllakey Uoia then
hibab tUy, Uahoo Maiheb Itoy, Do
u it t Matheb Uoy likewue.

A, D. 1775.

no«

havJDB: taken hia aral from his finger, affixed
il, anJ wiB a wilncM. He then suiil lo Seila-
but. Ilia vakeel, Do you likewise be a witness lu
Ibis bond ; who having lakcn llie ink-itand in
Ills hand, wrote his iiaiue in PeraioD, aa a x
ness ; BolUkey Dust ihen took ihe bond in
band : llien BnllaLe)' D'isa pot the bond J
the bauds of AUIiomed Commaol, and tsij
ifcillabut, Do you lik-'iriu' accompany illatia-
med Commaul, and deliver this honil lo Maha
Kajah MunJucomar. Maliomed Cora maul and
Seillabut having taken the bond, went lu Ihe
bouse of Mnha Rxjali Nuodncomar : I likewise
went 10 my awn bouse. Of ihe bond heiu^
sealed and exeeulnl, 1 know ibia.

Maha Rtiiali
II.!— He bad
peon* and kidmiitgara; 1 oould
ibeiD : one kiilmuigar weot u)> for lib shi

How roaay ?— 1 cannot ti "'

Were any on boiaebackf

Weretbere fiveofaitr— 1 caimot tell tlrdr'
number.

What did Maha Rnjah Nundocomnr nay,
when firBl he came lo liit house?- "
what 1 have given in evidence.

What did be flrsi say !*— Il ha* already

I Queition repeated,] I have related eft
tbinff, from Ihe lime he came, to Ihe end,

[aueelion avaiu rejiealed.] If I lieirja
llie beginning, I cau Icll, I cannot begi
midille.

Court. Let bim begin again.

A. Jovdeh Chowlieei (JlinylOu Navl, Ma-
homed Oummaul, aud myMlf were sitting in
the house of LuckycaunI Heal, iviih Maba
Rajah, Seat BolUbey Uoas likewiie cam*. h«
likewise ani down liy Maba Kajah: Maha
Rajah said to Bollakey Doa«, There has been
money of mine a long iime wilh you ; it ihnll
not remain longer ; you now pay il me : Itnl-
lakey Boss auawereif. My bouse at Muxadavail
and Decca have been plundered ; I have nut
now Ihe i>ower of paying il, ihere is a great
sum of money due lo me by ihe English com-
pany ; when I have received thai money. I
will liay you first, and will after pay nihera :
I will uuw write oul a bond for you, do you
lake it ; and he pressed him very much M
lake it. Maha Itiijah eonsenled r Bullakey
Doaalhenaaid to Maba Rajah, Give nie Altt
homed Commaul along with me, and bavii
gone lo my own bouie, and having w
out a hood, ami having got it sealed anil
perly wilneased, I will send il lo you by
homed Commaul. Having slid Ibis, hi
tained dismission.

[QatttUm In Mr. Elliot. Does be rei>ral
the same words?

A. The (laragraiih is repealed

Wtlnen. Moha Rnjnh likewise got up ;
we likewiae loo taok leave. Having gone
an onl-house, Bullakey UoHsaaid liime, Dnyou
hkewiav roinenlong wlihmelomy buuir^ he
having got I Dlo bis palaoiiuin, he went brtiire

le bad ^^

i

r IH^ and tlxi
.ifaabuKlolMi
Lhi yon likewise
il Cnmmiiul,
I jtf tiM seal from
_ __ M,* Jcoal ; aud affixal
, _^ Ttew Ballalff Dosa luiid
^h Hi* *w Itiewise a witiit
.Jk 'wi>4i^ aflixeil liis iral
:l>r ttJuiwisc then lalil U hi*
>u i-HilikcwiMrbea t
, MWu ibe iDb-itand
.,•« 4 tSiriiaa ; ami
.«. IiinJUkit then pul the
,..> ui~ Bvltakeji Don. Bol-
Ji' koiiil into the hanria ol
...>it; anil taiil 10 S«illabut,
. it\kk Mahomei] Coromaul,
^ d Mall* Uajab Nuniloco-
<i<, MkbuiutNl Cummaul bav-
; and I likewise

Tbu is

*liat 1 koow

Willi; executnl. He iited
>d htrwanla to the Maha
, 1 likewise went haek-

TKaatuTMaha Rajah Nuodo-
' ■ L>tf« Kvrvaul of nlaha Rajah
II >Jtir«n the servant or Maha
. ^ w«al baukward* and fur-
: r i*h** . lie remained soiue-
tf four iiiuDibs alUrwanls
Muxadabad.
i<iu« back? — About Tauror

L ',..1 liitn not repeat so otlea ;

.till hf may he sure.]
>l<i\*ilabiiil lour or li>e years.*
> vuinr lire yvars slier siffn-
M<l tbto i saw biin at Uaha

MttM^ofHahanijah'sN-Iknon
I vtmrn kaokwards and I'orwatds ;

liwt« )rhai*ater*ant.
t k»h*»t- When he returned from
Maha Hijalt Nundocomar {are

MM kit nwD boiue lo lire ijj.

I ^'Mn/ia Rajah Nandoeomtr,

Vita be long ill bernre bis aleath 7.-<Be
• 'II fur three or lour months: arm that
'•j^sick; and tlieu hedied.

VVhal was the siliiatinn of the place
gi'cti him ?--ll wut within the Ibui
oI'MuIm Hajah's house, and belonged

What sort ors place was it f~ll ia
Calcuila. I can shew ii il you will go.

In ibe mean lime, doyixi dewrilie it.
raised upon a lerraw, [ubimd.] There
Chiibbuckin under il ; there were three t
in^rs: one to ihesoiiihward ; ooe l» iIm i
ward, which Maha Kajah NuniIo<y)niar an
to be filled up wiib luals; and left the (
opeoioK Tor the door.

Was the third ajwaiog to the oonh, or b
ea>t?-..To the east.

How large was Ibe plicef- — I muboI
how many cubits it is. That plkce j«

Who tires in tbal place now P--Maba Ri^
Nuodocomar's peona, kidmatgaro, dec. (
ia not np|ioinleri for Ibe use uf any uattiei
persons, as in Blabonaed Commaul's time.

Are the kidmulgars, #ic. of ih« KlabaB
jah's, ftlussnlmeii or Uiodooaf — Thay I
liotboneuiid iha other. •

Do any of Ihein sleep thereF — Bow«h
tell whether Ihey sleep there ? I see Ummi
in the day time.

How came you then to know, thai II
homed Cooimaiit slept there, and the arlL
gifeti abont iiF---l aaw Maha Ki^uh arilkH
own eyes, order (he home lobe filteit oat
him ; aud he lited there.

Did you use to yu backwards and fbrwM
at that time and place ? — As I went lo Hi
Rajah's durbar, I nsed tu (lass by tbe fill
aud made uy salsm lo him.

Did you see hliii whiru he was aick i — | i
I saw Ibat physic from Maha Rajah tmi

What year did he die?--- 1 do not koewl
month or year ; it was in the raioy uttaam.
Who was at his butjalf — I carried bHB<
lo he buried : other people hkewise wcMmi
Who else WM iberef — Mauypeopk.SI
Mahomed, Chawn abb Chubdar, KuxA H
Cawu Jemut, Jummiatt Cawn, ilui tiM
CaWD blabomed, andliieor ais coolies {]
body else.

kVere tbese all who were there? — .
the caoliea, there was no one eUe. ]
with certainty.

*^M you ever attend the burial of anv bi
-~ltis a-custom amuim us MuasiifcMi
It with the bodies of any ofourfnefidti
ons, when they die. .'Siucc 1 came M
rtnalurily, 1 belieft: I have attended lOOl
300 of ibem.
Criuri. TelllheinmeaolMroe.— A I «m
It nitb )4hau Mahomed, Cawn abb ChtlUM
iillah Cawn. Need I atenlioa aoy tnoref '
Who were tbe other |)erBuns that aitendtdf
Mussulmen ol'ihe Maha Rajah's I'auiily.
Uon came you to rtmember thetr oama n

J

Ml

at Cakiifta, fur Forgfrif.

A. D. 1775.

matOiy f~Th« mominit ifler ihe ni^liI uf liia
*le*lli, Miiliii Kiijili wu infbrmnl aS H; iht
burifll M» iiind^, anil I r*riueinl«r ibne (leuple.

[Tlie oitrwu hiving twen prnsetl uilli this
•lOFtliDO ovrr and met BKain, Illr. Etliot Mill, I
CAimol get him to giv* miy renson.]

Did ynu BFe any of yaiir anqiiainMnce llial
Binriiinij; ?~Ni< : il raiiml Tery hartl.

Uuw long hiTe yoit lieen aLtjiiaiulcil witti
Choyloa Nam F — Ten or eleven _> ean.

How tUB)[ liave yoa twen ■eqnDinlnl wiih
Juyileb Cliowbeef — At long aa I knaw Cbuy-
lon Nkut.

Were you first ftrquainled wifli them bnlh in
(lie nme plii*? — I »ns: they used to come
backnanis and Jurwird; Id Maiia IlKJiih'B.

Dill ynu «ee Jovdeb Chniifbeelhe day of Ihe
fuDcnl f — They both iited to came to Malia
B^ali'a Ourliar : I do out recolleci, with re-
aped to thai ilay io partinilHr.

Hoi* long hare you beenatteodiuEBtlhe Ma-
iM Rajah's ?— I hare before »id, I came la
CttcutlB twelve or ihjrleen yean ai;o.

Did Jnydeb Cliowbee and Ctioyiim Naiil
Mine to Muhk Ruth's toother ? — I ihdnoi say
itini: I taid, when 1 came tu Malia Rajiih I

\Vliat cnnverinliin paued ot (lie hniise uf
iti'llakcy DosuSealf — I have LepI no accouul
ot il, lie spoke what 1 lald to the Itlahunr.

Hail thai Miihurir any papers or accuunts
with hiinN~Nn : he wm silling wiilioiit aoy.

Do you understaoJ Persian ?—l do iiniler-
:t3n<lillilile, but do uoi write il well.

Werv you asked to wiliietin ihe lioud ?'--He
.< Mreil nubudy, bill who are already itniiu-d.

\\ heu tlie writer read the bond to Hullukiy
. XluM. what did be, Bollakpy Uwi, my i — No'
"'ill tXceM well, orsoineauch word.

-He did.

I yoa know BolUkey Urns Seal ? Was
well acquainted with him f — I knew bim
well.

I Bollakey Doss give that vcder in Per-
'J», in Moors.

B«peitlhal order, [tletepeali the
Bpewuin.l

r. EUiM. 1 eismioe l.im In Moon, lie
I rvpeau the words of ihe sum in I'er-
rliicb isooDlrary to the usual manner of
ing I li>r those wITu siieak in Persjao,
k iMy c«ttie to sums, almovt alwaya inen-
' lb Moori. He now repeats it in

w^ou always tii mctilion that sum

1, which Bullsk«^ Dnia itave orders I'ur

"—I apoke it lor ynur inromation.

K himsclt to Mr. Elliot.]

. r. KiUol. If you did that Ibr my infurma-

nkjoM every g*n of your etideiicv in

Pcrsiai

*( T am to interpret ihe nbole hi A*
■A. 1 happened to say it: 1 did not
r your information]
eame von Io do to three limes otsr ? —
r Infnrmition. [To Mr. Ellioi.]
. Was it, or was il not, liir thr infor-
maiiiin of the interpreter i' — A. There was no
particular reason.

flow came you In lie so particular in yaur
account of the sum ? — I rememl>er il from the
long dispute there has been flLiout the bond.

When did you first bear ot ihe di'pme about
111* bond ? — I do not mean in particular the
hood. Ibnowil; because Mnliun i'ersaiid and
Gungabiasen proceeded sgainsi Ma ha Rajah,
in the court of Cutchrrry, in the time of Mr.
Palk, and also in Hlr. Rous'a Cutcherry.

For what sum was that complaial? — They
com plained for 119|000 rupees, on account of a
depMiL

Why do you give thai as a reason for know-
ing the Imdo was for 48,031 lupeesi' — I never
gave that reavnu for rememliermg il. I kuow
It from the nioiilh of BuUakey Doss Sent.
[Question repeated,] — A. I neversaidso.
IMt. Elliot aod Mr, Jackaou both depose,
that he did give that reaiion. Mr. Weston,
(a gentleman uf the jury,) also taya that ha

f Question again repeated,]— yl. I neveraaid
Ihat Mnhun I'eraand and tiungabiasen sued
Maba Ritjsh Nuuducomar fur 411,021 rupees, iu
ibe Cutcherry.

How long ago was this suit in Ibe Cnt-
cherry J — About three yenrx ngo.

io which did it commence P Whosecourtr
— Mr. PalkV

Do you know any dispute io the msyor'a
court, about ibis matter ?'- 1 do nol kuowofaDT.

Did you give eTidcnce in that cause J — In
the time of Mr. Rous I did gife evidence.

Inyiiuretidence, did you rovntioo the aum
nf 4I<,021 ruiiees? — No meution waamade of il.

if ave you ever, from the liuie of executing
tlie bond to this time, roeniioaed the sum of
that bond to any body f — Nobody ever men-
tioned lliat sum 10 me, nor did I mention 11.

What, never since Mahn K»jah liaa b«en
confined f Nol to any body ?— I do UM r».
inemlier telling la any boily.

Dill you never tell ihe sum to Mr. Jarrrl. nor
any body concfrned for Maha Rajah 7 — Wheu
Mr. Jarrel asked me about this buniuessi, I told
I gave accouul of It, and Mr. Jarret

lU it to this genlleii

uF

il dnwi

Never. I never did? [Mr. Farrert
what he aaid.] When Maha iiajah was put
into conlinemeni, he deaired me ti> go lo Mr.
Jirret, and give him what inl'nrwaiiun 1 cngld.
Nobody else asked me about ii.

Did you tell Maha Rajah himseltV— 1 did

How came vnu lo meulioii «<i exarttly tlia
iumf~l lieartlit fromlbamoutliofiieat Uol-
lahey Dosi.

WIBJ

Did Bolhkey Dom Seat mention it in Per-
rim?— N'l: \a HindofUo.

Hare you never lioce heard it from may
Other i>er8oa ?--WbeD MktiR Rniah «m first
llirotrn into cnnfinemenl, he lolJ me, it wu
on account of a fnrged trand, irhich I had l»een
preteot at the execiitiun nf. I hare not heard
orjtfroiuChe time I beard it of Bollaicey Don
till now. I told him thai the complaint wai
an unjuil one, u I wm pKienl at tne execn-
tion of the bond ; and that the gentlemen of
the Audawlel would do him jufltice.

Were you at the eseeunoti of any other
boDdf---Nii.- I hail not much bmiaeu with
Bollakry Uoss Seat. I oc*er nai at the exe-
cution ot'any other.

Or of any other peraoa'a bond ? — Yea ;
nany.

Do you mean to Haha Rajah Nnndocomarf
-••No: I bare aeen bonda ol bis ; bntnotfecD

persons.

Court. Name ibe name of any person you
kit saw execute a bond ? — A. I bare saeo
peraona si^ and aeal bonds ; bnt do not recol-
lect whom or wbcD.

Hare you, aioce this bond naa executed f
Bay to wliom; and who were wiineases?---
Ym; I certainly have; but bow liiould 1
know who the witnesses were, or whom in
ftfonr off

jou cannot remember any thini; conecming
the others you have been present atf---In my

15 GEORGE III. Trial ^Moha Rajah Ntauhemiuir, IVHR

fore his fiee : on my annrering, Tea, he (wt
tbe answer aboTC reneatM*).]

Court. Hare you seen any olber boods
executed since this of Bnllalcey Doaaf tisv
vou uaderstand the qoNliaB : anawer 'n^—A.
I do not recollect to fiaTe been prcMnI at lbs
executing of any bond. 1 know tiw cusiov of
executiog bonila.

[Question repeated.]--! thooght yon aiU
what tbe custom of tha country wM, u is
eieculiog bonds from my own knowledge, lal
baring seen them.

Do you know the custom T What is itf— t
know the custnni of eseculins bonds : one p*
a seal here, another there. 1 have been f»
sent.

Unw should you know the cnitom of it
country, if yon have never aeen bonds as-

Mr. Elliot. He will not give «d aaawcr.

[Question again reputed.]- — ! batebecail
trade for many yean, and have seen anj
bunds ngned and executed to myadf.

When was tbe laitf"-I am speaking af IS
or 30 years ago ; or when ! waa IS or |D

Have you nerer seen any bonds exeesld,
but the bond in question, and thoae to yonnril?
---[ do not reoiembcT ; ! cannot remembcii I
cannot pretend to say.

You say that you'baTe seen bonds execolsl;
bnt do not Temember to whom, and to ahMi
bvouT. How came you not to remember ikM
IB yourself?

FNo precise answer could be obtained.

^ ■ " - iduodr

H« dossM
appear the least inlimidaied.

Jury. He certainly is not intimidated, ft
understands the question.

Mr. F.lhot. tie saiil that he bad seenboa*
executed since lliis ; but could nut remenbt
the persons uhn were present at the eseculiW'
t asked liim if he knew any of the prrsoD>*t>
Here preteut at the execuliun. he hariiy nil
that he had seen many since.]

How came you to ren>1leci the preMC Mi
(if Jtnlbkt-y Dusa'a bnnd?— In my pimfM
Hoilakey Dosm ordered the Mohurlr to ostt
uut a blind f<ir lliat amount.

How came you to remember tha exact MS
of a bond executed so Inn); ago ? — Whai it s
my lemerobranre, 1 remember. What I ba*
fori^ot, I have forgot.

Why do not you Ihen remember Ibesuissii
olhei-s ^-Thi•l one 1 remember. Why da wt
you ask me why I Imte iiol forgot it f

Why tiBve you out l'urg..t it f— If 1 f«t«ll
tiling, 1 muitbeconleui wiih it. This I »

mxed their seals to them
■ioce that of Bollakey Doss's.

Nunie the nimes of those witnesses. — ! did
not mean I saw bonds executed : I spoke of
the custom of the country. 1 ihouglit you
asked me as to the custom nf the country,
from my having seen bonds executed.

Have yiiu, or have you not, been prcient at
the execuiiuii of any Mud, since that of Bolla-
key DoNi'ji ? If you do nut give a plain anawer
to a plain quFstioo, you wilf be committed.- —
You are my masters ; yoii may puoisfa me as
you please.

[Mr. Elliot being called upon, declares : his
words were, " in my presence, bonds have
been frequently signed, and wilne^ts have
affiled tlieir stwls to them, since the bond
which we have been xpeakiug uf." He now
aayH, that he ansivpred without uuderslandint;
what was said lo him ; and that he Ihonglit I
asked him as lo the custom uf the country ;
but ibis pretence ciinnot be true, because he
first gnve me a reUtioo of ibe custom with re-
spect in sealing bunds, I itnpped him, and
told liim, 1 did not ask bim lo the cuatom ; but
whether betiire his face any bond bad been
sealed and signed r Be aahed ma, whetber I
■neaot to know, if lie bad leea uj vM ket

mei II lier perfectly well: what aaa
give to. Why 1 haienotlorgetr

What reason have yeu for rriadulaitaf **'
— I remember it, befiise 1 naMAW ■!
What I have Ibrgol, I Ibrgtt.

Hate yon, erb^ jmmH, UjrnHM*

Eal Catcutla./or Forgery.
bniog It? — I remMnber: tlierefor^ I
liA*e laid you I hafp bo reawn.

Do you rMnllecl tny smn nf monej you
tfttt saw a bond Kiwa ior, since that lime ?-'- 1
remcinber uue Mr. Murrinm lakiog 15,000
rU|WM rrom Malia Itajali NiiDdocomor, anil
giving hia bond for it-
Were yon a »itae«a to il ?— No.
When wBi ill' — I only f«Ri«uibfr the aumi
I do not re>i>etnb«r ilie dalf.
Was il since tbii bond >~Yea.
Hair long tgo waa it ?-~Hamelliiog above

Were yuu present at Ihe
Miirn*un'» bond? — I uw 1
Rajah acDl ni« for it.

Who were llie trli
1 do D

I Engliih ? — Yea, il wai early
Enorning; nubody was there: he giii
it'wai, and ligneH il: be laid uie he •
^ oiii a boDd to Maba Itajnb. and m
u Uke il.
vhai langnage did yon lellilbim?-

• till
I 8al>eb (te

. Mr. Mor

onP— He •
ink) ni Mui

e was the bond irivea?~-Al CbIcdiIb.
Higbt th« nnme nf ihe nenon you
Horriunn be Madiluon? — 1 kaow doI:
|[^call«l liioi Mnrriimn.

»nrt nf a man was he ? — A liltle short

From tbc KimilaHiy of the (oandc.

iMcripiiuii ui' the perBau, il is eviiteni

■«• niuat mean Mr. Maddisuo.

_ >a i-TeT tee any other bond expcuted }

ner did see any other bond exrcuie-l :

inembniiice: what ahall I tell

you know B'dlikcy Dosi ray well?—

I Itollakey Dnss wear ear-riogs in hie
■»■ nw DO ear-rings in hicean: whe-
Fiie TDne them or nul I cannot Irit ; but I
Tnol >ee them.

T)<> yon buuw big Real P — I hale aeen three

lour letien of Bollakey Don, thai came

' I Xiha RajabNundocofiMr'*, wiihaeali; and

. c^omj-ariag ibem with Ihe bond, I aball be

1^ to tell.

{luwcame yon to
:;41nkvy l>OMRroit
.N i.ri>liicnraar Trnm Ubinaura, I was there, aui]
aaw tbe Kal. nud one^mnre leal of a letter of
BolUkry Uon, which' Maba Rnjab lont to
Mr, Jarr^.

' yait to >ee that letter thai wax

o Mr. Jarrrl?— Joyiirb Uhnwbeu carried

t Kljili's to Mr. Jarrel: I waa

^1 Mr. Jaml'a hnuao, «nd law it in ibe

» oT J<»yd»b ChD»h«t. I MW il in hjf

"^ Mil nakej, what lH(«r wu that ? lie

«IUbey Unn't. I looked at the leal,

- =■ — « BoUakoy DoM'i.

A. D. 1775.
How came you to r

[
aeair^*:!

biillakey Dots wrote
from Chinaura : I remembei' llial, and (Ming
thai in Joydeb ClKiwbee'i hand, I iiw ihey
were both alike. I saw him put iitoibatboDd:
I bare secD him put it la sereral ulher paper*,
at ■ dialanoe.

Whal do you mean by a riislance, and what
dinaace? — It was at ihe distance of fireoraix
cubits, (or hauls).

What paper have yon seen D<illakey Dou
put bii seal to, besides that bund f — 1 haia
■een it only upon theie two letlers and that

What are Ibe papers which you hare setfa
him put bis seal la at Ihe distance DfliieoraiK
cubits? — I baveaeen his seal nnly three tinica :
once to Ihe bond ; I was then at the diatanire
of file or sixcubiu(or hauls): the second lime
I saw it, was thiil on the letter wrote from
Chiiisnrahi the olber was that 1 saw at Mr.
Jarrel's, that Joydeh Chowbee carried.

Iliiw many uiher luipers have you, with
your own ry>«. aern hitu pul his leal to?-~-l
neter saw UulUkey Doss, with roj own eyei.
put his si-al to anv uiher papt-r thun tbe bwid :
ihe a[>p«aranceof Ibe seni and thai of the two
letters agree.

examine Ihe seal ?-
gate il into ibr hands u

Miih

:l..llakey Unsa

led C"U

laul;

Hahamcd Com-

'hen he gave il into ihe hands i>l Malhrit Riiy,
and luld him lo wiinest it. I hkrwitesaw it
when tie gave il into Nedlabui's hands, I like-
wiae Mw il when I did not take ihe bond into
my hanila.

V\ hat distance were you from il when il vraa

fut into Ihe bands of Slahomed CtimmuulF—
I may heal Ihe distance of three or four bauda

What distance werf voo when il was pal
iniuthe hands of Mallie'b Rny ?- *
Iher nearer to hiiu than to Hah

At what distance was vou when it was put
into the bands nf Seillabut'— 1 was near SeU-
labui -. I cannot be exact as In the distance.

Whieli were you nearer to, Malheb Boy «
Beillahut.^ — Malheb Kuy was near.

Court. Tell iis the pmiliun in which they
were?-^, Mallieh It-iy. Ueitlahul, Doman
Sing, were all with Iheir facoa to ibe south-
ward ; Sriliahut in the middle, Malheb Uov «n
Ihe right, Dotnan Sing on iba left: wo feur,
Mahomed Cuoimaul, Juydeb ChowWe, Cbvw-
(on Naut, and I, had our fscu lo ibc HtUi :
Bullskey Doss with his face to the wcat, tmA
back to the east.

Who was on the right hand vf IMMwv
Doss?— Doniaci Mnf was on the right hsaJ,
and Mnhomed Cummanl ea dw Mt.

What was

At what time of tbe day wm it, wbca iht
first conversation paaaed mt tbe Maha Rajah'af
—About nooo.

Was the bond read so low that Toa could bsI
hear it P— I ooald not hear it well.

Did not yoQ hear one word f-*-ir 1 did aot
hear, how can I say I did hear P

Did you hear nothing of the eootciits ?•— I
beard nothing of the contenta.

What, not a word P— What elae shall I say,
1 did not hear a word.

Were you deaf, or had vou any disease ia
your ear r— I was neither deaf, nor had I aay
disease in my ears.

How then came yon not to hear a word ?—
I did not pay so stnct attention, nor did faeical
it in so high a voice, that I should hear it.

Did any body else hear it bat Bollakey Dssif
— -I cannot tell.

Did you know the Mohurir?— 1 saw hii
fiice then : he was no friend of mine.

How came you to go to Bollakey Dssi^
bouse then ?— I went that time, and now sai
then went at other times.

Did you ever see the Mohurir before or sinstf
—Neither before nor since have I seen bin: f
ouly saw him that time.

1019] 15 GEORCjE UL Trial o/Maha Rajah Nundocamar, [100

reason to remember that : I am positive to the
situstion of tbe persons : they certainly sat in
that position.

Jury. If you were to see the bond at the
distsnce of three or four cubits, would you
know it P — I should not possibly know it, for
this reason : 1 was not a witness to the bond :
if I was to put my own seal, or write my own
name, and if I had read the bond, on seeing it
again I should know it.

Do yon mean to say, that if this bond was
pot into your hands, you should immediately
know it to be that bond ? — By the appearance
of the seal, and the signsture of the witnesses,
I should be able to guess ; but would not posi-
tively say, that was the bond.

Did you ever put your nsme as a witness to
a bondP— Ivery well remember I never put
my nshne or seal, as a witness, to any bond
vnoe the time of the above : whether 1 did be-
fore or not, 1 cannot tell.

Court. Take a pen, and write tlie name of
the Company.

[He writes a very bad hsnd, not like thst of
the bond.]

You say you know Mahomed Comroaurs
aeal : would youlcnow it again, if you was to
see it ? — I have not sworn that I should know
Mahomed Gommaul's seal.

Do you remember any other circumstances
of the bond sndthesum? — I do not: what
Bollakey Doss said, I remember.

Was It a simple bond for the payment of
money ? — What I heard from Bollakey Doss
1 know : 1 know nothing else that the bond
was about : it might be as well one thing as
another.

Do you know any particular circumstance
being mentioned in the bond, when you heard
it reaid ? — 1 did not say that I heard it read :
his writer went close to him, and read it gently
to him : I was at a distance, and did not
hear it.

Did Seillabut read it ? — He might have read
it to himself: I did not hear him : he did not
read it aloud.

Did any body write any thing ivith a pen
on the bond, except Seillabut ? — I saw with
my own eyes Bollakey Doss, Mahomed Com-
maul, and Matheb lioy, put their seals ; and
Seillabut wrote bis name.

Did any other person make use of a pen ?
^No.

Are you sure? — I heard it with my ears,
and saw it with my eyes.

Are you very sure f — Very sure. 1 am cer-
tain.

AfUr Seillabut signed it, what was done with
it immediately P— ^llabut gave it to Bollakey
Doss: Bollakey Doss gave it to Mahomed
Commaul, &c. as before.

You say, the writer read the bond low:
was it so low that you could not hear what was
said?— When the Mohurir had wrote the bond,
and carried it to Bollakey Doss, he gave to
Bollakey Doss, to hear it in tbe customary
.way.

June 14M, 1775.
Kisten Juan Don examined.

Do yon know Bollakey Doss?— I was his
chief gomasUh : I used to superintend hii
other gfomastahs, and sometimes write mysdf.

Do you know of all the accounts that hare
ever passed between Bollakey Doss and BIsba
Raja Nundocomar ?— 1 know all the aecoaHi
that were entered in the books at Calcutta. 1
likewise am acquainted with the accounts of
Pudmohun Duss.

Do you know of any accounts respecting
jewels*?— -I do not know any thing of jeweh
between Bollakey Doss and Maha Rajah Nua-
docomar.

Did you see, in the hands of Bollakey Don,
any papers concerning his accounts with Mabs
Rnjah Nundocomar?-— When I drew up the
accounts of the Roze Nama, there was st that
time no account of any jewels of the Malis
Rajah's. I asked Pudmohun Doss, Where
is the account of the jewels for which we are
now paying a bond? make my mind easy.
Pudmohun Doss then said to me. When Mabs
Rajah Nundocomar gave the jewels to Bollakey
Doss, you was not his servant.

Court. This is no evidence.

Did Pudmohun Dom then shew you soy
papers ?— -He did shew roe a canatama, wrote
by Pudmohun Doss, and signed by BoUakcy
Doss.

Are you sure Bollakey Doss's hand wsi
aigned to it ?-— I saw with my own eyes, that
the hand-writing of Bollakey boss waa to it.

Was his name signed to it ?— These are tba
words written in the hand- writing of fioUafc^
Do8i: <' It is written by BoUakigr 9m*

HPl] 1' CafeuHa,/or Forgery.

-wfilwn aboye by Pudmohun Dmh, the apace
of (ix nmothB."

Hate VDU e*er iccn tbal paper to any tiody's
limnil*.'---AIW liavin^ uritleD I'rnm tliit ^nper
myself, 1 have not leen it iu Ihe hanila q1 any
body.

lluiv long ago is rt since you saw ilf — About
four } rara ; I apeak from giie<«.

HoM Ions lias PuJmaliun Dim been Jeai] }
--•Three yearaanil aeven mootha.

ArelliEre any enirips inaJeol' iliia Irariaac-
tiou in Ihe \nmk» of Bullakey Doaa, taken l>um
JheCDOleiilaot' llist paperP'-'Yea; Ibere wua

^■Etbe Corn Nama is ibere aDV meotinn of a
hoMi, or only of Jewell? — I «ill inform you
of wbal I knavr. If ia firat wrilteo, that a aum
of i»on«y, Ibe amount of wliicli I do not re-
CoUecl, was 1o be paid to tbe Governor and Mr.

KKiti ; 3,500 rupees uii account of leepa ;
ion of a bond on account of jewels la
I, in which it is specified tbat do interest
hop.i,!.
urt. Repent what you before said about
(Merest?— -To which I can pny noiDtere8l,and
tbervfore pay it without (lewawy.)

Mr. Jackiun, Tbe meaning- of ■ sewawy' is,
'*'"' It thai time he could Dot pay inletesl : be

A. D. 1775.

[loss

X

^ta pay lour ai

■f oft ht Jury. By ';
I he could paynoini
la pay an addilioual quarter rupee.
reman, t underatand the word 'aenawy'
Mi to be, " I can (lay no interest now, but
aty a fourth more, •« a premium for lend-
M maney, at it wouhl be a long space of
^froin lti<j date of Ibe bond belbre it would

iliol «ays, Tbat when a bonil is ti\ycn,

rxpecled la he so lung a lime befnre il

B lo double ihe sum, it i* sellled

_ / to pay a ijuaiter more as a pre-

t, iiialead of iiiterral.

Hyou, f'ron) the date of ihat paper, make

— y in ihe buoka ?— Yes.

Mkf pToihicetJ, and ibe following entry

L^ " tn the privilc account of Bollakey

]^lheauu) of 139.630 : 7 is the jammab

f the account of Maha Itojah Nundo-

' Ore : tbe iiirlicnUra of wliicli are on

mIII aide of Ibc accaimt given on inspect-

pdoUataize: the receipt ii takcu, and it is

n on Ihe credit, ' Maha K^ab Nuado-

^a accouut with you.' "
■• the entry made aller the dealb of Dol-
r Don?— It was.

D be entered in the accoonis
*tib yuu?" [Meaning Bollakey Doaa oDer
<lralh.] I bad aeen Ibul Corranauia; and
^ 1 Doai hating toll) me Ihe nccoiinu
nnner, I made it after hia

the dale of Ibe entry f— There is
Kt tlM partieular eDiry.

were sBtlled ii
^^ptaKttlMI

What ia die ilate of tbe tranaaction before or
afler it.'---Tbe Ibittieih of Choil, isar. iaihc
dale of the one before tbe account : tbe last
entry is taken from the date uf a note nt' haiul :
there is no date after : it is not Ibe dale of tb«
transaclion -, it is only tbe date of the note.
WhM is ibe dale oeiLt preceding the notef
" " d is Ihe dal«

after tbe note?>—

nlered afier tbe deatli
una jou to say " willi
fBolUkeyDoss;

Tbat which I
next preceding.
Were Ibete any

Ab ihe account was
of Itollukey Doas, how
youf"---Tbeyarelhel
It is cuslomary

tVhal! after their death r— Yes.

Is there any other account enl<rr«d in the
book after the death of Itotlakey Doss, whera
il is said "no account with youf" [Tbe
books were inspected, and it appeared there
wu.]

These are ihe parllculara on ihe credit side.

" Thejamaiubof Habah Iteiah, 6B,630:7,
the bond of whicli Bullakey Dosa wrote Iha
partKulars, 18,0'Jl rupees, a bond bearing data
7lh August, ];G5, in Engliab words, but Nagrea
chsraclers: the dale of the bond is ihe 7lb
Uaudon, 1179, Bengal atyle ; 1,305:4; Hie
account of interest sewawy has been setiled :
which sums cast up, make 60,0^6 : li —
0,(i01 ; 3 : 16 per cent, on account of sicca
rupees aildeil lo that, mskea 09,630 : 7 ; tbera
is an end of the account."

Was this entry made before or afler Ihe bond
was paid i — It was made long after : 1 did oat
know when ibe bond was paid : when the
papers were colled for by tbe Aiidnwlet, I en-
tered it.

Did ynu make the entry from the inspeclion
oflbe duitavaiae immediately after, or from an
aci'oual in ihe adawlut?---! saw it Ihe same
day I saw the dustaraiie.

tVbat did you loean by ihe eipression " for
which we ore now paying ihe hond?"-— 1 only
meant " for which a bond has been paid."

[Mr. EUiiit says one word makes the dif-
ference i Ibe dilfere
' dlkil* and dioil.

aniy as between

I'he entry nughi to be mede
" when the bond was paid."]

VVbv, insiead of describing the bond, by
>■ the bond of which Bollakey Doss bad wrote
Ibe parlicniars," yon did nni describe it by Ibe
name of the Persian hnaA, which bating been
paid, must be in Ibeir possession f — They did
not shew me ibe Iruud : I was dependant upon
Ihem : they did not shew me tbe original bond,
bul only Ihe com nama : I obeved iheir orders.

tVho rlo you mean by ihey r — Mobun Per-
aaitd, Pudmohuu Doss, and Uungabissen.

Were Ibcy all there ^" No, Mobun I'eraaud
was not ptFtenI : 1 wenl lo ask him : be said,
I'udtuohun DoHi is Ihe brad man. go lo him.

Do you know ifMubun Peraaod and r.aua*-
biuen were ever acquainted with this tiaa

1083]

15 GEORGE m. Trial o/Maka Rajah Nundocamar^ [IQBI

tioB at the time of the entry ?— I cannot say
IbcT knew of it at the time of the entry.

0id they erer after ?-^They knevr after-
Farda.

How aoon after wardu? — How can I tell
when they knew of it first f they moat have
known it by the paper in the dewanny adaw-
let.

Do you know whether Gang^biaKn, or Mo-
hnn Pieraaad, ever saw this entry in the ac-
csounts P — 1 do not know :- 1 can tell I wrote it ;
that is a fact to which 1 can speak ; hot I can-
not say whetlier thev reail it or no.

Did you ever tell them, or either of them,
about the entry?-— I did inf«>rm them of it:
Pudmohun Doss was privy to all accounts and

fapers of the deceased : Gunfpibissen and Mo- ;
un Persaud were not acquainted with the ac-
counts.

Do you mean you said both, or either, and
whom r— Why should not 1 have told them 7
thev said the papers were wanted in adawlet, j
and told me to draw them up. I

What did you say in psrticular?---! went j
and infonned them I had entered the accounts
as they desired, and that they were ready fjr
the adawlet. When Bollakey Doss died, Mo-
hun Persaud and Pudmoliun Doss transacted
all the business: Gunffabissen is in reality
roaster: Mohuu Persaud and Pudmohun Doss
at first aij^reed on the accounts that were to be
aent to the Adawlet Afterwards Mohun Per-
saud would not sgree. Pudmohun signed it
alone, and it was sent into the Adawlet

Do you know of their signing more than one
account P— Yesterday, when I looked over the
papers, 1 saw a paper signed by them both ;
thererore there must lisve been two.

In the account you saw the other day, was
there any mention of these accounts?- --There
is no account in that paper of the bond.

» hat did they say when you told them of
the entries?--- When I first informed Mohun
Persaud and Gungabissen of enteriu(^ these ac-
counts, they said nothing : after that, Nohun
Persaml settled the accounts of Gossein, and
they jointly gave a promissory note in the ac-
count so settled, and paid him the ivhole but 16
or 16.000 rupees, and told him tliey would pay
him the balance : after Muliun rcrsaud told ']
Gossein to receive the money from Pudmohun
Doss : the amount of the was sbout

36 or S8,000 rupees ; hut afterwards, Pudmo-
hun Doss said to him, 1 have not money, but
out- standing balances which I hare not receiv-
ed, due to the estate, which I shall receive :
for the sums which have already been paid to
ditfereui people, you will demand receipts : if
you will stay, 1 will pay you whatever sum the
balance amounts to : Pudmohun Doss, Mohun
Persaud, and Gungabinsen separated, and God |
knows what they said after ; Mohun Persaud
and Guogabissen compLuned ugaiust Pudmo-
hun Doss, and then all the pa|»ers were brought
to the Adawlet : these three people, Gossein,
Gungaliisscn, and Mohun Persaud, joined to-
gether in coudnI to oomplaiu ; but ouly Gos-

sein complained : Gosaein's name it Bridjsa
Ibishes Gee : I do not say exactly wbe oan-
plained with Adawlet; that will appear by the
proceed in^s*

What distance of time, as near aa jou can r^
collect, b«*tween making entries in Bollakey
Doss's books and the com|ilaint in the Adawlet?
-—I made tbe entries ab^mt four y««ra and a
half ago, aa nearly as I can renneuiber.

[Mr. lc<rrer prod ucea an office copy of tba
esecdtors acrounta, delivtred in by Pudmobna,
filedthelstufacti»ber, 1774.]

Can vou be ceruin that it is about four yesn
and a half ago?— -I believe it is, but cannot
speak precisely.

Can you speak to half a yearP^.T believe it
was four veara ago, but will not swear tos
paper that baa no date to it: there ii no date ti
tlie entry, I cannot be any ways certain.

Will you swear it was more than three ycaisf
—If I thought I should be questioned by sodi
gentlemen as you, 1 would have wrote dova
what J was to say : I can swear to thia. Thai I
firat entered this account a little time after th«
accounts came into the Adawlet : by a little
time, I mean two or three months, or aoj
thing under a twelvemonth.

Are there any articles without P— -Yes, I am
show you fifty.

Do yon know of any objection made b? Ma*
hun Persaud and Gungobissen, at the tine if
your writing the accounts, to the time tbcy
were delivered in?- -I do not know wbetbs
they were displeased or no ; I know they wsn
in counsel with Gossein, who afterwards eo»

e lined ; but what their coonael waa I do ml
ow.

Were you ever with Bollakey DaoB at tb
army?— -i was.

Ilow long ago ?-- -About ten years ago.

When you were with him, do you koowasj
thing of bis being plundered?---! havebcftic
said that he was plundered at Duzar of etery
thing.

Tell as near as you can the particulars rf
what he lost ?— -A little trunk of private papsrti
which he never showed to any body : how en
I remember what was taken from him ? hii
tents were taken ; nothing was left him bothii
jsmma.

Do you know of his having jewels at ihil
time?- --He was not plundered ofany ieweliil
Buxar : I have heard that at Muxadavad ht
lost a small quantity of jewels mortgaged 10
him : I was not there myself.

How long since did you hear it, and fron
whom ?— -The Gomastah who had abacoodd
from Muxadavad during tbe troubles, -caBC
in to Bollakey Doss, and informed him of it: I
was present If hen the Gomaatahaaid they wcff
plandered.

What quantity did he sa^r, and whose pi**
perty ?---A very small qoantity, notabore S«
3,000 rufiees worth. A Shroff at Mnzadavid
ha«l taken a small quantity of money htm
Bollakey Doss, and pleilged theee jewels.

Do you know ol B^Ukey Dom's hifMT

1025}

ai CalcuilOf Jbr Forgery,

A. D. 177S.

[1036

been plundered of any J^^^^ *t any other
line P— -I ba? e beard of no otber jewels : I
bare told yon all I know about iewels : 1 never
beard any word of his beings plundered of any
»th«r jewels.

Do you know of anv nioney beings recovered
by means of Maha llajab Nundocomar from
the Company for any person ?— Pud mob nn
E>os8 used always to attend at Mr. Verelst's
iritb Maha Rajah Nundocnmar: when the f|;o-
rernor was goings to £uroi>e, he was at Bel-
ridere : Pudmohun Doss went with Maha Ra-
fah Nundoromar to wait upon him, and occa-
•ioned the Company's bonds to be paid to Gun-
^iasen.

When Maha Rajah Nnndocoroar's accounts
irere settled, do ^ou know of the balances
bavinfr been paid him?— I do not know if the
balance ever was paid him or not.

Were you present at Belvidere with these
persons snd Mr. Verelst ?— I was not : I knew
vf their nfoing^ there for the purpose of getting
the bonds : 1 saw them set out, and saw them
return.

Court. Gire evidence of nothing but what
f ou know of your own knowledge.—^. This 1
know, that a man was sent to call Gungabissen
snd Pudmohun Doss : one went in a palanquin :
the other in a carriai^e : they broui^htCom-
pany'v Iwmds ; they told me they were going
to Belvidere, that Slaba Rajah called them to
go along with him.

When tliey set off, do you know where they
l^ere gointr?-— They told me they were going
there : Maha Rajah sent for them.

Do you know the papers for which they
irer« going?- -The pavmeut of the money
bad been daily expertedf : they went to get the
Company's bomlK : Pu«imohun Doss snd Gun-

Rbuiaen said the governor was going in a few
ys, snd they ciTtainly should get the Com-
pany's bonds. Upon their return, they brought
the h«>nds Hod Ciirried them to the widow of
Dollskey Doss : a few days after the governor
iventaway.

Do you know of any of these bonds being
paid to Maha Rajah Nundocomar, for a debt
liie to him hy BolUkey Doss P— The widow
^Bottakey Do«t, when the bonds werebrought,
Icsired that they might be carried to Maha
Rajah Nundocomar; because, she said, they
bad l>een obtained l»y his means: I was pre-
icnt: I heard her with my own ears : she said
be had lieen very generous to her, and had
ihewn great attention : she adde«l having Grst
Icftled ^nth him, she would afterwards settle
llie other accounts of the house. Pudmohun
Dons delivered an account to Gun£^abissen :
ENidmohnn Doss sitting down, ordered me to
iTrilr out the ucronnt of Maha Rnjah Nundo-
^mar with the deceased : this was in the pre-
l«Bce of the widow : they gave the accounts
^ the %vidow of -lloilakey Doss ; a person of
Ale name of Durhamchnrn, desired her to
^Mke bersflf mistress of the business of those
NMuuoti: Durbamchtirotoidmeso,

¥0U XX.

Court. You must not mentk>D what Durw
hamchum told you.

Did you seethe widow P— I did see her.

Did she seem pleased or displeased with the
accounts P—1 cannot tell whether she was
pleased or no.

Did she read the accounts herself?- --She
cuuld not read: Pudmohun Doss might have
eirplained it to her.

VVhere is the widow now ?*--She is at Be-
nares.

How long has shebeen at Benares?— About
a month or two after receiving the Company's
bunds, she went there : Pudmohun Dosa ac*
oompanied her part of the way.

Is Benares within the jurisdiction of the
Court?— -No.

[The Counsel for the Prisoner insisted upon
giving parole evidence of the contents ^f the
account given to her.— Mr. Justice Lemaitre
objected, that such evidence could not l>e ad*
miUed, as no proof was produced, to shew that
any andeavonrs were made for the attendance
of the widow, or the original papers in her
po«8ession ; to which objection the Court ac-
ceded, but allowed the evidence in favoui: of the
Prisoner.]

Was there any mention in that account of
the bond?— -There was no mention made of
this bond in that )iaper : it was only a gross sum.

What wss it an account of ?— It was not
an account, it was only a fird, containing an
account of money received from the Company,
which was obtained by means of Maha Rajali
Nundocomar: there is an account of the dif-
ferent sums due to the creditors, and a balance
of 60,000 rupees.

Was it after paying Maha Rsjah his demand ?
—After paying all the creditors, that balance
remained due.

Do you mean that Maha Rajah's accoant
was included in it ?— -Yes.

Do you know of Bollakey Doss's being con-
fined in prison ?---He was confined in the
Coort of Cutcherry one niglit and one day :
when the snmmons was issued against him, ne
went to Cbanilemagore.

Do yoo know any thing of the death of
Bollakejr Doss?— -He arrived the 1st day of
Assen, six or seven years ago; Bollakey Doss
was then very sick : Maha Rajah came to bis
house to see nim about three or four days after
his arrival : Bollakey Dohs's wife and datigbter,
Pudmohun Doss, and many other people ; and
I likewise was there. BoUakey Doss said to
Maha Rajah, ** Here is my wife and daiigbtert
and Pudmohun Doss ; 1 recommend tliem to
your care, and I wish yoti to behave to them
as you have behaved to me ; Pudmohun Doss
has the management of all my business of
whatever nature, f recommend him to you.*' I
then went away to my owu house to eat.

When did Bollakey Duss die?— lie died on
the IJtb of Assen.

Did Bollakey Doss understand Persian?— •
He could neither read noc vit\Va Sx\ \»it ^<c^ V

SU

1027J 15 GEORGE III. Trial ofMaha Rajah Nundocomar,

know whether he understood it: he went to
the Durbar ; what he spoke there I know not.
Had Bollakev'Doss a Persian seal?— He
bad one ; but I do not know that i should be
able to know it if I saw it.

Crou-Examination,

In what lang^uage did Bollakey Doss gene-
rally do his btisiness?-— Bollakey Doss never
executed any Persian bonds in my presence :
he had Persian writers; whatever ne did in
that way, must have Jieen with them : I can
Unswer to any of his Na^^ree business.

Were you with Bollakey Doss in 1172?
[Bengal y ear. ]«— When he first arrived here, I
went to Benares to a marriage : 1 came to Cal-
cutta with Bollakey Doss : some months after
1 went to Benares, 1 staid there a year, and
then came back.

Were you at Calcutta the year in which the
bond was executed ?-«I do not know whether
I was, or was not ; I can find oat by the books,
when I came, [looked at books] 1 arrived the
1st of Srawon, 1822. [Nagree srra.]

How long did you stay in Calcutta before
you went to Benares ?-— Four or five months.

Had Bollakey Doss any Munshy?— He
bad a Munshy called Balkopen ; be had also
a Vakeel called Seillabut.

Do you know what is become of Balkopen ?
— f nnderstootl he died at Jaggemaut.

Where did Seillabut die P—lln Calcutta.

Where did Bollakey Doss live in Calcutta?
•'—Baboo Hazzreymull gave him his house ia
the Burra Buzar : be lived there.

Had Bollakey Doss another house ?— Bol-
lakey Doss had a bouse at Muxadabad;
when he was a little man, he was in business
with Dorrarochund, and Kissenchund, the
father of Diacboud : the business was carried
on in that house ; it was a great while a^o ;
it was before any thing you have heard ; when
be became a great man, and had the business
of Cossiin Ally, he bought a house at Muxa-
dabad, of Durramchnnd, where he settled the
accounts with Kissenchund and Durramchund ;
the house was not his own before he settled
with them.

Was it a house of much business?- --All
the world, at that time, knew that to be a house
of Bollakey Dosses : it was a house of much
business.

Do you know whether he kept jewels, or
other valuable efiects there?---I only know of
his having some money, and those jewels i
nieiuioned : I know of no others.

Do you know Roy Jaggernaut Jew ?--I do
not.

Where are the accounts of that house ?•--!
know nothing of the accounts of that house.

Do you believe that jewels to a very great
amount could have been taken from that house
without your hearing of it?---I must have
known of it, in case any jewels to a great
amount bad been plundered ; a thousand people
must have known it. ,

J>id you ever tee Bollakey Dots put a chop

[loss

or seal to any bond ? — If be executed aay pa*
per of this kind, bis Munshy would have
Known it.

Have you any paper of Bollakey Doss's
writing ? — 1 have not.

Do you know any person in Calcutta that is
acquainted with the band>writiDg of bit
Munshy ? — I do not.

How long did he live with bina P-— f caa
shew how long he lived with him by my books.

Have you any paper of bis writing ?-^No.

Do you know any body that has P— No, 1 do
not understand Persian, and therefore did ool
trouble myself with his hand-writiog.

Do you know whether there are any of thai
Munshy 's writing among the papers? — No.

Did you ever know Bollakey Dots ^ve •
Persian bond ? — When Bollakey Doss, m tbt
course of business, gave any bonda, be ordered
a writer to write them in iJagree, and Kgocd
them with his own hand.

Do you remember, in the whole oouneof
his busmess, his ever giving a Persian bond ?—
I do not remember ; if any thing of that sort
passed in Persian, it must have b^n in the Per-
sian office : I never was present when be exe-
cuted any Persian bond.

If any bond had been given in Persian, mul
not von have known it, to have entered it in tlM
books? — ^The accounts were regularly kept;
but if a bond was given, 1 do not know wne-
ther it was particularly specified : but if tht
bond came to be paid, it would be paid if rega*
larly executed.

Was ever a Persian bond brought you to bt

f»aid ? — I never saw any Persian bond of Bol«
akey Doss's.

How came you not to mention the bond in tbi
account? — If my master received any money,
and gave a bond, I entered the receipt of th«
money, but did not enter the bond into tht
bo(»k till it was paid.

Do you believe, that if a bond for so larse i
sum had been p^iven by Bollakey Doss, abost
ei^ht or nine days after he came from Beoarei,
3'on should not have known it ? — When 1 first
came to Calcutta, I roved about the town to
see t^very thing 1 could see. 1 do not know.

How could the accounts be regularly kept,
or Bollakey Doss know what he was worth, if
only the money received, and not the bond, was
entered? — He may, or may not mention tbc
bond, without being irregular.

Suppose a Persian bond is brought to yoff
master to be paid ; he orders you to pay it:
how would you enter that in the books ?-^
Accordinc^ to the orders of my master: if
he simply bid me pay 1,000 rupees, 1 should:
if he ordered me to take notice of it^ 1 should:
I should search the debit side of my master*!
account, and see if 1 could find such an ac-
count.

If money is paid in, and a bond given, doyM
make no memorandum of the bond ? — 1 makt
no memorandum ; if money is first paid io,aad
afterwards asked for ; if it is desired to be ktfW
and tlie answer is, that then U moat be a|Mi

iOS9]

€tt CaicutlOfJor Forgery.

A. D. 1775.

[1030

tnUrest, aod a bond given ; 1 should not enter
tbat last transaction.

Do not Nai^ree merchants enter bonds in
their books P— ^nne do, and sonoe not.

Do Nafiiree merchants e?er gi?e Persian
bonds ? — Nagree merchants of rank may give
Persian bonds.

[Bond shewn him.] Can you tell whicli is
Bultakey Doss's seal ?— i cannot tell which is
the seal ; 1 see seals I do not know.

Did you know Bollakey Doss's seal ? — f see
•eals 1 do not know ; it was round silver set in
gold : all 1 know of it is, it was round silver set
io fifold.

Do you know if it is either of those on the
bond ? — 1 know it is not one of the square
ones ; the other it may be.

Where did Bollakey Doss keep the seal ? —
liVhen Bollakey Doss was with the Nabob, he
wore the seal on his finder : when he came to
Calcutta, he kept it in his ink stand.

Have you often seen the seal of Bollakey
Dow on his finger ? — 1 have often seen it, but
I should not know it.

Did not you frequently see him put it to the
outside of letters ?— When he used to write to
the Nabob, and great people, he used to put his
seal to the letter: I have seen him.

You hear that there are several witnesses,
that have seen the seal of other (leople two or
three times upon their fingers, that are able to
•wear to the impressions ; cannot you recollect,
tbat have seen it so much ot'tener ?— They
bmve excellent tnemories; 1 am not blessed
with such a one.

Was Pudmohun Doss any natural relation
of Bollakey Doss ? — No : nor was he of the
•ame cast ; but he had a very great liking to
hioi ; if he pleased, he might make use of a
lack of rupees : Pudmohun Doss was another
Bollakey Doss.

Was he his adopted son? — De called hrm
Lis son, but he was not his adopted son.

£Sheer UUa Cawn, and Nuzzer o Dien, two
Muushies, being called upon by the Court to
compare accurately the original bond with
the bond laid in the indictment, having com*
pared the same, are aworo.]

Nuzzer o Dien examined.
Did you read the original bond, word by
word, while Sheer UUa Cawn read the several

rirts of the indictmtfnt wherein it is recited ? —
did.

Is the bond the same in all respects, and in
every part as that laid in the indictment ? —
There is some variance.

Sheer UUa Cawn examined.

Did you read what was in the record acctt-
tmtely f— I did.

Is there any variance ? — On the record there
mre two marina under the word *^ nittan wadis-
taer:" in the original, there are no such

narks*

Mr. Elliot examined.
What are those a&arkt P— They are merely
4fl<h ci^lM llOGhkU^

Are those dots material ? — I take it they are
not. Persian papers are wrote sometimes with
them, and sometimes without them : if the
omission or insertion of those dots was to be
deemed a mistake, there would always be at
least 20 mistakes in every 10 lines of Persian.

Are they understood to be material ? — They
never are so understood : nor is the Persian
language ever wrote with that accuracy.

Don't the insertion of the nochkts, make the
distinction of smgular and plural in this cise ?
—They do.

Is it the custom in Persian to speak of every
body, even yourself, in the plural number ?- -I
think it is : I must correct myself as to speak-
ing of one's self ; I am not so clear as to that.

Does this variance run through all the
counts ? — No.

To which count does it apply P—To the fifth
only.

What is the fifth count for? — For forging^
with an intent to defraud Bollakey Doss.

To Munthy, Is there any other variance?*
— il. The words, '' nocklie tamasook** (i. e.
copy of bond) are wrote in Persian, on thetop^
in every coout.

[The Counsel for the Prisoner insisted on
this lieio^ a material variapce ; but the Court
over-ruled the objection, thinking it to be no
more than a repetition in PersiaH, that it was
the tenor of the bond, and not meant to be laid
as any part of the bond.]

Mr. Driver examined.

Whom were the bonds and other papers be-
longing to Bollakey Dosses estate delivered toP
— To Uungabissen.

Mr. Sealjff late Register of the Mayoi 's Coort^

examined.

Do you know of any application, either to
this court or to the mayor's court, to get the
papers out of the Register's hands? — There
was an application made to the Mayor's court
by Mr. Driver for these papers, and rejected.

The Foreman of the Grand Jury, who had
been one of the aldermen, and served the oflice
of mayor, desired that the records of the
mayor's court might be produced ; they were
produced accordingly by Mr. M'Veagb, the.
keeper of the records of this court, and the se- .
veral extracts, herein after mentioned, were
had at his desire, for the purpose of proving,
tbat Gungabisseu had ever been treated io the
proceedings of the mayor's court as a weak
man, incapable of transacting his own business*

** On the 8lh of November, 1760, a motion
was made and agreed to, that the will of Bol-
lakey Doss should be deposited in the court.

«* ISth November, 1770. A citatioD issued,
for the executors to bring tn their accounts, to«
getber with the balance of the estate, and to de-
posit the same in the Companjf 's cash.

«* 1st Octoher, 177 1. It being suggested to
the court, that Pudmohun Doss had cuDve^^
away seienl hooks end papers belonging to tk«-'

J031J

15 GEORGE III.

Trial of Maha Rajah liundocomar.

Xe ni' BolUliej Dobs ; ihe court ordered,
Ibal PudmnliuD f>im bIiuuM ilvtiver, or deposit
:lie retrlBlry ol ilie court, all such bunk*,
papeni, anil Tiiuclien, loucliing, or anv way
KlauitKlu llieaccnunli of tlie estate nr'ltnlla-
firy Duss, deCFBHCiJ ; auU tliai ilie said Fud-
muliun Uai* aliall be iiermilled to attend his
WD afrnirv, under the cuHtody or pruper
lierlfT'x peuns, until the said accouDlsure care-
fully txniiiiiieil.

" 14tli J.^nuury, 1773, Gboaaiiie by liw at-

'nrv, William Mugee, informed (he cuiiil,

)l ('uilmohun Duss, one of Ilie execulom ot'

i liHi will and trslBTnent of Bullakey Uoks^

. IS lately dead, and that Guogabijtseo and his

Ikrother Hingou Lultan, who ii at PatnB, are

remutninB executors ; and that Gunitalis-

U iucapaTile of iKtioe charge of the affaira

oflbe»i<l HulUkey Dusb. Onlered.tbat Wil-

Kam 31a^F, n-gisler ol'tUis omrt, shall forth.

'with tiike charge iif the books and pajierBof ibe

Alale of the said BolUkey Doss, deceased, and

■etile the tjime, and report to this court a true

■ritleincal Lhertof.

" Januury Slsl, 1773. Ordered, ihala cita-
tion sliall is«iie against Bridjoo ftitoon Dusa,
Keliolrnni Puuda, and Guugabom, re(|uiriu;;
Iheni to be, and appear betbie the court, od
Tuesdiiy next, lo slieir cause, if ibey hare any,
by they »hfiuld not delirtr over unt^ flfr.
F'illiain Mngee, register of ibis coiir', Ibe
Iitooks, papers of accounis and olbera, beloug-
, ing lo Ihe estate oi' Bollakey Doss, deceued,
ooiiformable to tlie order of this court of tbe
14lbiusiun(.

" January tbe 2(llh. 1773, The sbcrilTa
officers returned the citation against Dridjoo
Roloo[i Ooss, Kebolram Ponda and Gouga
Boae eipftiied.

' WliereasPudmnhunDoss, nnenf ibeexe-
CDlorsor Irusl^eaot'lIulUkey Doss, deceased,
«D Ibe Isl day of October last, was ordered lo
deposit in the registry of thia court, all tbe
bwiks, anil papers of accminls belonging lo tbe
cilale of Ilie luid Bollakey Dobs, deceased ; m
consequence whereof, ibe said books and pa-
pers were depoailtd in a room of the house of
ibe said Pudmnhaii Doss, in order lo be perus-
ed aud examioed, wbicb room was secured
vith two locks; tbe Lev of one of wbich locks
was in the posseHsion orUalLioviu, and ihe other
in tbe caic of ibe said PudinnbuM Doss's peo-
■ pie. Bllgovio this day ajipearing in court
upon oalb, declared, thai uoe day, when be
went up to the said room, he found tbe door
bad been opened, and ibat hit lock, logelber
vith a knot hehad tied upon it, bad been open-
ed, and on going into the ruoin, he found that
tlie greaie'!! pari of' ihe papers were taken
■way, Ifnjelher with some cilbertbiugvof value.
That u|init making an exclamutiou, and
threalenii>e to come lo court to complain,
one Kthoiraai Ponda, then in the bouie. re-
qncsled liim lu be quiet, and not to go lo oom-
piain Id the court, but go and speak In Ibe
W; and soon aRer MobuD Persuud cunie
vheahe aud tbe said Kebaliaoi Poada neat

near Ibe widow, and spoke to ber aomeltiiafvl
wbicb he tbii depooeot cuuld not h«-- --■--■
stood at some distance from them ;
alter Muhun PeriHud, and tbe said Kebolrai
Puuda caiue lo the place where be wai
be^ed him doI to expose ber, and Ibi
would deliver up all sucb papers aa ran
in ber pouession, and accoidiugly tbe said K
bolraiu Pouda went and dug tbe ground in I
conipound, and got some books and paperaoul
of it, and delivered the same to this deponent,
wbicb he put into a cbrll, and locked up : and
whereas the said Pudinohuu Dow liaviog
lately deparled this life ioieslate, ami iiu no*
having yet petitioned ihiscouii lor iHleiBofad-
mioislraliou of iIib estate of the said Pudmtibw
Dost, ileceased ;

" Ordpreil, Ihai public notice* be •ffixxl, it
public places ul this to wo, nolilyins, ibat, if
some periuu or peisooa dii not within 14 days
from this day, |ietiii<>n the conn tor Irtlen it
admioislration of Ihe said Pudmuhuo Dmi^
deceased, Ihe Court shall ap^ioint a proper p«r>
con lo take charge theri'of.

■'July 3nd 1771. It was ordered, that ihe
papers of Pudmolmn Doss should be avparaUd
Irom thuseuf Bollakey Dobh.

" This order was unl carried into execillio%
till IbeSTih April, 1773.

" asili March, 1174. Mr. Drirtr. altofM;
for GungabiGKen, read a petiiioii Iruin bi*)
slating, that b^ the order of the ciiiirl all ibe
papers belonging to ihe eslaie of Bullsk*} '
Doss, were (lejiosited in the court, tmnof
wbich were 28 bonds, receipts, and *anchcnf
that be bad comtnenced suits in the Dewonnaa
Adawlel ; and wanted the said bonds, re«apti|
and other voucbera, in order to establiib tb<
aame : and praying, that Ihey may be delivend
lo him, giving the uaual receipt tor tbe aaaie.

" Tbe court deferred the consideraliOD oflht
said petition lill tiexi couri day.

"Ordered, Ihat an officer of tbe said Dewia-
nee Adawlet be permitted lo aileud at the regit-
ter'tt office, to inspect the books, papers, ani
vfiuchen aforesaid.

" aith day of January, 1T75- Mr. Farrsr,
advocate liir Guogabisaen, surviving executor
of Bidlakey Doss, deceased, moves, that two
chests, containing papers, accounts, and vouob>
ers, relative lo tbe accounts of the eaUie of lb*.
Bsid Bollakey Doss, deceased ; and also S8

bonds and receipts, belonging to the said <■

' lited in the registry of

ihe instance of Wil-

; depnaitr

the late mayor's

liam Msgee, who was consliluted attorney of
Bridjoo SpcrGushaln, a legatee named in llie
will of the said deceased, may be delivered to
tbe said GungabrBsen.

" Ordered, thai the rei;isler do took into the
proceedings of tbe late mayor'* court relative to
ibe aboFe pnptrs, no^ounis and vouchers ; and
inform Ihe court ihereuf, on Monday next ihs
SUth instant.

" January 30, I77S. Mr. Furrtr, advocate
for Guogabisien, surviving eiecuior of B«l-
lakey Duss, deceived, moves, Tbu imcbfsm

at Calcutta, for Forgery.

Bpapcn, aecnunls and Touclieni, re-
e HGCuunU of Llie rstnle of llie nid
r Dms, decreed, aod also twenty-
•)!■ and (ecei|il« Iwleoi^iiig lo ihe laiil
kioh were ilrpusiwd in the registry of
mtiyor't uuiirt, >ii raeotianed to this
I llie f Mil inslaol, may be delltered lo
limijaliisieii.
Brir, adiocale fi>r SerJinaut DnRS and
a UiiM, admin itiualnr* of I'udmoliun
EMe-), wlio WHS one of llie executor*
id Bullakey Oom, deceued, ubjecu

'u orderril, Thtt Ibe Renter da, in
ind wiib the assiiittice of Hiizzere-
Mi, and Cnuennut Baboo, IhiiIi of
. exaiuiiie Ihe suid papers, accounts,
ber», buuds and receipbi ; and BeiinrBle

B[iear lo belong to ihe estate of the
f y Duss, deceased, from those which
tH-lsng \n Ihe etiale of the B>id Pud-
o«t, deceased ; aud that he do deliver
r uni4 the said GunirBliissn), and tbe
t the taid Seeboaut D-ms.
rch 34, 1175. Mr. Forrer, adrocate
ingabiaien, turriTing eieciitor of BdIII'
loaa, deceased, mnirs, That two chests
nint( [wperK, accounts and vonuhers, re-
10 Ihe HCCxuniB of the estate uf ihe said
DiHW, deceased; and also ^8 bonds
pto beluTi(rJDe to the said estate, which
Msiii'd ill ihe registry of Ihe late
— -■, may be delitcred to the said
they not having yet hero pxa-
■ntuant in the order uf tliis Court, of
■tay ofJanuirv last, owing to Cossi-
*■ -■ It aitenilinir. .

Ill* ocare <or Srehnant Doss and

A. D. 1775.

[lOS

r Pu.1ri

eretnplorily ordered. That the Re-
I pmeuce, and with ihe a^sislance
laul Baboo, and the aaid C'nssrnaiit
caae lliey both attend, or if oue iif
Bite nils, then

the<

lU, and TODcberK, bonds aod re-
nd separate aiich as Kpuear to be-
Ihe euale of the said Bollakey Dnss,
\ from those which appear to belong
of the said I'udmuhuu Dots,
; aad that be do deliver Ihe former
I aaJd Gun£;abissen ; aad the tatler,
•aid Seebnaut Doas and Lancbinon
r Ibe said Pudmuhuii
rated, wilbin one miinth from this
B neitlier of iliem. the caid
■ttl Uaboo, and Cossenaut Babou,
, that the Hegister do examine, and
■cm in ihe liest mauner he can, and
Kb of iheiD to the «aid (lanies re-
as he sluill tliink ri^ht, within tbe

Mr. Staty examiQed.
la couequcitGe of Iba laal order of

the Court, examine aud uparate tbe papen
— I did, after having examined them with anJ
wiihout Coesiaaut and Huzzermaul, by liie
sgreemriil i>f the pariirs.

When did you ilaliier tbe bonds, and 1
olhrr inigwrs, relaling to Biillakey D«i
estate, to Oungabiuen r— About a7ib April U

. Don examined.

Itoilalfey Duss?— I knew
young.

Did you kr
olULey Doss

Did you stay with Bollakey Dossf— Yi
How many years? — One y ""

Tvf

n him sign and seal n

iV ere you his servant? — I wi

Have you seen htm sigo any papers Ta
used loi«e him sign Nagree pafiers, and «
Persian. 1 baresten him uitli my own e

Have vuu ever had a brolber? — I bail ii

Was Pudinuhun Doss jour brotlier?--

Were yon his administrator f — His a
and effeclE are in my hands.

Have you oUlainrd au order of Court to |
bis adminialrslor? — I have.

Where i. ii?~Mr. Jarrel ha
ofadruinislratiou proiluced to bim and OGebn
Dnss, his t'slher.j

[Mr. Jarret proves service of noiii-e on the
witness, to )>roduce a Nai^ree pajier given lo
PiidfiiMhun Do*" by Maba Rajali Niiudncomar,
when Mohun Persaiiil, Oungabissen, mil Pud-^
luuhun Dnsi, were at his hnuse, lu Bidlak^
Dn«s'8 own writing, dated ahnul ihe
Pn<H4e. He likewiBC proves the saute
on Setbnaul Oosb. ]

Seebnaul Dois examined.

Have you any paper belonging lo yoor lole

son PiiiJmiihun D<issP--l wataiPutua, when

he died. I hare oever had any ul' his papen^v

Luuchmon Dois examined. ^

Htve you any papers bplontcrng lo PuJi||o> .
buD Doss? — Buiti Piiilmnhun Duas's private

papers, and those of li'illakey Doaa were in lh«
cuurt. Gungabisscn bus taken a» sy Bollakey
Doss's nspt-ra. PudniidiUD Duss's icmain
there. I ariived here ei|^bl mnuilis afier ibjl,
death of Pudmohun Du». That psper ~'~~
not in my posseniun.

Have you looked over llie papers

Kitten Juan Dou ei

lined.

When ynu went wiih Mr. HmWy. wh.
pers (lid vou limk l-irP— 1 Imknf lor a
wmte in Bullake* U'wsV hand, a>giird by
maliiin Dom, ft was a paper, in which all
the Kureeiiienl was Jrawn.

Did you Inok oter every paper f — I lonkeil
over everyone paper, and
not among them.

Jury. "Would not Ibe Curra Nami
bcoi fiJta up, on a bond giv«u lo i^bHi

tOSq 15 GBOBGB IIL

t-^A. It M the

7

•MiBg It 1 ifall ksMT wbctfa«r h it ioeh M hft
«m4; but 1 do wk oodoHaad FenHUi. I
fltwold kaoir wbetbcr the Mtl WM like it IhNB
Ibeiiuipe.

Did Botbkffir Dmi eifl;!!, wiieB he eeiled
PciMO pepmf— He did set*

Whet pert ef the peper did hm ml oof— I
have MM hifli eeel umbv pepen*' fle need te
pot Im ecal 10 Iclicn MM pepen.

Wbetoerfeot were joaf — I Med to write
litleri. I had cheige of the tffceterr.

J«fy. Did yoo ever iee Bollakey Dees
write or ocalf— He iiae tigned hie OAffle on
If aflree, end pot hie ocal en Penien papen^

How near were jottt when yea aaw Ilia aeal F
*-l liave aaen hit acal on hb noger rerv near.
If hen the Sepoya ^sed to bring oralVa for their
par from 4he Nabob, Bolbk^ Do« need to
taJEe from the Sepoya the drafk, and gif e them
ft paper in Pcniao, on which he pnt bb aeal..

Did yoo efcr ace him pot it tonbondf— I
ncferiAL

Mr.Stakjf

Wen yen prcacnt with Kimen Joan Doaa,
when lie loolMd over the paperaf— Yea.

Did he hwk at all the pepemf— No. He
wentd not look at aome, becaoae of theindorae*
sent, and aome becaoae they were old, and
eome beeauae he tied them ap himaelf. I ap-t
mehcnd the papera conid not be ezamittcd in
leaa than three daya.

Kisten Juan Doa examined.

Did you examine e?ery bundle ?— There
were aet eral large bundles of papers of old
accounts, that 1 did not examine, thinking
them of 00 use.

Court, Tbb will not entitle yoa to read any
paper, or make what Kissep Juan Dosa spija,
etidence. But though it is not strictly so, I
will nevertheless leave it to the jury.

Monohur Munshy examined.

Do yoii know Mobun Persaud ? — I do.

Has be ever sent for you lately ? — He has.
. Did he shew you some papers P — He did.

In what language ? — In Persian.

Tell the Court truly what passed on that
occaaion?— He called me three daya before
Maba Rajah was put in gaol : it w.as about aix
gurree or the day when he aent for me (balf
past nine) : he sent a man with bb a#lam, who
deaired me to come to Mobuo Peraaod, for he
had agreat deal to aay to me. I aaid, I could
not come now ; I had busmeaa : 1 will go at
noon. At noon 1 weot to hb hooae ; he waa
very glad to aee me. When 1 arriTed at hb
honaa, he hid me ah down by him : we two aat
down tq(ether : there waa nobody elie., Afiier

heseid^lhete
writing, laid,
leekatthcM. 1

aaid, Tenwefehdbrea
jah; I hate bcnid they
writing: 1 asid, Thef an
writing; irth^wcn,l«a
that Im taok enfc a hand IbnsMoek
kaf e alao hcnrd tfab wna wear hi
hiokatit. I looked at it, Md rend it.
Neither b thb of aay hnd

I

I

aaid, 1 beard

b a friendship between yen
not yo« tell nhentlhbr Isnin
not my hand'Writing. Mennn
If yon will eay they are ef year imnd-anilbfi
Maba B^ will he n great Mar, and wiU matt
with gnat pniMBhnMnt. I do Ml want yen w
tell for nothing; I will gin yea 4 or S^M
rapeet. I aaSi, I eannot teli aneh wenb h
thcae; it b net my hand- writing: howcani
tellUbf He then adSd, WeUTtf yon will Ml
aay it byonr hand- writiafTf find out nasanth^
Will aay It ia hb hand* writing: whnieter blilB
givenl wil gin bun; 1 wUI likewbe mifet
you joyful. ffohnnPeraandaaidyBnqninftr
anchaaaan: I anawered, J eannot do Ihb: I
aaid that he waa adfising me to do n nrjbd
hnaineaa, and I wentfrom thenoe.

Did yon relate thb to any one, upon yaar
getting homef — ^Itbansontbandtenorama
daya ago, ahiee.tbb happened: how mmf
men have asked me abont thb 1 know nai^itn
so loi^ ago: as I mentioned, nsany fiknii
and rebtiona have asked : how can 1 tell inf
one in particular ?

Have you told it to any body P-*I mentioaci
it to nobody innraediatel y.

Did yoo tell any body that day ? — I did aoL

Did you the next day ? — 1 do not knoir : [b
recollects] upon the evening of that day i
mentioned it to Permanund Mokerjee.

Crosi'Examnatwn,

Who was at Mobun Persaud^s house wbia
you went there? — I saw Kisseo Juan Dees;
he also aaw me ; but in the room into whicb I
was carried, there was nobody but Mobun Pn^
saud and myself.

Were none of Mobun Persatid's pcofh
there? — I went up stairs : 1 saw Kissen Jaa
Dots sitting there : I saw no one else.

When Moliun Persaud spoke to you, did ysa
understand that he wanted you to tell whetacr
you had ^rote it or not, or to say that yoa bad
absolutely wrote it if you had not? — Howcai
I tell what passed in bis heart: 1 tell nbst
happened : 1 have taken an oath : you have
put questions to me : what I know I told yaa.

What did be sav to you?— '« If yoo da^
it, Ma'ia Rajah will be proved a Uai^ and ml,
have great punishment. Y^n will not «y h
^rmming} youwiUban4dr5y000nftjiir

1037]

at Calcutta, Jbr Forgery.

A. D. 1775.

ClOSi

Did Nobun Persaud mean to get the man
that wrote it, or one who did not, but wonid
swear be did ? — He said, <* If it is not )^our
hand- writing, find out such a man for me, who
will say. These are my letters : what is proper
to give I will gi?e ; and i will render you joy-
ful."

Where does Permanund Blokerjee live ? — In
tbe same compound with me.

What is bis employment f — He is in no em-
ployment.

Did Permanund Mokerjee ask you, or did
you tell bim ? — He asked me.

How came he to ask you ? — Because be sitw
the peon come, be asked me why Mobun Per-
saud sent for me ?

What was the peon's name ? — 1 asked bis
name : I do not well remember ; bnt I believe
U was Cawota : be said he was Mohan Per-
saad's man.

Did tbe peon go with you to Mobun Per-
iaud's ? — He did not.

When did he call you ?— At seven gurrees :
I went after mid-day.

Had you ever been at Mobun Persaud's be-
fore ?— 1 have, because I owed bim 73 rupees :
1 never was in that room before.

Did you tell any body else that day ? — I
ODly told Permanund that day.

Did you tell any one tbe next day ? — I did
not that day : after that day it got wmd, and a
great many people asked me : 1 told them.

Did Moiiun Persaud bid you keep it a se-
orel ? — No ; but there was a great friendship
between us.

Whom did you tell it to next, after yon told
it to Permanund ? — I cannot remember : many
people aske<l me, and I told them.

Whom did you tell it to besides ?— I told it
Mr. Durham.

How came yon to tell Mr. Durham ? — Mr.
Durham asked me, who was my master f

Did yon tell any other Englishman ? — No :
what have 1 to do with Englishmen ?

Did you never tell it to Mr. Jarret ?— He
uked me in this court : 1 did not tell all.

To how many black people did you tell it ?
x— I do not remember.

Did you ever tell it to Kissen Juan Doss? —
[ did not : I do not remember any other black
BMin I told it to.

Do yon remember any other person that
isked you about it? — 1 do not remember one
hat asked me : there were a great many, but
[ iio not remember them.

As many witnesses remember accurately for
14 or 15 years, cannot you remember for a
ooothf — I am a Company's servant: why
hoald I take such pains about it ?

Whom do you keep company with P— Mr.
>iirham.

Can't you remember any one that has asked
r#ii f-*r cannot remember one.

l>o you go to make salams to Maba Ra-
■h ?— Since be has been .confined in gaol 1
laire not paid salams : I used before.
Jkn jFoa fute yoo have not viaited him tiace

he has been in gaol ?— I do not remember that
I have visited bim in gaol.

[duestion repeated.]— il. Tbe gaol is tbe
same street with the Cutcherry : I went to tbe
gaol one day. i heard Rajah Nobkissen and
several persons of rank had been to pay salams:
I likewise went to pay salam : 1 did not see
bim: I never went but that time.

Yeandelf (Gaoler) Sworn.

Did you ever see this man at the gaol T I

think 1 have seen him about the gaol.

Did yon ever see him more than once ? — I
cannot say with precision : I think I have seea
him once, and remember bim well.

Monohur Metre examined*

Did any body else shew you these Persian
papers ? — Yes, Mr. Durham also shewed me
the teeps: I do not remember whether he
shewed tbe bond : be asked me if they were in
my band writing ?

Was Mobun Persaud present ? — Yes.

Was this before or after what passed at Mo-
bun Persaud's bouse P — It was after.

Did Mr. Durham shew you tbe bondP — I
remember tbe teeps : I do not remember tbe
other. Mobun Persaud shewed me three
papers.

How ]on^ after tbe conversation at Mobun
Persaud's did Mr. Durham shew them to yooP
— It was one or two days after Mobun Persaud
had shewn tbem to me.

Did you tell Mr. Durham any thing of Mo«
bun Persaud's offer P — No.

Relate what passed at Mr. Durham's. — Mr.
Durham looked at those papers, and asked me
if they were of my band- writing: he desired
me to be certain, and speak the truth. 1 told
him 1 would shew him my hand-writing in tbe
hook of tbe Cutcherry : when they were com-
pared they were found not to agree.

Who were present beside Mr. Durham ?—
Mobun Persaud and Jaggutcbund, tbe son-in-
law of Maba Rajah.

Did yon then say that Mobun Persaud had
asked you the same questions before? — No:
why should I do more than answer bis ques-
tions P

Did you any other time tell Mr. Durham of
tbe ofler made you by Mobun Persaud P — Ano-
ther time Mr. Durham sent to me, and asked
if Mohun Persaud had offered me any money :
1 told bim what 1 have before related.

How long is it since Mr. Durham sent for
you ?-*It was before tbe grand jury met.

How long before?— 'About four or five days:
I can't tell with certainty.

Did you come when Mr. Durham sent for
you first ? — A man came to me about mid-day :
, 1 said I was sick, I would come tbe next day.

Were you really sick P— I was fererisb, and
had a purge.

What conversation passed between you and
Mr. Durham P — He asked me if Mobun Per-
saud bad offered me money ; L •ak»l'ii^^>^

1089] UOBOBGSnL

whatmaMMr; uid told him wlMi I hafibefbre
falmed.

Mr* Durhm swoiii*

dMgy BigBrfi gfa— Misfit I loi
WImi WM fSmmnrnmOm f— It
9t tni flioMtiii Mnmi gttV8

I Wit tMild by my drew, abonl three da v« alte
the eommitmeal of Meha Rigah, that the man
that wrote the bond waa the MuDshy 9f the
Cotcberry, aod that he had beee at fimt time
Monsby to Maba Rajah. I ahewed him the
bond, aad aikcd him, in the preaeoce of Jaff-

Ktcbond aod Mobun Permnd: he took the
id and read it; looked §t it kmg aod aeeo-
rateiy : I gave ldi|i all tmee ; I do not know
which first He looked aeenrately at the fint,
end tben said it waa not hit hand. I dcaired
him to be exact, to recollect himaelf, and if he
had wrote it to tell : he ttill said it was not hia
.hand. I then bid him bring me the Cittehmy,
which he bfonght immedimy : from my idea
of Persian 1 did not think them the aamelband.
Mehon Pertaod insisted they were, from his*
idea of Persiao. He knew as little of Persian
aa I did myaelf. Not a word passed of any effw
from Mobon Permnd, or his having seen the
paperajbefore : every day afier that he was at
inv hoiiae ; he never mentioned a word of any
onrfnim Mohan Permnd: oneoftheMolla-
vees of tlM Goteherry told me heipaa toaay so.
I sent for Monohnr, aod he tokl me just what
be has now rekted.

[Ifemorandam. Twoofthewitnessm,Ram-
Daut end Bolgovind, tliat were on the baek of
the indietment, not having been oalled by the
prosecotor, and it having been oiiesnred br the
Coort, and the oonnsd for the priioaer odng
told that they might call for them, the connsa
for the prisoner mid, he was well aeqoainted
with, and oenld give tbe reasons wbv tneooun«
eel for tbe prosecution had not called them, and
that he should immediately call them.]

Ramnaut examined.

Do you know Mobun Persaod ?-*-! do.

Were you present when Moha Rajah was
examined for the forgery before the judges ?— 1
was examined that day.

When was it ?— It was on Saturday : it was
upwards of a montli ago.

What day of the month was itP— 1 do not
know.

What induced you to go there tben P— There
vras formerlv a great frieiidsbip between Maha
Rajah aod Mobun Persaud : they both took a
great deal of notice of me about that time they
quarrelled, and 1 went equally to both when
toey were separated.

At what time was this?— I remember tbe
time, when Maha Rajah one day said to me.
You koow 1 like no one better than Mobun
POreand, except my son : now he wishes to
min OM in this affair of BoHakey Doss ; he is
only an attorney in this afiair : tell him he
caanet get more than 5, 7, or 10,000 rupees,
by sneeeeding in this affair ; tell him, if he
wsasm,! will ghra him 15 or ao,000 to deaist
mm thiapieascntien ; I told Mobun Persand,
ani MMmii Fnaad aaid, 1 hafe teM a great

efAli
aflbhr hefbm the jraidfsa. ThaeaMi
that tiaM, m the DewaMMO Aiawtartk
Fsrsaod having hsaad what I
Maha Ri^ NmMtoeoasar, asked
ssmI desired me to eease, awd ghm
it oo the water of the Chmgea.
Do yew noderstand BngMif>-lia, I damt
When did Mohan P^rsayd tot hesr wfc^
yeqhavemhif— Ihatehelbiwaaid,!! wsaim
or ten montha, before I gave evidence hsfcesfc
jn^ges : he desirsd ae la m% <

month of Assen.

When r^Whcn tiiia aibir was
the Adawlnt (this Cemrt.) he eahl. Yew
her what passed between yea and Maha R^|
yon moat give evidence wit.

Hew kMg was tbhi before yaw gm' M*
deneeP--%-Aboat ten ortwdvemonlliebtfhwl
gave evmenee* abflfeareaoeooatSy.paymMii^
and reeeipta between as.

Did tlua eon versatkm peas at this time F— I
went one day ta bk honae; and helhemdi-
sired me to give evidence of what pasBai-l»«
tweeb me and the Maha Raiab.

Who was preeentN-Thm b God^ AdswH*
mail will tcit no lies. I went gpoo iariwdilii
his house, and nobody waa praasat.

At what tune of the dav waa Itf— Abf*
three or four gnrrieaef the day remsined

In what room of Mobun P^rsnod'i '

was itP— On a tenoss, up staira, there is m
upper room, where OongsMSsealivce: eatti
ootside of that, there ia agoiya, wlMfe we ml;

Were yea aittmg at that tinmf-«-We ami
silting.

Who got up first P— I got up first; and|il
my dismission and went away.

How long was he there P— Three gurries if
the day remained, when I went there; sal
when 1 went away tbe lamp was ligfatei
Gongabissen was aueep upon nw oott ; thcw
were two or three servants there.

Where did yon eee these servants P—1i
Gnngabissen*8 room. I went out of the rosai^
th^ were there.

Be particular io telling Mohan Ptormaii
answer.— When I deii?eretl tbe lueesage fisw
Maha Rajab, he said, 1 have toM a great tamf
Enffiish gentlemen of this affair, and caaatf
desist.

Did he say any thing else to him P— Bi
said, I have told many Englfath grntlenMa;
think within yourself, how can I desist

Did not Mohon Persaud say, if I had fcoivt
this sooner, it might have heen doneP— Bi
said no more : be said be had toM asaay fta*
tieroen : think within yourself, how ean I d^
sistP

Did Mohun Persaod say, if thia affaw bi
been mentioned before, it would have baanfm*
sible to have done it.

[He gives the aame anawwy uAwnlt/f^

at Calcutta, far Forgery.
Mohun Prrsaud spolci

A. D. 1775.

[lOiS

couli) be oblained ; being
ijrnent, he said, T1ips>?

■'•re the wonls.
hare related.

[Mo f jrlber
threatened wll

are tbe words Mobun PersauJ
mire sboul J be say ?]

Whs llie lafn|i lighted before jou went away
from Mohim Persaud'sf- — Yea: llie lamp naa
lighted before I weol away.

Hoirloiiff?---! went at the lime the lamp
was lighted, or about a miuuie or Iwo el\er-

Who bgbted the larap?---Tbere »»< do
lamp where we were : the lamp was in Gun-
gabissen'sroom.

What kiiidoraday? was il fair or iiol?—
It was a rainy day : I tveul with my tXvivi on :
1 walkeil Ibtre.

Was not this 15 da^s before Maba Rajah
WUtakru up? — I said il was 10 or lU days.

Had you erer afteruardB any conTersallon
vriih Hohuii Persaud nn this subject?-'-! UKed
almost every day to go to Mnhun Persaud's.
I went ufier that od my otvD buKineM ; there
waa no other cuoTcrsaiiou on this subject, till 1
came here. I have myself i auit in ibis court,
and come almost every day. lie tnld me the
roornint; of the day 1 gave evidence, In come
here. I came here in the morDing- ; tbe first
light I bad of him, was in the Adawlet.

Do you mean the first or second time you
were examined ?--•! was examined heftire those
freDtlemfu the first day. [Pointing to Mr.
Xicmaistre and Mr. Hyde.]

Where did you see Hubun PerRNuiI, afler

{oa gate the e*ideDce^--''''he, first sight 1
•d of him was here.
Whom do you come to at the Adntvlel?— I
always come lo that geDilemao. — [PuintJag to
the Uodtr Sheriif.]

When did you see MobuD Persand, aAer
you gave your eiidence the first lime? — I
uaed to see lilm every dny.

When did he tell you to come hereP—He
told me, the day I conversed with him on tbe
Mbjecl, that 1 was to gire e* ideoce here. He
•aid, 1 must be there on Saturday se'nDighl.
How should I have knowu when to come, if
Mohun PersBud had not lold me?

Wlien he told you so, uasii the first lime be
WBsexamioed?-"ll was the lint time be was

Did Mohun Persaud nfier Id give you any
money bej ore the judges? — Why should be
pve me rup/.a in such a case? W by should
you ask me such a question ? 1 am not worthy
such suspicion, as tbe gentlemen of the coun-
cil, and all the principal people ia Calcutta,
well know. 1 am much eng^ed in business
«*ilh Mnhun Persaud, 13,000 rupees is due
lo me. I gave Mohun Persaud a writing, that
when I received it, I would give Mohun Per-
■aiid four annas in the rupee ; Ibis was, if Mo-
hun Persaud would give me 500 rupees, in
ready money. I have uot received all the
money.

Did Mohun Perssud Derer nuke you any
VOL. liX.

Do you I
Had you

promise, in canseqiience of giving your evi- '
tlence?"-fle never did.

Do you know Gopenaut Doss ?---l do not. i

Do you know Hada Cunt Itoy i---\ do not.
know Cuogadar ?- — 1 do tioL
1 ever any cnnverealion with Gope<
Doss, at the time you examined befora I
the Grand Jury, or before Mr. Justice Le-
muistre, or Mr. Justioe Hyde ?- .- 1 dn not know
bim. 1 do not recollect having a oy cuu vena-
tion with such a person.

Have you any relation of thenamenf Gope-
liaut Doss?— My boui^e is at Mabla. I do
not know 1 have any relation in Calnitta of
thai name. There is a Gopcnaut Doss at
Malda,* who is a relation of loiae. He is of
my cast.

[A man is produced ; and the wiloessis ask-
ed, if be knows bim.]— 1 do : bis name is
Go[ienauI Naizer.

[The man being sworn, is asked bis name.;i
A, My name is Gopcnaut Doss.

Ramnaut'i Eiamiuation cnnlinued.

Ramnaut. Every body calls him Gopeosat
Nazzer. He one day asked me, if I would
enter into friendship with him. He asked mft
if I would have a (arm ; and said, Come to
my b'luie, if you will do these things, it will
he belter for you. I answered, 1 do not kooir
your house. Oa another day he sen! a man ta
me: T then sent an Adawlat Penn with him, la
see where his bouse was. 1 did uot want any
thing with him : 1 did not go lo his house.

" " He said. Will

to my house f
whose business it is to

Wliai did hi
'au have alarm

: 1 did n

n? Willv'

What was his reaton for coming lo ilia
Iiouse?---He put bis palanquin down at roy
door. I don't know bis reason.

Wlinididhesay tDyouP'-lIetold me what
1 have said ; if 1 have told you wrong you
punish me. 1 know of the sUle of this man.

Why dill he offer lhefarin?---l never ki.eir
the map : I had no riHivet^ation with him ; I
wondered \n should offer me the farm. I be-
lieve he is a farmer, a native, collector, and a

Whose nazzer is be?— I have heard him
called Go pel Mexer. 1 don't know whose naz-
zerheis.

Is he any relation of yours !'---Me ia no
relation of mine: a great many things of

this s

I will c

: out. 1 was si

tbe door of Mr. Killican : Sheck Mahomed
Gcllamey began to say lo me, Maba Itajali
is a Dnibmin, be wilt now be ruined. Do
yoti save him ; you owe Maha Itajih money.
That be will excuse you.

[Tbe Court here interruiits him ; sayiD^
he mu&t not tell what anullier man bad safil to
him, and telhng Ibajury lo take no notice of it.]

When was the offer uf the farm?— It waa
afler Maba Itajah wi

1043]

15 GEORGE III. Trial ofMaha Rajah Nundoeomar,

[1044

Do joo know of Growanoy Chan Nag ?—
No.

Do you know Ram Gopaal Goas ?-- -No.

Do you know Hurrikiasen Muckeijee? — I
Icnow him : I believe be ia the brother of Harry
Cunt Muckeijee.

Did you make bim write any paper ? — I did
occasion bim to write a paper ; but if you can
prove that i offered or gave money to any one
to swear, let me bo punished: they oeca-
jiioned Muckeijee to write it. I went to the
houseof Mr. Driver; flurrykisaen Mockerjee
was there. 1 said to the three men, two of
them were my men, that were witnesses in the
affair of Mahomed Gnllamee. I said to them,
lYhatever you know about this affair, give me
in writing. They said to Hurrykisseu, Write
.to me. The paper had been wrote. They
two. Covin Sinff, and Gundaram Roy, ai^ned
it. I aaid to Hurrykissen, These men baye
git^ me a paper, witness it : he said, 1 will
not be a witness to the paper : I shall be called
into the Adawlet, if 1 am. There was another
■ircar there ; and that paper being torn, the sir-
car wrote out another.

Gorpe Naut Dts examined.

Do you know Ramnaut ?— 1 know him.

How long have you known him ?— I have
seen him in Calcutta four or five years. I saw
him when Mr. Hastings first came to the go- ,
Ternmcnt.

Had you any conversation with him about
any evidence against Maha Rajah Nundoeo-
mar?*—1 had.

Relate it— -On the 9ih day of Choite, I was
^ing to tLe house of Mr. Cottrell : I saw him
Co the south of this house ; he made a salam :
I asked him where he was going ; be said, 1
have taken a buzar in farm. He was on horse-
back, and I was in my palanquin ; we kept
company on the road. I asked him what be-
came of the evidence he gave in Maha Rajah's
affairs : he said to me, Mohun Persaud has paid
the expence of my house, and given me 300
rupees to give evidence. I said, if you have
done this, you have done a bad affair ; no words
are secret m the Adawlet. He went one way,
and I went another.

Ramnaut, He says he was in a palanquin,
and I was on horseback : is it likely such a
jconversation should pass?

Attaram Bote examined.

Do you know Mohun Persaud ?— -I do.

How long have you known him?— Fifteen
^r twenty years.

What is bis character ?— I know nothing of
bis character.

What do people say of bim?— Nobody
ipeaks well of him.

Do they speak ill of him?

Court, You should ask, whether he is to
^ believed upon his oath or not.

Nemo Dots examined.
How long have you known Mohan Per*
Mud ?«^Tweoty or twenty-five youn.

What do people say of him ? — They ifeak
ill of him.

Is he to be believed opon his oath ?— -I cta-
not say he is not to be believed upon his oath.

Mohun Persaud exAmmed.

[Shewn exhibit marked M.] [For a oopf
of this, vide p. 982.]

Ou what occasion was this paper drawoonl?
— ^To shew to Bollakey Doss's wife.

Were the papers shewn to Maha Riyah
Nundoeomar?— r^o: never.

Was it, when drawn out, represented to Bol-
lakey Doss's wife?-— Pudmohun Dota akwt ^
signed it, and carried it >way.

When did you yourself sign itf — When
there was a dispute between ^llakej Dosi't
widow, and Pudmohun Doss, 1 signed it

Was this after you settled Maha Riyah NoB-
docomar's account ?— -Long after.

How long?— Eighteen or twenty days ate -
Maha Rajah received the bond.

With what view did you sign it?-— WWi |
Bollakey Doss's widow called me to her, she
observed my signature was not to it: apsa
which Pudmoluin Doss observed, that tk
widow of Bollakey Doss had taken notice sf
my signature not being to it. He said, **Hcit
is no name, no teeps, no account; only pM
your name to this. Whjr do you make mf
doubt about it? only sign it, and I will give tf
you back."

Is this Maha Rajah Nundocomar'a accotnt,
or not ?— -Look if you can find his name toil.

Is it his account or not ?--It is not his le*
count.

Do you mean that this paper doea not coo-
tain the account of Maha Rajah Nundoeo-
mar?-—No; the name uf Maha Rajah Nod-
documar is not in it, nor was it delivered to
him.

Does any part of this paper constitute Mtht
Rajah's account? — It is Malia Rajah's account:
the Durbar Karrutch is there ; he took tbe
bond for 1€9,000 rupees, and obtained 60,OQO
rupees for Durbar expences.

Will you swear positivefy that this accotuit
was settled at the Maha Rajah's house, in tht
presence of Choyton Naut and others?— N<S
It was not.

Was it never settled, either in writing orvc^
bally, at the Maha Rajah's house, when jot
was present? — It was never settled wheal
was at the Maha Rajah's house.

You have mentioned the Durbar chargci:
are the other articles right and true ?— I ban
not said the 60,000 rupees were either right or
wrong.

What do you say now, were they right fr
wrong?— There was not a cowrie expended is
Durbar expences.

How can you possibly know, that the Maki
Rajah never paid any Durbar changes?-;*
He may upon nis own account ; not upon tbia

When was it you first suspeoted this at*
couDtf— When Maha Rig%h fini matoit

1045]

at Calculla,Jbr Torgery.

A. D. 1775.

[1046

to me, that some Durbar expences would arise,
I from that time had doubts.

When did you Orst suspect the bond to be
forged? --Four daj^s after, Maha Rajah Nun-
documar himself said to me, We ha?e prepar-
ed three papers.

Was not tliat at the time the bonds were
paid ?— Re had the money in his posses^iion.
The bonds were with Maha Rajah, when Pud-
mob un Doss said, Let us ^et the bonds.

When did Pudmohun Doss ffrst inform you
of it?— -When the bonds were put into the pos-
session of Maha Rajab.

Why did you not beg^in this prosecution
sooner then? — I had very little power in the
business of the deceased. Pudmohun Doss
was the master.

When did you begin to have the manage-
ment of the business?— -Upon the death of
Pudmohun Doss.

When^ was that?— Id the month of Cafltick^
18^, [Nagree year.] about four years ago.

Did you ever mention your apprehensions of
iorgery to Pudmohun Doss, and advise him to
prosecute?— -When Pudmohun Doss brought
the bond from Maha Rajah Nundocomar in the
sight, and read it to me: 1 asked him the fol-
lowing morning if he had brought all the bonds.
tie shewed me the three papers, and had the
Persian read to me : 1 said, nothing was due
on those papers : what did they mean ? Pud-
mohun Doss said, Remain quiet, and I will in-
form \ou of the circumstances of it. After
that, the widow of Bollakey Doss complained to
Mr. Russet through Cossinaut : Gosbein like-
wise complained in the adawlet (i. t. M ayor^s
cotirt, and made Mr. Magee one attorney, and
Mr. Sealy his law attorney.

Did Pudmohun Doss ever after give yoa sa-»
tisfactory accounts of these bonds? — No : he al-
ways put me off, by saying he would inform
me of^the circumsuinces.

Did you apply often to him for that purpose?
— -I did not press him much : Gosbein did :
and Pudmohun Doss, in consequence, was
thrown into confinement.

If you suspected forgery, why did yon not
press him ? — He used always to pot me off, by
saying he would tell me the circumstances.

You ought to have pressed him much ;
why did you not? — I and Bollakey Doss's
widow, Gosbein, Gungabissen, and Ballgovin,
used always to be pressing Pudmohun Doss
to settle the accounts, and deliver them over.

Did you ever mention yoar suspicions to the
widow? — 1 did not with my own mouth, be-
cause 1 was not with her, but by the means
of Durhamcburn I did. •

Did you ever by those means inform her,
that you thought it a forged bond?— What I
told ner through Durhamchund was, that the
Durbar expences charged in the account were
niyust.

Tell at what time you first suspected forgery
of the hood ; and that the seal of Bollakey Doss
was improperly made use of.— Maha Rajah
msnttoaed to me the bond, sad then I suspected.

How soon ? — ^The morning after the night
the bond was sent.

What did you see to make yon suspect it ?-^
"l had before reason to suspect if, because Bol-
lakey Doss kept regular accounts, and that no
mention had been made of it in bis accounts :
I had never heard it from Bollakey Doss : I
had seen the letter of attorney, in which 10,000
rupees were mentioned as a balance.

Did you see upon the face of the bond any
thing to make you sus[>ect it? — It was not '
signed by Bollakey Doss, and I knew that
Seillabut was dead a year and a half before.

Before what? — A year or two betbre Bol-
lakey Doss died.

What objection eonld his death be to the
witnessing a bond in seventy -two? [Bengal
year.]-!— A man may write a bond and antedate
it.

When were you so far certain as to tirose-
CQte ? — When I saw the account of jewels, tbo
name of Rogonaut, and the mention of plooder,
I knew it was forged, and from the nature of
the bond, which is not regular in itself, being
conditional : bonds are not commonly UMW
out to when money is received.

Was it from the sight of the seals or signa-
ture, or the contents of the bonds, that made
you first suspect ? — All these circumstanoes to-
gether; I mentioned it often to Mahomed*
CommauK

Are not the eight bonds on the Nagree ac-
count, chained by you and Pudmohun Doss to-
Bollakey Doss's estate? — L wrote nothing;
Pudmohun Doss wrote every thing forcibly
himself.

Are they not charged to Bollakey Doss's*
estate?'— llie books were in Pudmohun Doss's
bands, he might enter what lie pleased.

Were, or were not, the bonds charged to the
estate ?— Pudmohun Doss and 1 never acted v^
comottction io such a business.

Then we are to understand- that yon did not
charge it to the estate ?— I was not permitted
to see any thing.

What IS the amount of those eight bonds ?-«
One lack, 43,*485 rupees.

Who brought the bond to your house the
morning you first suspected.' — Pudmohun
Doss brooglit it.

Were you present, when Maha Rajah gave
it to Pudmohun Doss?— I was, and so was
Gungabissen.

\Vere any other bonds or teeps cancelled be-
sides ? — There were three papers cancelled, the
bond and two teens; two were for 35,000
rupees, the other tor 48,0S1 sicca rupees, be-
sides batta.

When did you first see this account [M]? —
When it was signed, and afterwards in the
Dewanny Adawlet, only those two times.

Where did you sign it? — At the house
where I now live.

Are the other articles besides Durbar ehaiyes
true? — It is no account at all : it is not re-
guUr.

Do yen kttow of any of the iiuns in it ?— le

1017] 15 GEORGE m.

•BV OM Article riehtf-— Bow cau I tdl ifil it
ngbtf

Why Umo did yoQ tign it F— To Mlisfy Pad-
inohttD 0OIW ood Ihe indow.

fld yoa kaow Cboyloa NootF— 1 do.

WIm it be r — A terrtnt of Maba Riyth't.

Look tithe teoowitv tnd toy in whtt nipeet
HitP—Ititiiottpeafied.

Look at the Itik line but one.— It it onrrent
npeet.

J>o yoa know ef ta entry in the boekt of
1S9,690 mpett f «»No» I do not.

. Do yon know, of on article in the Com
Nana of 69,630 mpeet, written by Podnohan
Dott, and tifned by BoUtker IKittN- No.

JOe jfoo know Monobur Jmintby f—- 1 do*

Had yoo etcr .any confcrtation with lii
abovl any Of klenee be wet to gif e io tbit caote»
nrafaoat.tb#boad,aBdwhtt patted on that oe-
catitn f — 1 thewed the bond flrtt to Jogfat-
fihnnd : I thewed it tito to Cija Petmte; hit
Mnnthy rtnd it: I then thewed it to Mr.
Dorbtm, to thewit taMohonnr; hetcoord-
kttly didoo.

MM yoo thew it to Moaohar before Mr.
Dnrbam thewed it himP-—It wet not in my
pttttttionbelbre} I eoukl not thew it liim ; I
■fcowtd bin a cigf^ which I alto thewed to
mtayptople.

Did yon not thew lum the ongint|«.tbe day
befbrayon thewed it bitt, throSgb Mr. Dor-
iMunN— I ctn take tty otib I nerer thewed
Ud the original, heme I thewed liitt the

rrbere did yoogetthfoopy P— I took it oat
eCtboMtyer'teOart.

t Did yoo eter ttnd fbr-Monohnr to yoor
lioote on tbit oocnMonP-He owet me 100
mpeet. 1 bare tent for liim often on that ac-
count.

Did you e?er tend to faim about the bond,
and ask htm if be wrote it P— I neTer aeot to
him purpotely to shew bim the copy,

Did yon send to him, and did yon abew him
tlie copy P—lt it two yeart tince I thewed liim
the copy.

Hare you not shewn the bond or copy, with-
in these three months P— No.

Did you e?er shew any teept to Monobur P
•—Yes, in the house of Mr. Durham.
. . Did you not shew him the teept about three
davs l>efore Maba Rajah was in confinement P

• Did yon ne? er thew them to bim, except at
Mr. Durbam't P— No.

• Did you erer desire Monobur to say he wrote
the bond P^No.

• Did you ever ask him if he had written the
Jmnd or teeps P— Yes, a great while ago ; not
lately ; two years, or two years and a half

What answer did he make P— That it was a
mod while ago: he coold not recollect, who-
-tber he had or bad not; but when he should
aee them he might tell.

*. Aid heaaartay any thing of finding another
p«»on whii bad wrote tbm?^ Yet, 1 toW him J

if he knew the penon wImI imta AooLl
witbtdhewopUibnng|iia»: ha oiid that Aha'
,Riyah tddom wrote diflerent p^^pan with tba
tame Mnntbt, and thsit tt Iliad not Aa ariri*
nal bond to shew, he tboold not baaUaiottl
out the penont who wrolt then.

Did yoa make Um anv pronito, m eniie' ha.
podaccd the man ?— >Idad tay, that if be wisell
nring the man that really wrtta the bond, I
would giTo blm a tarn: ha thid la me, hi
thowfat the Mantby wha wiala it wat tnriHd
off mm Maba Biuab, and gone la Mate-
abedtbtd.

Dkl yoa atk the aama of that Mnadhy f^
No: I did not atk.

Why not, If yon wanted to pvaeoia him?-J!
did not, lieoaosaMoasAiarjpiwnited tafiadedf
the man when ha came btdE, and 1 Buight thiv
him the bond : a men of the nama of BaW
Cawdy fint dirttted me la Monobar, in can*'
ttaoence of which. I tpoke to blm.

How hmg agor— Aboat two yama aU i
half.

Were TOO not tcqoaroted wiUi Manelnpr to-
fiweP— Yet; hmg ago: he wata aenriMli
Maba Riijtb't. . ^

Ware not yoh and Maba Ki^b onea optii
goodtermt together? — Yet; Qjpoo tenat m
ttrictfnendthip: betofedmeashittoo.

Wat KItttn Joan Dottatyoor houte^ whii
yoa thewed the copy to Monobur f— It wat i
year, or a year and a half ago : I ciw*t itH
meniber.

Has KitMn Juan Dott been at yoor
a few dayt before tbo commitment of
Biyah ; and wat Monobur there at the
time P-- Kissen Juan Dose, before ]
Rf^'t confinement alway t tkpt in Godgb*
bitten*s room ; but since that time be has ntt:
a great many people come to Gungabissta,
whom I do not see: I did not see him at the
time you meotjon.

How came you to quarrel with Maba Ra>
jab P — About this business.

Did you see Monobur at your bonse, any
time within a week, before the commitment oi
Maba Rajah P — I nerer did.

Jfittieii Jtiea Dost examined.

Do yon remember being at Mohon Persand^
and seeing Monobur, and when P— On the
other side of ten or twelve days of Maba Ka»
jab's confinement, about noon, or two in the
afternoon. One day 1 was walking tiefore tba
door of Mobun Persaud't boute. Mouobnr ^
was at the door, and made hb talam : I went
and sat with Gungabissen : afterwards Mohan
Persaud and Monobur came into the boasa;
two or three gurries after that, Monobur went
away.

Did you see any papers produced to Mont-
bur P— I did not see any papers : they were It
another room.

AfoaoAtir examined.
Was there any wax seal to tlia
y^P-«*11iera wat no waxttal:

TCalciittaiJor Forgert/.

A. D. 1775.

Are jou tare i1 t*Bi three Uiys before llie
CUM I mi till (•nl ol' Malia llajab Nuadocomar ?--
I am vpry v\eir U was tLree d«T*.

Mr. Durham, I hml itie boDch in my pataa-
■ion, three days before the commliuieDt ut'
Mnba lUjab.

Jane 15, UTS.

Mr. Fairer offer* In read a paper, as a copy

of I he original paper, which the represeotatijes

n( Pudmcihon Dou liad been serred with DOlic^

Court. Vuu must prove lerfice of notii:
GlJP|fBbi*^le1l : Mohun Persaud said all
liapera of Gungabsisen were in llie lianda of
ihe rrgiiter: if any paper was delivered to
Maha Uajah Nuiidocouiar, it was not ia bis
prcwnce.

Mohun Dou examined.

Da you kiiniv GuDifahiSBen ? — Yes.

Da you knoiT Maha lUJah Nundocomar ? —

Did you know Bollakey Doss ? — Yes.
Did you eieraee Bollakey Doss write 7—
No : I never saw hiiu write on any paper
trhataneyer.

Did yaii copy any paper in Ihe presence of
Muhtm Pernud, Gnnc^biGsen, and Pudmnhun
Duns?— Yes, I did, by order of Maha Kajah.
[A paper i« produced.]

Is thill your liand-writins ?— It is.
n'aitlii^ original, of which this is a copy, de-
livered 11 any one^'--Maba Kajah delivered a
eopy lu Pudmnhuit Doss.

Waa any objectioa made to Bignin? the ori.
etna! papeni, when dehvered lo Pudmohun
DonN — He said iii)lhiu|;; hesigned, and 1
gave Ihe (!ojiy lo Maha Rajah.

Who are yuu ? whit is your businesaF---
1 an ID trade.

M'berc do you lifeF— -1 have a lioaae at
'Coninlbiizar: I bare been there Ibese two
J«an; I have beeo going backwards and
forward*, from Hugly and Cbiusura to Cal-
CDlta, for 30 year« past.

IIow canitr you al Maba Bajab's?---! used
So go backwarili and forwards to Maha Itajab's:
a>t Iliat lime I wetil in pay salam.

Is ibe whole paper your band-writing? —
%■• body cf the paper is my band-nriling, and
■ny mtiueisiuit.

Wbattiecameoflhe original .'---Maha Ra-
Inh iiavv It 10 Pudmohun Dost, and kept tbe
"|iv htuiielf.

(I'lw long have you had a house at Cossim-

,'.11 1*. .-All my family are there: I went lo

' i-.Minbuxar at the lime of the disputes bc-

iVMfn Miijr JalBerand Si^uh ul Duwiab: I

IPvindpally reaide lierr.

Have you a house al Chinsura? — Yes, in
>l>e Ophiuni Bmar.

Hive j-nu a houie any where el»e?-.-l prln-
' .'illy reside nl Calt'iitin : I Ibrmerly rented a
'n Calcutta, which I have bought I'ut 5U
' to pay seven rupees per mantb :
mraelf, I hid betlar buy it.

Do you pay n rent for your bouse U Cal-
cutta?— It is my own properly.

Is Ihe house al Chiasura your properly ?—
It is my own property.

What is your trade 1 — 1 trade iu every iMni; :
1 trade in long chtlh, lead, and every tiling
else: I am a merchani; lor 30 years the place
of my habitation has been in Chjnsura.

You say, you trade in so unny arliclee, and
have different bouses: do you carry your cotti-
inodilies nilb you ?■■■! go backward* and for-
wards, once ia two years : 1 send my Gomaa-
tah to ihose places.

Who is jour GnmastabF- — KisscDchnnd was
my Gomastah ; I have no Gomaslah now.

What servants do you keep .'—I keep ser*
vants in proporiion to my income.

Is yourijicoinelarge?---Myinoome is 1,000
ropees: or else how- could I pay allmyservanU;

Describe wliereyour huiite is in (^alculla F —
Tbe place I have lu Ctlciilla is Uuzreymull'a,
but I pay liim a quit rent : roy house ii la
Calcutta,inHuzreymnirs garden, in iheBuzar

Whom did you buy il of f— I bouglU it from *
beetle merohaol.

What is bis name? — Rampursaiide.

Have you got ibe polta ?— No : 1 get a chil
from Hu/reymult.

Hoiv much do you pay Hiizreymull F — One
rupee per month.

WhatoccaHion have yon for so many houses?
— I lice here now : I ^o sometimes lo Chio-
sura ; I do not tike to hire one: al Cosaimbuzat
toy family live.

Wliy do not you live with your family P— .
Women don't like travelling: ihry hveat Co»>
sirobuxar, where Ibey get Ibeir hvelihood

How many wives hare you ? — For a good
man, one is enough.

What are you P— A Banian Nagree Wallali.

What was your business, ihe d»j yon wrolo
Iba copy at Maba Rajah's ? — I did nul go par-
ticularly that day : I uied to go backwurds and
liirwards frequently lo make salani.

Do you go In make aalam loany other great

I, besides Maha Rajah,
other greal man : I a

0 oUiei

the lownF — I g
I acquainted with

Are you in any intimacy with Maha Rajah F
— There is a IHemlship beiween us.

[Mr. Elliot. The word he u<es does not
convey ao strong an idea aa IrieDdahip, hut
means soroetbing beyond an ac(|iraintanee.]

Were you ever a servant of Maha Kajah's ?
—No: i am a merchant.

Do you know whether Maha Rajah kept
any Nagree writer? — I do nul know: there are
a thonsand people under him.

Did you, at any nibcr time, wrile any paper
for Maha Kajah, when you called in f — 1 never
wrote any ulber paper lor him.

Were you ever in Ibe roain before, wheo
Maha Kujah transacted any private hiuinessF
— I never was present, when Ueta&.WlliAvn
private UuncUau.

1051]

15 GEORGE IlL Trial o/Maha RajA Nundoeomar, [105t

How looff Bgo was it rince joo wrote Chis
ptper ? — A boot six yemrs.

What time of the year was it ?— Before the
rabf.

Was it momiog or night ? — ^Three or four
gnrries of the day were remaining.

How lonir were yoo writing that paper ? — |
or i a gurrey.

Are you sare it was so moch ? — It was { of
a gorry.

Are yoo snre it was quite a quarter of a garry f
—Try me.

Did you bring the pen with yoo ?— No : it
was m tlie house.

Was the ink-sUnd there?— Yes; Maha
RaMh was sitting in the hall.

Did you write in the same room?— Yes.

Who brought yon to Maha Rajah to write
Ibat paper ?-*Nooody called me.

Had you ever wrote in the same room where
Maha Rajah waa before ? — No.

How came Maha Rajah to ask you to write ?
—I am a merchant ; e? ery body knows I can

write.

Who was present besides Maha Rajah, Gon-
gabisseo, andMobun Persaud, when you wrote
the paper ? — Choyton Naut, and another per-
4K>n, a Bramin.

Was any one else ?---No one else.

Who was the other person ? — I do not know.

What was his name ?— I do not enquire the
names of every body I see : I have heard his
name is Sangoo Loll. ' He knows himself: I
do not know.

Did Sangoo Loll come about business, or to
pay salam ? — I do not know ; he came.

Was Sangoo Loll a servant of Maha Rajah's ?
•—I do not know.

Were the whole company sitting, or stand-
ing?—All sitliog together.

Did you ever sit in Maha Rajah^s presence
l>eibre this time ?•--! always sit in his presence.

Did any one write on the paper besides?— -
I wrote : they all siprned it.

Who is * all' ?- •-Choyton Naut and Sangoo
Loll.

Who wrote first ?— -Sangoo Loll first, after I
bad signed it.

Who desired Sangoo Loll to sign it? — All
three of them desired of him ; Gungabissen,
Mohun Persaud, and Pudmohun Doss.

Who desired Choyton Naut to sign ?•— The
three men before mentioned.

Did Maha Rajah say any thing?— -Yes:
be desired them to witness the paper.

Did Maha Rajah desire any of them to-sign
it?---Maha Ilajah said it was necessary to
witness it to make it pukka ; and they said so
too, and then signed it.

Did Maha Rajah desire Pudmohun Doss to
sign it?— No: he did not ask Gungabissen,
Pudmohun Doss, or Mohun Persaud : he only
desired it to be witnessed.

Do you ever pay any customs in the course
of your trade ?•— I never paid any in Calcutta.

How came you not to pay customs in Cal-
mitu for loDg cloth, lead, 6cc. ?— I bring lead

and long cloth into Calcutta, and tend thctt
out of Calcutte.

Name a person to whom yon have sold oooa-
modities in CalcntU?— Ten or twelve years
ago I bought a quantity of ckiths from J ogal
I^tty.

riave jou had any doth since that time?—
No.

Jugal Laity examined.

Do you know Mohnn Does ? — I do.

What is he ?— He is in busioess ; 1 remen-
her he bought some cloths from roe when 1
was servant to Mr. Senior : be told me he bad
got some salt about a year and a half smce.

Is be at present a pnncipal merchant?— I
know btm very well : he and bis brother wers
formerly deeply concerned.

Couns.for Prii. Do yon think btm a sua
of credit, when upoo oath ?•— il. I donotknoir
what passes in bis mind.

Is be a man of credit ? — He formerly was.

Was his name hurt, or not ?

[No answer could be procured.]

Do you know any thing of him ?-— He isof
a good cast : f know his brother is a good mas.

Sango Loll examined.

Did you ever .attest a copy of any paper it
Maha Rajah Nundocomar's ?— I did attest i
copy of a curra nama.

Who were present ?— Mohun Persaad,
Gungabissen, Pudmohun Doss, Choyton Nsst,
and Mohun Doss.

What do you know of the paper? — WWt
should I know of the paper ? I know it is ny
name at the bottom. Maha Rajah told Hebai
Doss to teke a copy of a paper ; when Mobn
Doss had taken a copy, be desired me to bet
witness. J asked Pudmohun Doss wbetber
Bollakey Doss's name was to it : he said it
was, and then witnesseil it.

Who witnessed the paper besides Moba
Doss?— Choyton Naut,

What became of the original aAer it wif
copied? — I know nothing of the original: I
know we three were witnesses to the copy:
what do I know of the original ?

Did you compare the copy with the origio*I>'
—No, I did not.

Did you read the one or the other?— No, I
did not: Pudmohun Doss said they weretk
same.

Q. to Mohun Dos$. Did you compare tbt
original with the cupy after you wrote it ?-^
A. What words I did not understand, Pudn^
hun Doss explaine<l : after making the cop) I
read it, and the words that were wrong I tif
tered.

Sani;o Loll cross-examined.

Did not you read the words over your use*
which are, ** I, Sango Loll, have exaiuincil tk
original, and attested this copy ?*' — I couM i^
read it : 1 did not read it : I could not conpt*
the paper : 1 cannot read it.

CoiUd you read it at that time ? Coidd J0*

1053]

mt Calcutta, Jbr Forgarjf.

A. D. 1113.

[1094

read the origiDal paperf— I<;aniiot read others
haDd-wriiin^, tbougb I can read my own. 1
could tiot read the orif^inal.

What time of the day was it ?— There were
four gurries remainio^ when he beg^o to write ;
aod it was eveniDg wnen he bad done.

Was be four gurries in writing it?— 1 can-
not say whether it was four gurries, or 4^ gur-
ries ; he began a ? ery little tiaae to write afier I
arrived.

Was he four gurries writing it ?— I do not
know how many gurries of the dav it was when
1 went : four gurries remained when he began
to write : it was tiie ereniug before he finished.
Did you see him write the whole ?— Yes.
Did all the people who were present when he
he began, sit by him till he finished ? — £? ery
body.

Who are you?— I am a Bramin and a mer-
chant.

How long have you been a merchant ?— I
bare been ten years in this town.

Where do you life? — In the BurraBuzar.
What trade do you carry on ? — 1 am a shop-
keeper, and sell goods.

How long baye you known Maha Rajah ?—
Ten years.

Are you well acquainted with him ? — Very
iXfll.
Do you go often to yisit him ?— I do.
How came you to be there at that time ?— I.
went to pay salam.

Did Mobun Doss copy it from the paper be-
fore him 7— Mobuu Doss copied it from seeing
the original, but when he did not understand,
1m asked Pudmohun Dost.

What thinp do you deal in?— I sell China
govds, soroeumes fruit, and what I can get two
rupees by.

Is your shop full of goods? — Yes.
What is the value of them?— They may be
worth about 5 or 600 rupees.

Were you erer in any other way of business?
why do you call yourself a ^merchant? — I
never have been a merchant ; I never made any
great sam in Calcutta, to be called a merchant.
Can you write? — I can a little in my own
business.

Did you ever attest any other paper at Ma-
ba Rajah's ?— No.

Do you know Choyton Naut ?— Yes.
Has he been exammed in this cause ?— Yet.
What is his business ?— He is a 'servant of
Haha Rajah.

Do you know where he came from ?—!
know he lives in Calcutta now.

Did he sign his name in Nagrte or Bengal f
— In Bengal.

Did you go to fetch Mohun Doss, or Mohnn
Doss go to fetch you?— -Mohun Doss did nol
call me ; I went to make salam.

Choyton Naut examined.

[The last witness says that this is the man.*]

Were you a witness to a paper with thb
man? [pointing to the last witness.]— I was.

In what characters did you sign your naoie ?
-—In Bengal.

Do you understand Nagree?-— No.

Do you talk Hindostan ?-— Yes.

Did you hear the Nagree paper, that yoa
are a witness to, read?— -Yes.

Who explained it to you in Bebgally?—
Pudmohun Doss.

Kisun Juan Vou examined.

[An account marked Q. is shewn him, found
by him among the papers deposited in ihe
court.]

Do you know that paper?— This account
was written by me, and ii signed by Pudmo-
bun Doss and Mobun Persaud.

What does that accouot contain ?— This ac-
count is not entered in the book, but was drawn
out in a hurry to be delivered to the Adawlet.

What Adawlet?— The former Adawlet, not
this.

Was there any account previous to this de-
livered into the Mayor's court?— There was
an account given into the Mayor's court, of
which this is a continuation.

Is the balance of that former account car-
ried into this ? — ^The balance that remained due
in the former account, is brought over into this.

Who wrote the former Nagree account?—!
did. "

What is the reason Mohun Persaud returned
to sign the account delivered into the Mayor's
court?— After the confinement of Pudmohun
Doss and Gungabissen, Pudmohun Doss set
about drawing accounts preceding. This was
at that time drawn out : after that, when Gun-
gabissen was released, Gungabissen, Pudmo-
hun Doss, and Mobuu Persaud, ma at the
house of the late BoUakey Doss ; and they
jointly wrote out this account. Pudmohua
Doss desired Mohun Persaud to sign it. Mo-
bun Persaud, in answer, desired Pudmohun
Doss first, and then Mohun Persaud.

Mohun Dot$ delivered in the Nagree paper
[exhibit M.] which he had been copying, and
it appeared that he had been one hour and a
half in copying it.

Dr.

93,tl7 S

Exhibit Qt,

Balance of precedent account. d8,b54 10 3
7,500 Two bonds, by Baboo.
Mobun Persaud.
5,500 one bond Mr. Loose,
writer.

3,000 Mr. Hare.
14,992 11 S Bamboo Mobun
Persaud.
1,924 9 1 Pudmohun Doit.

S9;817 I

Cr.

Paid to different people as per
following particulars, current
rupees.

5,800 paid to Mohun Per-
saud, balance of 11,262 8,
which was to be paid as fol-
lows, 10,862 8, C. R. bv or*
der of Bollakey Doss, and 400
at different titnea ia \!i\« >^«^
t\me of i^.\>. iS^ia ^^oi^ «»a'i^

)RGE III. Trial tfMaha Rajah Nimdocmar

I

>rrotred from Coja Pe-
'liicb a bonil nas wrii-
rili May Enijlisli, and
Ibe fulloiviug UiiDga
nl.

I ileeds of house, tn'o
Mr. Culver, one for
ic for 5,000.
t of Mttgal Calustry,

lluinchuod Cullry, for
■ bnnci wat wriiteD,
Jay Eoglisb, for cur-

hai^il by Mr. Gulrer,

visCaluairy, the ba-
"iiees.

.40 .ape. ■our pieces

It rui35 rups.

tt. rups. sale of sloop.
1 Balla oDlbe 140 arc.

[1053
Cr.

34 e Duty

oul of which 10,8C9 t
5,469 3, was paid in Ibe life-
time uf B. D.

Account Eilee of allura be<
longiD]; lo Mohun PerMud,
brougbt to bis credit on ibe
liouse nt Moortbedabail, aod
paid hiiD here.
I Paiil to Lewis Cillustry, attor-
ney lo Mr. Sparka, the atlontty
agreeable lo a decree of tbe
Mayor's court.
31,850 Principal,

6,059 8 1 loleresl. .

1,224 10 I Exps. Budawltt. i

39,164 3 3

iD the sloop at
Custom-house
66a 13 1 at 6 4 per cent.
Ud account will.
1,400 Baboo GungsbiaseD gee
513 Sawon gee.

1,913
159 6 S The supponeJ amount salea of
things from tbe house at Patna.
40 Malta, two strings.

14 8 S Brsst pot, in weight

9p. llc(. at 14 per

104 14 SiWer bullion.

159 6 2
910 3 1 On account, outstanding; balanca

95 a bills for sic. rps.

100 account sundries cl. rps.

15 3 1 Banaon 95 sic. rps. at

310 3 1
111 Oni-«UDding balance at Patna,
paid by Oge* Sein Gomaslafa.

376 11 1 Paid KissenchDDil,
goniaatBh at Paiat,
acco. his wat^ea
176 11 1 atPatH.
100 at CalcaU-

S7e 11 1
1,550 Paid M^r Abdul RopOoL
1,160 Principal.
390 Int. and expenecL

1,550
t 13 3 PaidPoltuckGe«aML
Bill 55 sicca nipeo.

500 Gurrceb Doss Pottnck.
400 Mnutychund, hy the haniU
ofRutluoChiiud.
1,000 Kissen Juau Does.

1,900

563 13 3Bahoo Gungrabiuec,
31 IS 3Mootychund, by tii«

bands of Rutlua-

3,484 10 2 chund.

Guodun Doss accl. sloop expenOM

from IT May,to3d of Baadooo.

309 5 3 Audawlet
4,665 1 1 Porlheexpi
van Is, tec.

600 11 1 Accl. prolil and lass,
■ tat iu the boobs.

of house, Mr-
bjPK-

7,500
1,936

ice as follows.

Two bunds, Moboa

3 BsIhii) Mohnn Ptt"

SHud.

Pudmiihun Don.

10S7] at CalaUtityfor Forgerg.

Mokua Peruud ihoim Exhibit Q.

Do jnti know that ■ccount?— It is an bc-
munt KtUeO ; it ii bd accuiipt paid lo Jjfierent
crnliton.

IVhj' did ytta gj^n it? — 1 Binned it, leCBUit
the muaiM Here rvBlly paid In ihe differeat
credilora. 1 il<i not know wbctJier the Tornier
Bccouiil was ri^lil.

Ur. John Steaart Mlint in, lo prodace the
tinuk* of the Council.

Ha*e ynii bmu|rht the hooka you were re-
quired lo lirinir? — [ hate no ■ulJiurily lo carrj
booki out of thp nSiL-e, or to produce them
without order. I ari|iiaiiiled (he hoard with
the Buli|iu-na: iliu lioaril desired me Id unjiiaint
the Court in llieir nanie, (hat \Wy concrive it
to be lidldc to many iniroDTeaieatei idiI ill
fniuenci'n to exbihit the proceeding* or tlie
Gount'il in au open cnurl ol' justice, especially
a> they may someliines cimlain secrpts of the
litmus: irn|i'irlancc lo the interest, aod e«eii to
the aatety iif thi^ slate, and as they cooFtrive
that if it II as ailowabte in one iuatiuce, it nould

[i all.

Cour

In this, as wetl as in every other io-
tlBDce, ite fhoulil ronsiili the ioterrst and coo-
Tcnience uf ibe Cnmpany as mncb as possible.
We are mil surprised tliat the s^UTernor (feoeral
mml cnuocii ahouhl be dcsiroiis to preTPiii their
books beinf; vxsujiiied, which miKht tend to
Ihe conseqiiencrs they mention : it « Quid be
highly inipmier that their hooks should be
wmiodIv subjected to curious and impertineiit
eyea ; but, at the same lime, it ia a mailer of
juitice, that if they contain evidence naaterial
M the parties in civil sui't, that they may have
an opportunity nf Brailini; themsdves nf it.
Humanity requires it should beproduced, when
in favour of a criminal, justice when igaiost
him. The pspers and records of all the public
compaoiea in bn^cland, of the Bank, South 8ca
Hoiiw.Bnd the Eiut India House, ireliaUe to be
called fiir, nhere jnaticeshallrequirecopiesof
the recorcis and proceeding, from the hi^ett
cnurl of judicature, iloita to the court of Pie-
Powder, and contioually ([iven in evidence.
When il is necessary they should be produced,
the Court will tnke care they are nut made an
itti|iroper use of. To wiih t)ie cnuncil lo be
put to llie least inconveoieDce poMiblr, we wish
they wiiuld considn- whelher ibev Ihiok the
■uconvenieuce of the producliiin of their books
md proceeihnjp, or the tcrantinif copies of such
parts as may be required to he ^ircn in evi-
dence, may he the least liable to objectiun.
The bnu|;iiiK the books and papers may subject
tbem to ihenszard of beinc lost, and may im-
pede the business. On the other lisnd, if cu-
pie< are (^nted, the Court cannot hold so
■trict a hand over impertinent curiosity as they
can, if the hooka and papers are produced in
theO|ieii court: ifcapies ure laken not relevant
to the cause, the Court would most cerluiuly
eensure the pa-ty oHeiiding therein ; but the
nii'Kiliief mi^ht be dime by bnving taken llie
VOL. XX.

A. D. 1775. [1058

copies. If they are produced in court, the
Court will oblige the party to inform the Court
of the matter proposed to be read, aud will not
allow it, excein they see that it is applicable lo
the cauae. 1 wiah ynu to inform the ^veruor
general and council nf what ig now laid, nnil
let tbem know that we wish to accoaitoadala
our practice as far bb possible to the convetii-
ence of the Eaat India Company ; we ivisU
likewise tliat jou woiilil remind the {^nvernor
general and council, hnw anxious we are tliat
they should tnake application to the Court tu
have such of their officers excused from serting
on juries, whose attendances in their several
office* cannot be dispensed with, without detri'
ment to the affairs of the Company. At the
time of the application to us frDiii the different
•ervaiits to be excused from serving on juries,
WB mentioned how iTDpoiuible il was for us lu
jmlge whom it miitht be DeerBaary to excuse,
and whom not. That we might err on the
right side, and not prrjuilice the affairs of the
Company, we were oblic;ed to he fibersl in aU
lowing tha excute* made ; but we bare stocs
fouml that aeveml of the |iersons excuricd have
since owned, that there was little or no eicuso
lor them, and tliat they did not ex|«ct it, hut
thought, when they saw others excused, Ihejr
might put in their claim : we cannot do this in
future, and tlieiefure are very solicitous tu ba
informed by the governor general and council,
what servants they wish to hate exempted
from serving on juries, that neither the hiisinesa
of the Court, uor that of the Company, may
suffer. The purpose fur which tlie books were
desired 10 be produced wu lo discrcilit Shaik
Ear Mahomed, who, as ibe counsel fur the
crown slated, had been i^ilty of perjury before
the cnuncil, aud hail been by them censured
for the same. The Court was ofopinion, that
the evidence was not admissible, il being a par-
ticular ^t, and not to general reputaliou ; aud
ihal no perjury* cuuld be committed, in aweat-

law, leeiDetfa to
. ^ who being law-

Futly required to depote ihe tmtli in any pro-
ceeding in a course of jnatiee, swears abMlntely

a matter of some coosrqnence to Ibe point

qoestion, whether he be believed or not.

" It teema to be clearly agreed, that all such
hise oaths, as are uken belbre thoie who
are any ways inlrusied with tha adminialraiion
of publiejuitice, in relation to any nnatler he-
lore them in rffbnie, are properly perjuries;
■nd it sccma In have been hiilden by some, that
all such fdltc 03lhs as are taken before per«ont
authorised by tbe king lo examine witnesiies in
relution to nny matter whatsoever, wherein hi^
honour or interest are conccrued, arc also
ltd penuries. And surely there cnii
icp of this ualiire which will not
justly dearrve a public proseeatiou, inasmuch
u if it should uuce prevail, it would moke it
impossible to have any law whatsoever Aia\y
exei'Utrd, and ex|Kiae the lives, liberties, and'
properties, of tbe mtnl innocent, lo dMiiwrer

3 Y

1059]

15 GEORGE IIL Tfial o/Maha Rajah Nundacmar, [1000

io^ before the i^overnor general and couucil,
who do uot constitute a court of record : if they
Were a court of record, the only proper evi-
dence would have been a record of the convic-
tion for the peijury ; the books were therefore
not desired to be produced.

[The Counsel for the Prisoner informed the
Court that the Prisoner had something to say .3

Court, By all means ; let us hear it : bat
would it not be more proper for you to ask him
what it is, that you may judge of what be has
to say ?

Counsel, I know it is not improper.

of the greatest villains. And therefore it
bath been holden, that not only such per-
sons are indictable for perjury, who take a
false oath in a court of record, upon an issue
therein joined, but also all those who forswear
themselves io a matter judicially depend-
ing before any court of equity, or spiritual
court, or any other lawful court, whether the
proceedings therein be of record or not, or whe-
ther they concern the interest of the king or
subject. And it is said to be no way material,
whether such false oath be taken in the face of
a court, or persons authorised by it to examine
« matter, the knowledge whereof is necessary
for the right determination of a cause ; and
therefore, that a false .oath before a sheriff,
upon a writ of enquiry of damages, is as much
punishable as if it were taken before the Court
on a trial of the cause.

** Alifo it seemetb, that any false oath is pu-
nishable, as peijunr, which tends to mislead
the Court in any of their proceedings relating
to a matter judicially before them, though it no
way affect the principal judgment which is to
be given in tlie cause ; as where a person who
■oiTers himself to be bail for another, knoniof^^ly
and wilfully swears that his substance is
greater than it is. Also it hath been resolv-
ed, That not only such oalhd as are taken
upon judicial proceedings, but also all such as
any way tend to abuse the administration of
justice, are properly peijuries; as where one
takes a false oath before a justice of peace, in
order to induce him to compel another to find
sureties for the peace, &c. or where a person
forsuearH himself before commissioners ap-
pointed by the king to enquire of the forfeitures
of his tenants estates, &cc, whereby he makes
them liable to be seized by exchequer process.
Also it hath been said, that a false oatu is pu-
nishuhlc as perjury, in some cases, wherein the
king's hononr or interest is concerned, though
it do not concern the administration of justice ;
as where one swears a false oath concerning
the |K)ssession of lands, before commissioners
appointed by the king to inquire of such per-
sons whose titles to the lands in their possession
are defective} and want the supply of the king's
patents.

** Jt seemeth clear, that no oath whatsoever
taken before persons actuig merely in a private
lapadty, or before those who tak« upon them

Court. What is it P- -A. The Haba Raiab
desires that Kissen Juan Doss may be asked
farther as to the Curra Nama.

Court, Has be any thing else to say? —
A, Nothing else.

Court, Do you Choose to ask the oaestioD t
or that Alaha Rajah should ask them himself f
You had better ask them.]

Kitsen Juan Dou examined.

Did you ever explain the Corra Nama yoa
spoke of to Mohun Persaod ?— Mohan Pler-
saud went in his palanouin to the boose of
Maha Rajah, and I followed after. I do not
know what conversation passed between Maha
Rajah and Mohun Persaud : Maha Rajah seat
for the Curra Nama to his own house : Mohoa
Persaud was present when I read it. Tbs
Curra Nama was afterwards shewn to FodnHh
hun Doss.

When you shewed the Curra Nama to Mo-
hun Persaud, what did he say ? — He ssid as-
tbing.

to administer oaths of a public nature, withosl
legal authority for their so doing, or befsrs
those who are legally authorised lo administer
some kinds of oaths, but not those which hap-
pen to be taken before them, or even M<on
those who take upon them to administer jostiei
by virtue of an authority seemingly coloarsbK
but in truth unwarranted and merely void, csa
ever amount to perjuries in the eye of the lav,
because they are of no manner of force, botars'
altogether idle.

** And from the same ground it seemetb abs
clearly to follow, That no false oath in an alE-
davit, made before iiersons falsely preteodiof
to be authorized by a court of justice to take
affidavits in relation to matters depending befbit
such court, can properly be called perjury, be>
cause no affidavit is any way reganJed, unlea
it be made before persons legally intrusted widi
a power to take it, as being both of suffideot
ability to ask all proper questions of the partf
who shall make such affidavit, and also of suck
integrity as not to suffer any thing to be in-
sertfd tiierein, to the iruth whereof the party
hath not sworn. And though it may be said^
that an affidavit taken before persous falsely
pretending to be commissioned for such purpose
by tlie courts of justice, doth directly tend to
impose upon such courts, and may poanUj
happen through surprize to be read, and mij
also in its own nature be altogether heinous, 11
if it had been made before persons regular!/
impowered to take it; yet inasmuch as it is of
itself of 00 manner of validity, and is no other-
wise regarded, than as it hath the appearaoot
of l>eing sworn before persons legally commio-
sioned, without which it would have no man*
ner of credit, it seemeth that offences of tbil
nature are most properly punished by severely
chastising those who usurp such an authority
of administering of oaths, without any kgil
warrant'' Hawkins's Pleas of the CrowSi
vol 1, p. 318, ct seq.

See, also, vol. 10, p. U7i.

10(5I]

at Calcutta^for Forgery.

A. D. 1775.

[lOCtt

Did lie make no objection ? — He did not say
m word of it in my hearing. He only said the
apace of six niontns is written.

Did Mohun Persaud see fioUakey Doss's
name written to it ? — He did.

Why did Mohun Persaud desire y oo to 8fo to
If aha Rajah ? — He desired me to go along
with him.

. Why ? — He did not tell me any thing par-
ticular. 1 explained to him the Nagree paper.

Croii'Examination,

What was the sum mentioned in the Cunra
Kama? — 1 saw a promise in fatour of the g»-
▼emor and. Mr. Pearson : likewise account of
a bond for jewels. There was some promise
in favour of Maha Rajah ; and lastly for
d5,000 rupees, on account of teeps. To the
article of the bond for jewels, no sum wan spe-
cified. There were sums specified to the Maha
Rajah and the governor ; but 1 do nut recollect
what they were.

Is the Curra Nama yon now mention the
•aroe you made up the books from,?— It was
the same, but I did not extract the account
Pudmehun Doss did.

^ Who produced the Curra Nama, Mohan Per-
aand, or Maha Rajah ?•— Maha R^ajah Kent for
it from his house. There was another Persian
letter.

Did you point out to Mohun Persaud tlie
name of Bollakey D«iss on that paper?— Mo*
Imn Persaud took the paper in bia own hand,
and read it.

Was this the first time you had seen the pa-
per?—Mohun Persaud took me to thehioase
Jpydmohun Doss shewed me before.

Why did not you mention this before?- —
Mohan Persaud forbid me to mention it : he
has given roe no victuals for these four years.

Did you then remember it ?— Mohun Per-
aatul had forbid me to tell.

As you were sworn to tell the whole trath,
and have mentioned this Curra Naroa to oAen,
why did you not mention this circumstance be-
fore P— If nobody asked me about it, why
•bould I tell the bad actions of Mohun Per-
saud?

Court, Because H is to save the life of an
iooocent person.— ^1. Now you ask me the
question, I recollect it ; I did not before.

Whom have you conversed with since last
night ?— I went down to examine the papers;
came here, went home, and did not see or con-
▼erte with any one kast night.

Have you spoke to any one to day?— 1
went to the bouse of Mr. Jarrett, to converse
with a Nagree Mohurer.

Were tli^e any other people at Mr. Jarrett's?
.—There were 10 or 12 people.

Did you converse with any of them? — I did
not : I conversed with my own man.

Did yoa sneak to your own man about the
Curra Nama r — I did not speak to any one. I
•poke to nobody but the Court.

Did not you send a written account to Maha
Rajah of every thing that you knew ?«--l did

write a Persian letter to Maha Rkjah : Maha
Rajah wrote a Persian letter to me. Having
read it, I wrote him an account of books, and
accounts, and a few words of circumstances that
bappeneil before Bollakey Doss's d^ath.

Did you in that paper relate this cireirai-
stance ?— -So far as related to Pudmohun Doss.
I did.

Did you write that paper for the purpose of
acouainting the Maha Rajah of all you knew ?
— 1 did inform him of all the circumstances,
but this.

Why did yon not inform him of this ?— Mo-
hun Persaud desired me to say the words were
erased and stratcbed out : and therefore 1 di$i
not say any thing about it.

W hen did Mohun Persaud desire yon to say
this ? — He told me a great while ago before
Ballgovin of all the circumstances.

Did you mention in your letter, that yoti
wrote to Maha Rajah, what Mohun Persaud
had said to you? — No.

' Why did you not ? can you tell any l^onest
reason ?•— Because I am a servant to Qupgahis-
sen, and Mohun Persaud is his attorney, and
Gungabissen lives with jVlohun Persaud.

Did you shew Mohun Persaud the letter you
wrote to Maha Rajah? — J did not: 1 only
wrote to Maha Rajaii to acquaint him with the
accounts.

Did you write nothing, hut concerning ac-
counts?— f must own the truth. 1 did not
write to Maha Rajah any thing aboat this rir-
eumstance : Mohua Persaud is a gt'eat man*;
he told me not.

Was not Maha Rajah a greater man than
Mohun Persaud ? — 1 was much al'raid of Mo-
hun Persaud.

Did you recollect this circumstance at the
lime you wrote this letter? — 1 did not.

if you had recollected it, would you have
wrote it? — 1 certainly should.

Then your being afraid of Mohun Persaud,
was aot the reason why you did not write it ?—
I am mudi afraid of Menun Persaud.

[Question repeated.] — 1 was afraid- of Mo»
bun Peraaud.

[Question again repeated.] 1 did oot recoU
leot it.

The being afraid of Mohon Persaud, and tha
not recollecting it, are two different reasona.
Both of them cannot be true : was it because
you were afraid of Mohua Persaud, or becausa
you did not recolhict it? — [No answer could
be procured.]

When did Mohun Persaud first bid you
mention it? — He took a written paper from
me : in this written paper, he madie me write
ten words I did not know, and leave out ten
words 1 did know.

Do you meim that Mohun Persaud occasion-
ed you to write to Maha Rajah ? — Mohun Per*
saud and 1 were on bad terms, when the afiair
was in the Adawlet. I gave evidence in favour
of Maha Rajah : the complaint was, that Maha
Rajah had taken money oppreshively. I ga? a
eviflenoe that ha did not.

106SJ

15 GEORGE III. Trial ofMaha Rajah Nundocamar, [1M4

Were jou at that time afraid of Mohun
Pervaud f— No: 1 was not afraid at that time.

Were you afraid of Mohun Persand, when
you said that the books of the army were sepa-
rated from Rollakey Dosa'a other papers bv
Ills order? — Mohun Peraaud forbid me to tell.
J am afraid of him.

When was it Mnhnn Persaud told yon not
to mention it ? — I believe a year and a half, or
two years affo. In the late prosecution Maha
Kajah told me, if I would write out a paper, I
pliould have my wages. 1 did write out a pa-
]ier : J do not know the particulars.

Dill that paper contain all you know of this
traiisoctiuii P — J wrote it out, and 1 copied it.

Did Mohun Persaud tell you what to write,
or did yon tell him P — Mohun Persaud wrote it
out first : he used to tell me, when I wrote it
out, he would pay nre the wBgeu ; it remained
10 or 14 days on the bed of Guogabissen.

Did Muhim Persaud, at any other time, except
the time last mentioned [i. e, about two years,
or a year and a half ago] desire you not to men-
tion it P — In the paper he {;a?e me to copy this
is not mentioned, which I obserTed could not
add any thing to it.

[Question repeated.] — No ; aboottwo years,
or two years and a half ago, he told me two or
three times, but nef er told me since ; 1 put him
in mind I knew another circumstance.

Did be ever mention it but these times ?— ^
No.

When did you receive the letter from Malia
Rajuh p— It is eiffht, ten, or 6fleen days since
1 got Maha Rajah's letter.

[Here the Evidence closed.]

Lord Chief Justice Impej/ :

The prisoner stands indicted for forging a
Persian bond, uith an intent to defraud Bol-
lakey D(i8s ; and also for publishing the same,
kn<iviing it to be forged. This offence is laid
in several manners, by different counts in the
indictment, sometimes calling it a * writing
ohiigHtory/ and sometimes a * promissory
note;' and it is laid to be with an intent to de-
franil ditrtTcnt people, differently interested.

1 sliall lay out of the case all those counts
touhich 1 think no evidence can be applied ;
and shall only mention those to which it may,
and shall point out those to which it most par-
ticnl:irly n|)plie8. I lay out of the case the
counis where the publications is said to be to
def'inuil Bo'.lukey Do^s, as the publication
mIdcIi is proved was after his death : as also
those w hich charrre it to be to defraud Piulmo-
liiin Doss and Ciun«rahissen as joint executors,
tlu'ri> lieiiii^^ 110 proof thai Pudmohun Doss ever
w:i«< r.n extcuior.

TiivMnily counts to whirli any evidence, in
my f>[>inion, can be applied, are the first, filUi,
iiii;th, and thirteenth, which charge this in-
fill ii'i.ent to be forged with intent to defraud
Iioi!aki-y Doss : the eighteenth, which charges
it to lie i\);-^ed wiUi intent to defraud (jimga-
bis^ea and iiingoo L ill, nephev^s and trustees

named in the will of Bollakey Dota: tbeaiM-
teenth, to which the evidence moit forcibly ap-
plies, for publishing the same knowiog it to be
forged, with intent to defraud GuDgaiimcB and
Hingoo Loll : the SOth and ilst, vbich cbarfo
the forgery and pubUcation to be with iatcm
to defraud Gungabiiseo, the survifiog ei*>
cutor.

There has been no et idence at what tiase
the instrument was actually forged ; and tbcrt-
fore it may be difficult for you to ascertain whe-
ther it was in the life of Bollakev Docs, aad
consequentiy whether to defraud Dim, or anch
persons as bad iniereit in his eatale after bii
decease.

The publication was clearly after his de-
cease ; and therefore, if you should tbiok tbs
prisoner guilty of that, you would not have ths
same difficulty as to whom it was to defraud,
as it must be his executors, or other persoas
who took benefit by his will. As the esMs
was distributed according to the divisioo of the
rupee, which is a custom in this country simihr
to that of the Romans dividing the as ; tbcrt
is no doubt It must have been to the JMwja-
dice of his nephews Oungabtssen and niagss

I will however, after I have ^ooe tbrosfk
the whole evidence, point out that part of il
which applies to the actual forgery, and tbet
what applies to the publication, knowing il la
be forged.

As the trial has now taken so many dayi^
and the evidence is so long, notwithstandm
you have given an attention that 1 have never
before seen in a jury through so long a trial;
it will be necessary , for the purpose of briugisf
it together, and to refresh your memories
as to those parts which parsed earl}' in tbs
trial, to recapitulate the whole of the evidence.

[Here the Chief Justice read over the %ibole
of the evidence, and then proceeded.]

By the laws of England, the counsel for
prisoners charged with fielony are not allowed
to observe on the evidence to the jury, but ars
to confine themselves to roatter»of law : but I
told them, that, if they would deliver to meaoy
observations they wished to be made to ihe
jury, I would submit them to you, and givt
them their full force ; by which means they
will have the same advantage as they wouM
have had in a civil case.

Mr. Farrer has delivered me the fV>lU>wing
observations, which I read to you in hi» o«o
words, and desire you to give them the full
weight,which, on consideration, you may tbiak
thf y deserve.

**It in no forgery on Bollakey Doss, becaose

* it is not proved tu have been forged in his lifil

* time.*

He is certainly right in the observation, that
there is no proof adduced of the time of the ac-
tual forgery.

* No forgery on the executors, because tbe

* prosecutor's evidence prove that they vers

* previously ioformed of thcibrgery, and vofan-

1065]

at CaladiOfJar Forgerg^

A. D. 1775.

[1066

* Urily paid the bond. Pudmohui 1>qm «•

* pressly knew it.'

Tliin will depend on the evidence, wbicb I
nliall observe u|K)n beretifter, whether Gnnira-
biwen was so intbrmed. I think there ii grant
reason to suspect that Pudmohun Doss was

frivy to the fraud, if any liraud has been. But
have laid those counit out of the case, wliicb
charge either the forgery, or the publication,
knowing of the foruery, with an intent lo de-
traod Pudmohun l>osa and Gungabiasen as
joint executors, because the prosecotors have
Ailed in this proof of Pudmohun Doaa's being
no executor. They proiluoed no probata to
Pudmohun Doss, and would have proved it by
his havinff signed an account delivered into the
Mayor's Court. This we did not think suffi-
cient to prove him executor : Mohun Persaud
by that meana might likewise have been
INTOved an executor ; for he has signed an ac-
count which was delivered in to that court.

* No forgery upon the trustees, or residuary
' legatees, because they had only a contingent

* interest at the time o4 the publication, aniToot

* a vested one. It was not an interest * debitum

* in pr«8enti, solvendum in futuro :' had they

* died before the contingency happened, the
' interest would not have gone to their repre-
' aentatives as such, and as claiming under
' them, but to tlie next of kin of Bollakey Doss ;

* therefore they could not be defrauded.'

This is a point of law, and I cannot help dif-
fering from Mr. Farrer in it; for in my opi-
nion, and in all our f>pinions, the interests of
the nephews and residuary legatees is a vested
interest, and would, whenever the money due
lo Bollakey Doss from the Company should be
paid, go to the representatives. The receipt of
that money is, 1 suppose, what is understood
by Mr. Farrer to be the contingency.

Thia objection seems to be made from mis-
stating an observation made early in the cause
by my brother Chambers, and which 1 was at
first struck with ; which was. That neither the
appointment of executors, or any part of the
will, was to take pUce till after the payment of
the debt from the Company ; that is, that Bol-
lakey Doss considered himself wortli nothing
bot that debt, aud meant only to make a will in
case that money should be recovered. But, on
looking into the will, I fioiutefl out to my bro-
ther Chambers that there were dispositions of
other monies ; aud we are both aatisfied that
the appointment of executors would have taken
place, and the will had sufhcient to operate
npon, though that money had not been jwid ;
aud that, if it was not, Bollakey Doss dul not
mean to die intestate. But, however, there is
evidence that it has been satistied by Com-
|inn v*s bonds.

Mr, Farrer has likewise given me these fur-
ther observations :

* Persian letters, sealed in the usual mode

* of the country, not allowed to he given in evi-

* doDce : bv our laws, lelters sealed in the

* usisal mode in EngUnd wookl.'

You cast your eyca on thoM Ictlen, and nb«

■inrad on the recencjr of tlie writing. You
thou|tbt them an imposition ; but, as they were
not given in evidence, I desired you would not
suffer it to nsake any impression on you. I
have no apprehensions tha laws of any country
would permit them to be given in evidence.
They were letten, enclosed in a cover, sesied
with the seal of Bollakey Doss ; but were se-
parated ftom the covers, which bad been open-
ed. Any wtitings might have been put iuto
those covers, lliere was no signature to the
letters. There was no attempt to jjrove that
the directkm of the covers were of the same
hand -writing with the letters tliemseUes, or
that they were the hand-writing of Bollakey
Doss, or of any of his writers. If this was ul-
lowed, any evidence might be fabricated, to
serve all purposes. Letters in Euglaod have
the signature of the writer, and his liaud-
writing may be proved : it is im|>ossible these
could be given in evidence.
'The witnesses are dead, the tranaaetion

* is stale, and long since known to the prose-

* cutor.'

These are objections of weight, which you,
gentlemen, ought carefully to attend to, when
you take the whole of the evidence into con-
sideration, for the purpose of furniiog the ver-
dict ; and i have no doubt you will attend to
them.

* No evidence of defendant's having forged

* Bollakey Doss's seal, for which he alone

* atands indicted.'

There is clearly no direct evidence of his
having actually forged the seal. But Mr.
Farrer is mistaken, wlien he says the prisoner
stands only indicted of forging the seal : he is
inaccurate in saying he atands indicted of forg-
ing the seal ; it is for forging the bond. But
he does not stand indicte*! of that only : he is
indicted for publishing it knowing it to be forg-
ed; and, as I shall l^reafler shew, it is to that
the evidence chiefly applies, nod to which I
must require your more immeiliate atteiiiion.

' The absurdity of the defendant's conliessing
' a circumstance, which would endanger his
' life, to people with whom he was not in terms
*of confldence — his refusing, three months

* after, to become security for Couiaul O'Deen
Mn his farm; a thing trifling in its nature,
' when contrasted with the consequences which
' might naturally be expected from a refusal—
' the small deg^ree of credit due to a conlessiou
' made only once, and noboily present but the
' party and the witness, which are tiic words of
' Comaul's evidence.'

It is highly proper yon should take these
circumstances into consideration ; you will
consider on what terms they were at the time of
these conversations. Confessions of thin nature
are undoubte«lly suspicious; and to uliich, ex-
cept there are mattera to corroiiorate them, you
should be very cautious' iu' giving too iniich
credit.

* Motbing any ways extraordinary in (.'n.
' maul's mentioning the circumstance of the

* defeodaDt's wifiaiMon; aa it ia well Luowa

1067]

15 GEORGE III. Trial o/Maha Rajah Nundocomar^

[1068

* that, in the most common occurrences, the

* natif es of this country fonn the most iniqoit-

* ous schemes, which are not brought to matu-

* ritj, or disclose<l to the public, for a much

* greater period of time than the present ; and

* that their truth and falsehood are so artfully

* intervroTen, that it is almost impossible to

* come at the truth.*

My residence in the country has been so short,
and my experience so little, that f can form no
judgment of the truth of this observation : it is
an appeal to the notoriety of the dispositions of
the natives. You have been resident long in
the country : some 1 see who were born here ;
you know how far it is true, therefore I leave
itentirely to you.

Mr. Brix has communicated to me the fol-
lowing observations :

* Improbability of the bond's being forcfed,

* from its being conditional only ; for which

* there •could be no necessity if it was forged,

* as it rendered the obligation less strong, with-

< out any apparent reason.'

It certainly would have been as easy to have
forged an absolute bond. Hut there is no evi-
dence when the bond was forged, if it was
forged : it might have been after the payment
of the debt diie to Bollakey Doss : it might be
to give an air of probability to it. But this is
matter proper for you to judge upon.

* From the circumstance mentioned therein

* of the jewels being robbeil, as that very cir-

< cumstance lessens the value of the obligation,
' it might entitle tlie deceased or his rcpresen-

* tatives to relief in equity.'

This circumstance of mentioning the jewels
is undoubtedly one that makes the transaction
very suspicious, as there is no evidence g^ven
of any loss of jewels ; and indeed the evi-
dence that has been produced on that head goes
a g^eat way to prove that no such je\i'els had
ever been lost. It is ingenious to turn this to
the advantage of the prisoner. You will de-
termine whether it can be so applied.

These are the observations made by the pri-
soner's counsel : you will consider *them, to-
gether with the observations I have submitted
to you upon them.

1 shall now make some few observations on
the evidence, both on the part of the crown
and the prlNoner ; desiriiii*', as 1 have frequent-
ly during the course of the trial, that you wilt
not sufl'er your judgments to be biassed, or the
prisoner to be any way prejudiced, from any
thing that has past, nur by any matter what-
soever, uliich has not been given in evidence.

Tlie evidence on the part of the ci-own to
support the actual forgery, is that of Mohun
I'ersaud, ulio says, that Maha Hnjah Nuudo-
(M)mar declared, that he had prepared, or drawn
out three papers, tiie amount of one of which
was 48,021 rupees, which is the amount of the
present bond, and is applied as a confession of
the actual foiigioff ; bat as the confession may
bear m diffcfent mteniKlAtiott. tiwrt bciii|r no

tftlM.tfWfl

be wrote, drawing or ceasing to be drawn, it
may mean, that he caused Bollakey Doss td
draw or prepare the bond, and therefore I think
the first would be a hard and rather m forced
construction of his words ; and indeed he did
not actually specify this bond. Comaul O Decs
also gives evidence that will apply to tlie fbr«
gery. Maha Rajah Nundecomar told him.
That he had himself fixed Comaul O Deen's
seal to the bond ; and he proves m requisitiw
from Maha Rajah Nnndocomar, to give evi-
dence. That be was a witness to the bond, wk
makes him promises if he will. This b Ibe
evidence of the forgery ; but I tbiok it will W
more necessary to attend to the evidence is
support of those counts which I have said Ibe
evidence may be applied to, and which chsrfs
the publication with an intent to defraud.

The evidence which appliee to the actsil
forgery, applies likewise to tlie knowledge of
its being iorged. ftlohun Persaud proves the
bond produced by Maha Rajah Nuodoooaiar.
A receipt of Maha Rajah Nnndocomar for ibt
Company's bonds, paid in satisfaciioo of iha
bond in question, and the actual satisfactkm R-
ceived by Maha Rajah Nundoooooar.

Two witnesses depose. That the name ps^
porting to be in the hand-writipg of SllaWr,
IS notof his hand- writing. Sabboot PoUack
swears positively to this : be says. He was vcH
acquainted with his writing; and speaks is ti
the usual manner of his attesting which hi
says, is different to that on this paper.

'Rajah Nobkissen, on the paper being sbovi
him, swore positively, that it was not the bas^
writing of Sillabut ; but afterwards reirscid
the positiveness of his opinion : but the circsn-
stance of his immediate fixing on the thns
papers, which were before proved to be of Srf-
labut's writing, is a stronger proof of the kaov*
ledge of his hand-writing, tiian auy poautite
oath.

I must again caution you against receiiis^
any impression unfavourable to the prisoofr,
from the hesitation and doubts or exclainatioi*
of this witness, or from any other circumstaoca
except what he actually <leposeil to.

Both these last witnesses agree, that tbr
hand to this bond is better than SSeeiiabut's haw!.

Other circumstances are adduced to draw
an imputation on this business. An accowt
subsequent to the date of the bond, which bis
1772, is producetl to show, that Bollakey Iksi
was at that time iodehte4i to Maha Rajah N«ib-
docomar only in the sum of 10,000 rupee;
but I think no great stress can be laid on thil*
as it contains a reference to such other debts n
may Bp|>ear by his hooks.

The Counsel for the Crown have provri,
that a draught for a large sum of money esi
paid at Benares, about the time of the besJ
given, on the credit of Bollakey Doss, in ftftr
of lord Clive. This was adduced for the par-
{Kjee of showing' Bollakey Doss to be at that
time in good circumstaocesy and to infer As*
ibemst an improbability of bis entering into ihii
^ "^ : but I think it proves no sucb "

K)69]

at CalcuUa,Jbr Forgtry,

A. D. 1775.

[1070

much lardfer sum would no doubt hafe been
|iaid uii lord Clivers credit alone ; and it in cer-
tain, ihat Bollakey Doss was at that time a
debtor to Malia Ilajab N'tindooomar.

There is another circuuutlance ; that Bolla-
key Do&s had never mentioned either the de-
pobit (d' the jewels, or the loss of them ; and
that there is no entry of it in his books.

Comaul O Deen produced a paper with the
impression of his own f>eal, which he swears to
be in the possession of Maha Uajab Nundoco-
roar : yon before said, you thou^fht it to be the
same with that to the bond ; you will accu-
rately examine it; I have not; I am told,
Ibere is a flaw in both the impressions.

Comaul O Dcen accounts for his seal beinflf
in the possession of Maha itajah Nundocomar,
fMid swears he has not receiveu it back : his evi>
dence is sapfKirtrd by Coja Petruse, whose
character you all know, and Moonshy Sudder
O Deen, to whom he repeated the conversa-
tions with Maha lUjah Nundocomar, wbeo
they had recently past ; you know the prac-
tices of the natives, and whether it is probable,
as the counsel for the prisoner has sujfg^ested,
chat this is a deep-laid scene of villainy.

The character of Comaul O Deen was en-
quired into from Coja Petruse, and you have
beard his answer.

Subornation of perjury was endeavoured to
be iixed on him by the evidence of Hussein
Alii ; but as to Cawda Newas, nothin^j^ was
proved: as to the seal -cutter, his conversa'tion
with him seems rather to streogtheo than im-
]»each his credit.

This bond was found cancelled amoni? the
papers delivered into the Mayor's court, as be-
longinjif to the estate of Bollakey Doss ; but
the papers of Pudmohun Doss and Bollakey
D'iss were mixc<l.

This is the substance of the evidence for the
crown ; and no doubt, if the witoc^sses are be-
lieved, whatsoever you may think of the for-
ll^ery, tliere is evidence of publication, with
luiowled{(e of forgery.

On the other hand, if you believe the wit-
nesses for the prisoner, a most complete answer
is f^iven to the charf^e.

There are no less than four witnesses present
at the execution of the bond by Bollakey Doss,
three of whom had been privy to a conversation
at Maha llajah Nuodocomar's, when the con-
sideration of the bond was acknowledged by
Bollakey Doss : the same persons prove the
attestation of the bond by the three witnesses
tberetOy who are all dead.

The brotlier of Matheb Roy is produced,
who says, that Matheb Hoy was well known to
fliurea Mull and Cossinaut : Huzree Mull aud
CotsiBnat did know a Matheb Roy ; but it is
olcftr, from their description of the person, that
it u not tiM brother of the witness at the bar.
Bovrereri Cossinaut gave an account of the
ftmilr of the man he knew, whose father
990 fiuDKOO Loll ; but said, there was another
800900 LoU. It seems extraordinary that
^mf flhoald bo two Bnogoo Lolls, two SAb«b

Roys, and two Matheb Roys, in two different
families : however, there is no doubt of the ex-
istence of two Bung(H> Lolls and two 8aheb
Rovs; the improbability then decreases, and
both Tage Roy and lioopnerain swear to the
existence of the other Matheb Roy. It is ex-
traordinary, however, that this man, who is de-
scribed by his brother to be a poor man, and
servant to a prisoner in the gaol, and was not
known to Cosainant or Huzree Mull, should be
described by the counsel for the prisoner as a
man of note and family, and as being acquainted
with Cossinaut and Uuzreo Mull.

In contradiction to what Commaul ODeen
had said, the defence iotrmluces another Co-
maul ; and all the four witnesses swear posi-
tively to his attesting the bond. He is proved
by two witnesses to In: dead; one Joy deb
Chowbee saw a man going to be buried, and
was told it was Comaul.

The other, Sheekear Mahomed, actually at-
tended his funeral.

Comaul O Deen swears positively It is his
seal, and these witnesses swear to the attesta-
tion by another* Contaul. Joydeb Chowbeo
mentions a circumstance by which he knew it
to be the funeral of Comaul : he asked. Whe-
ther it was a funeral of a Bramin or a Mussul-
man ? It seems, the mode of carrying out Mus-
sulmen and Bramins differ. You must judge
from his evidence, whether be must not have
known whether it was a Mussulman or Bra-
min, without empiiry ; indeed he has said,
that he did ; and the observation was so strong,
that he after positively denies he ever said he
made such enquiry.

As Comaul is said to have died in the house
of Maha Rajah Nundocomar, it seems extraor-
dinary, that no one but Sheekear Mahomed is
brought to prove his actual death ; it must have
been easy to have brought many persons of
Maha Rajah Nundocomar's family, especially
as he mentions five persons by name that at-
tended his funeral, besides cuoleys; three in-
deed he has buried since, but there. are two
still alive. This must have been known to he very
material, for this is not the first time timt Co-
maul O Deeu has given evidence concerning
his seal.

It is admitted on both sides, that 8eelabut u
dead. It is remarkable, that no account what-
soever is given of the Mour «»ho wrote th<
bond: he would have been a material witnct^
there is no proof whose writing ii u : it is prar
ed, that liollakey Doss had at ibai !i«e a write
whose name was Ualkissen, who is tit^A : ih«r
is no evidence that it wa% of hit .^ks^l ; be v«
I think, kuown to one of the v£^«»e» if» i:.
execution of the bond.

A witness says, thai S^«'«v:t «a« 4 P*--.;i
writer as welt as Vak«ci 10 Y^.x .kk«> D --r? % -
Kissen Juan Dais seraif *.* vj^^-j. : .•^;.
asked. What Pers^ m-y^ l,v :^4
at that tinae? b* Ks:s««r^ - 11-. :l:
Balkiasea, mmk Sbc:.ui:-: l:*. \:»ii^^
sian.*' It is urn. ssi.a *\. u>
if

1071] 15 GEORGE III. Trid ofMaha Rnjah Nundocomar, [IQTf

sioD had Bollakey Doss to call for another
writer ?

There is no evidence of any particulars bein^
nieotioneil to the writer uho made out the bond,
thouf^h it contains very special matter, except
by one witness : all agrree that no directions
%vere iri^en in the room liefore the people came
from Maha llajah Nmidocomar to Bollakey
]>08s'8; and all the witnesses, except one, deny
any specific directions beinjif ifiveo af\er. It is
|K>s8ihle, he nii^ht have spoken to the Mour
before his comings into the room, which the
oilicr witnesses at this distance of time might
have fbrjii^ot.

Though there are some variations in their
evidence at the time of the execution, that is
not at all extraordinary ; what is most striking
is, the very accurate memories which they pre-
serve a.4 to some circumstances, and their total
furfirelfnlness as to others.

The most remarkable instance of their me-
mory is the knowledge of the seals, w h icli some of
them swear to positively, only from having seen
them three or four times on the fingers of the
owners, from which (though the seals must be
reversed when applied to paper, and though
some of them Jo not understand Persian, and
consequently not the characters engraved on
the seal) they swear positively to their being
able to know the impressions ; and it is troe,
for they do point out to whom the impression
of each fiarticular seal on the bond does belong.
Kissen Juan Doss, who must have seen Bolla-
key Doss's seal oftener than any of the wit-
nesses, does not take upon him to remember the
impression ; and on being told the other wit-
nesses did, he said, they had excellent memo-
ries ; he was not blesseil with such.

They arc liketvise uniformly accurate in
describinir the order in which the witness-^s
sealed and si^rned.

I shall make no observation on the variances
of the witnesses to the execution y for, except
in two instances, one of the witnesses, who re-
membered the sum in the bond, from ita being
explained in a bn!;^uacre he did not understand,
the other, Slieekear Mahomed, is the only wit-
ness that spoke with precision as to the sum.
You lu'ani hitn deliver his evidence, and will
form your own judgment on that and on his
whole evidence, in which he affirms and denies
the same thin^ in the same breath.

As to the other, it was susrgested, that the
same words expressed the same sums in 3Ioors
and Persian, which drew on an cnr|uiry ; and
we had the Persian and Moor words for the
sums mentioned delivered in evidence ; you
will see how far you think they agree or dis-
agree.

Nor shall I observe on the manner in which
the witnesses on either side gave their testi-
mony. You saw and remarked them. The
jury having the opportunity to make their ob-
servations on the conduct of the witnesses, and
of hearing the questions ptit as circumstances
■rise, ia the great part of the benefit of a vivd
9oce examination.

The defence does not attempt to prove either
the deposit or the loss of jewels. And, indeed,
Kissen Juan Doss, on whose evidence I shall
hereafter observe, says, « That he never heard
* of such a loss ; had it happened, be most
' have beard it ; and a thouftand people most
\ have known it.' He speaks of the loss of
jewels to a trifling Amount, but those lielooged
to anotlier person. This^ as I said before, is a
suspicious circumstance. But if the jewdi
were actually deposited, of which there is no
evidence, except what 1 am going to take no-
tice of, the Korsa Nama : though the? were
not lost, Bollakey Doss mijght have tol«f Maha
Rajah Nundocoiiiar that they were ; and the
Maha Rajah might give credit to Bullakcy
Docs ; or might chuae rather to take a bond
than enquire further into the matter. It migkt
possibly have been a fraud on Maha Rajik
Nundocomar.

Meer Assud's evidence may l>e very nai^
rial. He produces a paper, purportioff to be i
receipt given by Bollakey Dosa to him, Ibr
valuable effects of Cosaim AIII, delivered byths
witness to Bollakey Doss, whicli hail the serf
of Bollskey Doss to it. The impression ysi
will examine ; yon vrill fiod it to lie the same
as ia on the bond. This was for the pnrp«aB
of proving the correspondence of the imuiiwiw
of the seal on this receipt, with the seal on the
bond ; and by that means to prove, that the
seal to the bond was the hieotical seal of Bsl-
lakey Doss, not one that was forged. Tbii
transaction was said by the witness to be wbea
Bollakey Doss was with the army at Durgbotty.
Jt seems clear beyond doubt, from the date sf
the receipt, from the place the army was then
in, and from the circumstances that both Cos-
sim Alii and Bollakey Doas were in at the tinoe
the receipt bears date, that the receipt conM
not have been given by Bollakey Doss, sihI
that the whole is a fiction.

A very striking observation arises from this :
it may account for the witnesses remembering
the seals so accurately. Tasre Roy says, He
is in possession of Alatheb Roy's seal. Tbe
seal of Comaul O Deen is proved to have been
in the possession of Maha Uojah Nundocomar;
and the person who fabricated this receipt
must have had that seal which made the im-
pression on the bond and the receipt. If tbe
witnesses by any means have seen those seals,
it is no longer surprising that they should be
well acquainted with the impressions. This ii
a strong observation ; but it is but an observa-
tion ; 1 would have you consider it deliberatdv
and maturely before you adopt it.

Kissen Juan Doss delivered all his evidence,
till this morning, with such simplicity, airf
with such an air of candour and truth, that I
gave full assent to every thing he said ; and I
am extremely chagrined that there has arises
any cause to suspect any part of his evidence*
He mentioned a paper, which he calls a Kdn>
Nama, in which the whole of this transaetiM
was wrote, and which was acknowledged asd
signed by Bollakey Doss. Thovgh the ent^

1073]

«# CakMayJhr Forgetg*

A. D. 1775-

[1074

iMrfe in the iMolfr after the ^th of Bollakey
l>0Wy by order of Pudnobua-Dois, and p%kf-
portiiifir tf) be in the lifetime of Bollakey Dota,
earned- anirka of suapicioB with it ) yet) I own,
Kiwen Juaa Doss bad ao completely gained
■ay oanfiilenee, tliat 1 gare implicit credit to
him. Many attempt! were made to eatablisb
it ID ef ideoce^ wbicb failed of lefpil proof; but
as 1 thoiighi ao well of Kiaseo Juan Doaa, and
aait would have been exiremely hard, if auch
a paper hart- existed, that the prianner abould
be deprived of the l>eneiit of it, I said (having
first asked the con^eot of ray brethren,) that,
thoHffb it was not strictly eridence, 1 would
leave it tu you to give such weight to it aa you
thoiiirbt it tleserv^. I still leave it to you ;
and if you believe that such a paper ever
dieted, it would be the highest injustice not to
Mqoit the prisoner.

Attempts were maile to bring tliia to the
knonleilge of Mohun Persaud ; and if it did
exist,' and was in the knowledf^e of Mohun Per-
aaiid, this prosecution is most horrid and diabo-
fieal. Mohun Persaud is guilty of a crime, in
Biy apprehension, of a nature more horrid than
nurder.

But, I own, what passed after the counael
fot the prisoner had closed his evidence, has
very much weakened the confidence I had in
&iaaen Juan Doss. The counsel did 'not desire
that he should be called, aasigning aa is usual
a^ their reason, that they had forgot to exa-
mine to any particular point which waa con-
tajned in their instructions ; but we are inform-
ed that the Maha Kajah had something to aay.
All that he says is. That be desirea Kis-*
ten Joan Doss may be further interrogated
■a to the ILnrsa Mama. The question then is
■BOiediately put to him, Whether he ever ex-
phuoed the kursa Nama to Mohun Persaud P
and then he giveatbe account of Mohun Per-
saud's having aeen it at Maha Rajah Nundo-
•onsar's.

When he is examined to the reason of hili
B«t having told it before, all that simplicity, all
that air of truth and candour, which we had
ftiaarked in him, instantly vanished ; his looks
were caat down, his tongue Imultered, he pre-
varieatea, he contradicta himself, ha did not
•eem the aame man. ' He did net tell, beeauae

* in was not asked.* * He did not roemion it

* to Maha Rajah Nundocomar in hia letter,

* haeanse he waa afraid of Moiiun Peraauck'
' He did not mention, because be did net reo>l-

* lect it.' * He did not deliver it iu evidence,
'•keeauae afraid of Mohun l^ersaud.' Mohun
Persaufl is a great man. He waa not afraid to
write the fetter. He did not ahew the letter to
Mohun Peraaud : wliy should' he be afraid to
iaaert this circumstance ? If he now atanda in
to much ffiear of Mohan Persaodl as not to men-
tion tbia in hie evidence, was he so mnch afraid
«f him when he voluntarily and directly con-
fronted him as to the army books P

All this fear ariaes from no recent threat: it
in m coanpqucnce of a convcmtioB at the dio-
tBBOO of soase yenvi;

VOL. XX.

ft is for jfon to. determine how far he really
stands in awe of Moliun Persaud, and wliat the
efieota of that intiAiidation was when he deli-
vered hia evidence.

It is strange, as the witness was so often
examined, and so particularly to this Kursa
Nama, that Maba Rajah Nundocomar never
before suggested this matter to his counsel.
. If this latter part of Rissen Juan's evidence
is true, he must be either guilty of perjury or
very strong prevarication in hIa former evi*
dence. Being asked as to Mohun Persaud and
Gungabisfieii's knowledge of the entry made
from the Kursa Name ? He aays, * 1 cannot

* say that Muhuo Persaud and* GungalNKaen

* knew of it at the time of the entry ; they

* knew of it afVerwardit. Mow can I tell when

* they knew of it first P They must have known
' it from the papers in tlie Dewaimy Audaulet ;
' thev were all called for there. 1 should tell^
' if 1 knew Giingabis^en or Mohun Peraaud

* knew^ of the entry.'

He muat have known it was more material
to prove that they knew of the Kursa Nama
itself, in which the particulars of the account
which formed the sum in the entry were wrote,
and which Bollakey Doss had signed. But ho

Presently afterwards |MMitively says, That
lohun Persand and Gungabisaen were not
aceuainted with tl>e accounta.

In another part of his eridence, he says to
Pudmobun Doss, * Miike my miud easy about

* the bond we are now paying,' or (for there
was a doubt in the interpretation) * whwh wo

* have paid.'

The time that this explanation was made at
Maha Rajah Nundoconiar's is not ascertained ;
but it must have been before the payment of
the bond ; fi>r afterwards it could be of no use.
If then Kissen Juan Doss ha«l before seen tbia
Kuraa Nama, and explained it to Mohun Per-
saud, why did he demand that his mind should
be made easy about the bond P and how was it
made easy, only by tiie production of a papec
that be Imd seen before.

f am much hurt, to be obliged to mako
theae observations on the evidence of a man
that I entertained so good an opinion of. I
muat desire you to recoils, with regard ttf
this observation, and every one that 1 submit
to you, that yon are to make no farther nae of
them, than as they coincide- with yoor opinions
and observations ; and when they do not, you
should reject them ; for it ia you, not I, thai
are to decide upon the evidence.

Attempts were made, by meain of Monolnitt
and other witnesses, to impeach Mchnn Per*
saud, by particular facts, of attempts to suborn,
and by general character. Yon must judge
how rar they have succeeded. Thev totally
failed in the same attempts, as to cJommaiu
(yDien.

It is to be observeil, likewise, that no person
hat been railed to impeach the witnessea
bnraght by the defendant.

There are many observations to be Oiade \tt
favour of the prisoner ; and 1 am sure your

3Z

1075]

15 GEORGE m. Trial ofMaha Plafak Nmicemar. [KM

homaiiity will prompt you to eoforce thorn, at
fir as they will bear.

I before said, that the defence, if beliered,
was a fttft refdtatioD of the charge ; it is not
only so, bnt It mast fix an indelible mark of in-
famy on the prosecutor.

There are four positi? e witnesses of the ao-
toal execution of the bond by Bollakey Doss.

In opposition to Commaul's e?ideuce, there
are as many to prove, that the witness attesting
was another Commaul.

Matheb Roy was not mentioned by the evi-
dence for the crown. Four witnesses saw
him attest it ; and two other witnesses, one of
them bis brother, likewise pro?e that there was
•ach a person.

In opposition to Rajah Nobkissen and Pat*
lock, who swear the nameSillabot tothe bond,
is not of Sillabut's hand-writing ; four wit-
nesses swear positi? ely to the having seen him
write it.

Much depends in this prosecution on the
evidence of Mohun Persaud : yon must judge
how fiir his credit has been snaken : most of
▼on know him : you must determine how far
le deserves credit; and how probable it is,
that be would, through malice, or any other
corrupt motive, accuse an innocent person of
a capital crime. If you think him capable of
it, you sbould not give the least attentiovto
liis evidence. He swore nositively to the bond
produced by Maha Rijan Nundocomar, and
ihr which the Company's bonds were ^ven,
being the same bond that was produced m evi-
dence ; he said, he knew it from circumstances,
but did not explain what those circumstances
were; this 1 mention as going to his credit
only ; for the whole defence proceeds on iden*
tifying this bond, and proving it a true one.

You will judge how far he is contradicted
by Kissen Juan Doss, as to the army books ;
^d which of the two are to be believed.

An imputation was attempted to be thrown
on Mohun Persaud, for preventing Guiiga
Visier from attending, who was said to be able
and willing to appear as a witness : but that
lias been cleared up, to the full satisfaction of
us ; and, I do not doubt, to your satisfaction
likewise. He could not be called by the pro-
aecutor, on account of bis interest ; and no
prejudice should accrue to the prisoner, for
dot calling him, for the same reason.

The counsel for the prisoner have urged the
liardsbip of this prosecution being brought at
this distance of time. You have heard when
Mohun Persaud first suspected the forgery ;
and when, by Commaul's declaratiun, he bad
reason to be confirmed in the suspicion.

You have heard, when the papers were de-
livered out of the court ; if there has been any
desired delay, and jou think Mohun Persaud
bad it in his power to carry on an effectual pro-
■ecntion before be has ; it is a great hardship
to Maha Rajah Nundocomar, especially as the
witnesses to the bond are all dead ; and you i
ought to consider this among the other cir- I
aanataooei wUch ace ia his favour. Thoogb, J

to be sure, this hardship is anieh dfaBialshrf^
as there were so many witnesses still alivt^
who were present at the exeeatioD of it,

There are two pieces of writtffo enksam
relied on by the prisoner : ooe, the entry ki
the book from the Kurra Nanaa, on aeeooBt ef
the agreement of the snroa ; and yon frill find
that the sums sud by Kisaea Joaa Deal la
be contained in the Knrra Nana ; vis.

Durbar expences .... 0,000 B?

Bond Batta and premium • <M^6S0 7

do amount to the sum of

75,630 r

which is the sum in the entry.

The other is the account delivond. by Mai
hun Persaud and Pudmohun Does, suboamMsl
to the account delivered in by Podaoiohun Des^
in which Pudmohun Doss had taken credk ftr
this sum; and the subsequent aooonnt likewin
contains it.

I do not think much can be drawn ftom tUi^
for the anms had, as Mohun Peraaod Mfk
been paid, and therefore they certainly woalf
take credit for them, to prevent ibeir boaf
charged with them ; this tney would do, wsis
the monies properly or improperly paid.

Tbore is certainly great improMiilily that a
man of Maha Rajah Nundooonmr'a raak aad
fortune should be guilty of so mean an ofleaes
for so small a sum of money.

It is more improbable, as he is proved Is
have patronised and behaved with great kind"
ness to Bollakey Doss in his lile-tinie, that bs
should immediately afker bis deceaaa pluaicr
the widow and relations of his friend.

There does likewise appear to haTO beca a
suit in the Audaulet, which must have bss a
civil suit ; but it does not indeed appear tbit
Mohun Persand was a party ; and, mdeed, for
what reason I know not, neither side barf
thought fit to produce the proceedings.

I nave made such observations on the en*
dence as the bulk of it, and the few minutfi
I had to recollect myself, would allow me is
make.

You will consider the whole with that caa-
dour, impartiality, and attention, which bsi
been so visible in every one of you during tfas
many days you have sat on this cause.

You will consider on which side the weiahl
of evidence lies; always remembering, tail
in criminal, and more especially in espial
cases, yon must not weigh the evideoca is
golden scales ; there ought to be a great di^
ference of weight in the opposite scale bdias
you find the pnsoner guilty. In cases of pi^
perty, the stake on each aide is equal, aad 4l
least preponderance of evidence ought to toil
the scale ; but in a capital case, as there fl0
be nothing of equal value to life, yon abooid ki
thoroughly convinced, that there does not iw
main a possibility of innocence before yoa giia
your verdict against the prisoner.

The nature of the defence in this ease b
such, that, if it is not believed, it most pisM
fatal W (he party ; for if yo« do wA balim H

7]

Trial ^Jotfph Fowke and

to fix iHMJur; anrl subiTnatiau oF perjury on
the nrosci-uloT Bn<l his niinesses.

You will sgiiiD tnil (ii(iin iransicler Ihe cha-
rMder of the pnMM^iilor siiil his witnesses, the
Pittance of the prDsecminn trnm (be time llie
afleoev ii EUppnwd to be cominilted. Ilie proof
•□d Dilure ot' ihe contessinng said to be raade
by the prisoner, hii rank snil fortune. These
■re all reiaons In prevent your K'n'mg a hasty
knd prccipiiala belief lq tht; cliarge hrnu^hl
^faiiut him ; but, if you beliure the tacts swum
■gsinst liim to be true, they cauDOt alter the

olhfTt. A. D. 1775. [1078

of tlie faclji theniselvea. Your teuK of
, nod your onn fvellD^i, will not allow
ynu to conricl the {insoner. unlets your cnn-
Bciencei an fully saiisfieil beyond all iloul>t of
lii»B'uilt. If they are not, you mil brir- =-

luey are noi, you niii Drinij in
rlilch, from the diciates of hu*
will be incliued to ^ite; but.

' consideralion, 1

manity, j — .. ^.-~, ^u.

iliniilJ your CODKiencei be Iborouehly con
riDced of bis beinp guilty, ■ ■ -

■iln sure, wilt prevail on you iioi i

diet according to jou maths.

The Jury retired for about at
trough t in their verdict, (juilty.

557. The Trial of Joseph Fowke, Francis Fowke, Maha Rajah
NoNDocoMAR, and Roy Rada Churn," for a Conspiracy
against Warren Hastings, esq. Governor General of the Pre-
sidency of Fort WiUiam in Bengal. At Calcutta or Fort Wil-
liam, in Bengal aforesaid : 15 Geoucje III. a. d. I 775.
[Snbjoined to the Trial of Nundocomar, for Forgery. Pub-
lished by Authority of the Supreme Court of Judicature ia
Bengal. London : Printed for T. Cadell in the Straud, 1 776.]

Hjf wai/ «/ Jnlroduction to Ihe Report nf
the TriaU nj Joseph Fowie and others,
was published the Jblluviing Account of
certain Preliminary Measuret. Jt it in
Hte^not tinintereatlng,

D EPOBITIONS

ACONSl'lRACV Au.iNST WARHEN

HASTINGS. Eso.

Calcult/i, ApriliO, 1773,

On the l!Hb insunl, about nine in the morn
Inf, Coinaul O Deen Alii Cawo, the furmer of
lletlgelM, caraetu Mr. Hastini^, with a com-
pbikl BgBioft Mr. Joseph Fowke, for having
asUr1«d from hiui, by violence, accusatioLis
KgaHUt Mr. Hastings anil other penuos. The

rrtjoulara of bi« «tnry will be related at large
bi* deposition. He said, be bad that iuHtKiit
nwde bit escape from the lianita of Fovrke and
Niuulocuinar. His jamui* was torn, bii face
ad he was, or appeared to bv, out of
Mr. UaUiogs told him, he cnuhl
d bim no redreu ; and referred him to the
iTJuBitee. He went. The Chief Justice
_ J brard tite coniplaiDi, lummoned the
' otbar judge* lo meet hini in the etening; and

* 8m Oi« prcoading Case.

late that night Air. Hastings received tbe fol-
lowing Letter from them :

*' Tbe Hon. Warren HESting!!, esq.

" Sir; a charge hariogbeen exhibited, upoa
oalb, before as, against Joseph and Francia
Powke, Maha Ka_iah Nundocomar, and Rada
Churn, for a conspiracy against you and others;
we have sutnrooued the parties to appear to-
raotTOw, at 10 o'clock in the forenoon, at Iha
bouse of sir Elijah Impey, where we must re-
(|uire your attendance, — \Ve are, Sir, your mast
oliedient bumble servants, E. Impey, Robsst
Chahders, S, C. Lemaistbc, Joiln Uvoc."

*' Culcuttu, April 19, 1775."

The same inliinatioii was aenl, in the sam«
forin, to Mr. Barwvll. Mr. Vansittart, Maha
Haiab, ttsjebultub, andCanloo Uaboo.

Tbe uexi morning Mr. Hawingt attended, at
did the other persous named in the letter.

The persons examined as evidence ou tbe
charge, were Comaul O Diea, Ins Moonaliy,
Malbew Miranda and Timothy Pcreira, two
Kritrrt of Mr. Fowke, Abermanuu u Genloo,
and a Mooniby, both aervautt of Mr. Fuwke,
and Yar Mahomed, d well-known bervaot dJ'
Nundocomar. The enamioalion lasted tiU
eleven at oigbt.

It will be nt-crsaary, before we proceed, to
remind tlie reader of a represeatalion which
ABt made to Sir. Uailings by Cumaid O Ueen,
of Ihe like attempt made by mr. Fowke in Ue-
ceiubrr lam, to extort accuaations from bim ;
ami which waa laid before ibo board on lb*
i;jU) of tbat noulh. In tbe course of the lUt

15 GEORGE in. Trial qfJotejA Fmke amdiMertt

1079J

examiDatton it appeared, that Mr. Fowke bail
WDt to the Board of Revenue a letter, dated the
18th of April, accomiKinied'by a paper, beariDif
the aenl of Comaul O Deen, and containing a
formal recantation of his former repreaenta-
tjou. Mr. Hastings had not yet seen these
papei-s.

The following are copies of the Depositions
B hich were taken before the Judges.

Deposition of Comaul O Deen Alli Cawn,

upon oath.

" Havinjv* a demand on tiie Dewan of the
Calcutta district, for the sum of 26,000 rupees,
on account of the advances made on the colla-
ries in the liedj^elec districts, which he had not
paid to me ; to frighten him 1 went to Ma ha
Rajah Nundocomar, and gave him three ar-
sees ; two against the said Dewan, and the
third against Mr. Archdekin, telling him to
keep the two arzees against the Dewan in his
own hands ; and that when Moonshy Sudder
O Deen should arrive from his house, and 1
should receive my money through his means,
that 1 %vould make him (Nundocomar) a pre-
HfOt of 6,000 rupees, and take liack my arzees
from him : 1 also desired, that he would lay the
aisee which I had given him against Mr. Arch-
dekin before the committee, and afford me his
patronage. The said Rajah a^eed to this, and
dismissed me. Another day Maha Rajah told
me, chat his business dependeil on Mr. Fowke,
whom 1 must visit. 1 -answered, that in the
month of Poos, a quarrel hapueneil between
that gentleman and me, and that I therefore
could not go. He replied, It did not signify.
At his desire, 1 accompanied Rada Churn to
visit t-he said gentleman, who talked to me very
friendly. In ihc mean time, Monnshy Sudder
O Deen arrived, and tohl me to gei hack my
arzees ; and that he would settle my affairs
wiUi the aforesaid Dewan. 1 went to the
Muha Rajah, an<l desired to have my arzees re-
turned to ine. Muha l^tjah re|i!ied. Give me
the 6 000 rupees, according to aj^reement; and
take hack vour ar/.ees. I said, i have not vet
receivr-d the money ; as soon as 1 have, I will
assurtilly give it ^ou.and will give you a writ-

[1K0

bear the particulate of it aiioe fron you : Ibis m
of no cunsequenoe to you. Baing vaosedilaH,
1 said, Give me whatever draii yo«i pkaaa;
Afterwards, at night of tbe 6tb Bjraaac, al bit
own office, be ciuiiBd me to -tiave it writtrB by
my own Moonshy, and took it froai me; aad
on the 8th instant he sent me triib Rada Cbim
to Mr. Fowke. Tbe said geoilemao eaUcd mt
into bis chamber, and, placing two trfkan $94
two Bengallies over me, firat ol' all aakod of
me. What suras did you gire to the fioteenNr,
Mr. Barwell, Mr. Yanaittari, &c. aa hcihaa f I
answered, 1 gave no bribes. Havk^ beavi
this, he suddenly flew itUo a paaaiuo, and tmk
up a book which lay near him, to strike me,
saying. Do you desire yonr owo wrifait?
Write what 1 desire you, and put yoor seal tt
this arzee. Being fr^lened, i juii my aeii
to the arzee, and said, Tell me what you tfesirt
I should write, that 1 may write it. He said,
Write that you have given 45,000 rupecSi
within three years, as £-ibea to Mr. BarwcU,
15,000 rupees in nuzzies to tbe JGoverosr,
12,000 to Mr. VausitUri, 7,000 to Mtfha Rajak
llajtth fiullub, and 5,000 to Baboo Kisaen Can-
too. I was confined in a ch umber, without aay
power; and, beiiig in fear of my reputation aiiil
life, I wrote what was desired of me wiib aiy
own hand, and gave it, and thereby obtaiod
my liberty ; and when 1 got out of the cban-
ber, I stoofi at tlie top of the ataira, and calkd
aloud to Mr. Fowke's son and Rada Cbura,
'* Give me back the falsities which 1 have beet
obliged to write, and have been taken from ■« ;
oUierwise 1 will go and lodge a ooaiplaist
before the Audaulet." Shitnsheer Beg and Ui
Moonshy are witnesses to the truth of Ibia
Mr. Fowke's son, hearing, went to his iaiber,
and after much conversation came out, and sai4
to me, Go for the present to your house ; tbe
Maha Rajah will come here to mormw, do
you come here at the same time ; I w ill then
satisfy \ on. l^-ing remedi!<'ss, 1 came to mv
own house, and urnt to Moonshy 8udderO
Deen, anfl suid, Do you cro and give notice to
l^lr. Hur\\ell and Mr. Vunsittart, that Mr.
lu}\% ke has this day exercised great opprtssion
on me, and has made me write a ^reat number
of falsities airainst the <rentlemen, which he

ten a (rreement to this effect. He would not has taken from me ; and that, whatever is to hf
consent to this; and on the 5th of Bysaac said j done, will he execute<l to-morrow. This day,
to me. In the n^onth of Poos, you gave in an ! heing the 9thof liysaac, I came to Mr. Foivfci^i
arxee of complaint against 5lr. Fowke, on ' house, and saw that he, his son, and the Maha
which acr'junt he is displeased with you. ami ' Rnjuh, were consulting ioi;ether in his obaa*
will not return them to you. I replied, I gave her, I stood without. About two garriesif*
the arzees in trust to you, ami not to Mr. terwards, the said gentleman, the Maha Kajab,
Fo\vk(>. lie answered. Do one thing, and I he, came out, and got into their palanquins, i
will return your arzees: I will give you a ' came before them, and called for jutioe frsa
draft of an arzee, which you must write, and the Council and Audaulet, and desired thai they
present to the general, and a4>ree, that when j would return me the Hritiug which they bad

you are appointed to i'oorniah, you will present
this arzee against the governor to the council : if
you t\o not agree to this, your arzees will not be
returneil. 1 said, Shall I give a false arzee to
Mr. Fowke, to procure the return of my own
arzees.^ He replied. You need nut give this
arxee, or put your seal to it-; be only wanta to

yesterday forced me to write, and taken I'niai
me. The said gentleman and Maha Rajab,
being enraged, told their people to take Bf,
and keep me within the house. 1 oppasfd
them with all my force, and got into my paka*
(|uin ; there were near 90 people with me. Tba
quarrel continued between my pcopla iti

lOdl] Jor q. Compinu:^ mnmt Warren H^ftingSf etq* A. D. 177&

theirs till I arrif ed at the house of Rajah Ra-
jah Bullub, when their people returned. 1
went to (he gi>f ernor, and represented all these
particHlars to him : I hope for justice."

Ktel. [COMAUJt O J>EEN ALU CaWK.]

Q. Wbeo was U ^ou fir^t applied to dtundo-
•omar wUh the aneeas P— ^. The latter end of
Cbite.

Ha dclirar«d4be Ibree argees to Rada Churo,
wbo earned them to Nundooomar, whoaa be
himself 4lid not see that ni^ht ; but the next
^ay be saw Nuoducomar, who told him be bad
*Bt»if ed the araees ; that be would gif e the
mut afruost Mr. Arcbdekio to the Committee,
MkJ keep llie others by bim.

His ofi«»r was, hy means of Rada Churn*
4»000 to Nuoflocomar, and S^OOO fur himself.

He says, he made this ofler because he
eypected that Niiuiiocomar, by his ^reat io"
fluence in Calcutta, uhicb is well known,
would be able to procure the payment of the
■lOfMfy.

That Rajah Nundoconcar had always iiiflu-
tnoe, but particularly KJnce the Rajah ol'Burd-
wan obtained his Keliaut.

That the Raid Rajah and the Rajah of Rad-
abue paifi him attention, and that be baa Ire-
^eiitly 50 palanquins at his door.

H«* did nut himself, at that time, mention the
■loney to Nnndocomar, but only made the offer
lo Kada Churn: it not beinf( usual to offer
mouey to the principal, but through an inter-
mediate peraoii.

What he mentioned, conceminfp the draft of
tbe .arzc'e, mii* said by Nuudocomar in a
wbiaper; and heard by no one except Rada
Cburu, 80u-in-law to Nundocuraar, who con-
ducts Ur. Fowke's business, and ia supposed to
be bis banian.

He says, that Nuiiilncomar dictated the draft
of an arzee to his (Comaul'b) Moonshy ; and,
atler baviui; altered it, desired that he would
arder his llouushy lo write it lair. He then
eomplained of ilbess, and went away, leaving
bis Monnshy there.

That Nunducoinar sent bis Moonsby, about
ten St night, uuder the charge of another per-
son, with the arzee, and directed him to affix
hia seal to it, which he then refused ; saying,
that be had made no such agreement.

That, on tbe 8tb, when he went to Mr.
Powke'a, there ware no others in tbe room ex-

3t Mr. Fowke, Rada Churn, and two Ren-
lies and two writers. Young Mr. Fowke
mud others passed in and out of the room
sereral times. Mr. Fuwke shewed bim tbe
arsee, and desired him to put his seal to it. He
aay s he was in fear and trembling on acoount of
Mr. Fowke's anger, who took up a large folio,
and threatened to beat him witli it; that be
had laid bold of his feet, and desireil forgive-
Dtaa, oiul that be would do whale? er Mr. Fowke
pleased.

What Mr. Fowke desired bin to write was,
Ibat he gave tbe soma of money formerly men-
totba Oovaroor^^. BariMllrdso. Tbia

was OB a aeparite list, wriuau by bimtdf out
of fear.
That Ue did aot put down any ceasoot for

flvAMg ^beae suns, nor was desired by Mr»
owfie to do ao. He did noi give these aumOt
nor soy other ; and should nearer have AhoiigbS
of accusing tbcae gentlemen, bad it not bees
for Mr. Fowke and Mundocomar's conduct.

He took tbe farm of the Hedgelee district
for &we years, and fumisheil 375,(XX) maunda
of salt, and collecu 76,000 rupees revenue.
The Company |>ays bim a lack of rupees year«
ly for tbe salt which he provides for them.

DEPOSmON of NUNDOCOMAR.

<* Comsul O Been Cawn, ia his childhood.
If as with me two or three yeara : since, simie
disputes arising, he separated from oie ; about
two uionths ago, he mentioned to Rada Chura
that a violent enmity had subsisted betwixt hioi
and me, and begged Rada Churn to endeavimr
to bring ua togetlier ; be made many iutreatica
to this purpose to Rada Chum, hIio intoruied
oie of what had passed ; ami likewise tuf-«rmed
me, iliat Comaul O Deen was much aahamed
of his tiehaviour lo me ; antl tliat be bctfged
his faults might be forgiven him. 1 told Rada
Churn, in answer, that he Mas in the urong to
mention this affair tf» me ; who earnestly re-
quested, that I would forgive Comaul O Deao.
J answered. That he was very young, and that
this man would ocraaion more dilutee; but at
laat 1 teave bim permisaion to bring Comaul O
Been Cawn. One day be fwid to me, that
Gunga Guv in Sing bad got £6,000 rufiees attar
the manner of a brilie. besides 3,000 and aoo
which had been taken by his servaais. 1 ask-
ed him, if be had ever mentioned this oireum*
stance to any ono else. He aoswereil, That
Judder O Deen and Gimga Govin 8ing were la
friendship ; and though I had several umes da-
manded my money fmm tlieni, the? would not
pay it. I told bim. That, since that was tba
case, I had no other remedy but couiplainiog
to tbe oouBcU. Another day, having writtea
two arsees, be brousrht them lo me: after
reading them, 1 desired bim to carry tbem to
the council. He then desired me to aeod
Rada Churn with bim to Mr. Fowke, that that
gentleman might send tlie arzeea to tbe coun-
cil. I did so, and desired tbem to iciva my
eomplimenla to Mr. Fowke ; requesting, that,
iftbeproots appeared clear, he would send tbeai
to the oouDcil, that Comaul O Deeii might ob*
tain justice. He gave tbe arsees to Mr. Fowkot
ailrr which some days elapsed. On the Ath
Bysaac, I went to the bouse of the general, ta

Iiay bim a visit. IV bile f waa at the ffcaaral'a,
[ received a msKSsge from Rada Churn, in-
forming uie, that Comaul O Deeu and himself
were at tbe house of Mr. Fovike, and requeat-
ed 1 would call in oh J went borne. I went
there accordingly. Mr. Fowke tukl me, That
Comaul O Deen had aiade both verlial and
written representations lo bim, and requeaiad
tliat I would examine tliem, and inlbrm bins
what part of bis reprewMatioBi wera trva.

Hoes]

15 GEORGE m. Tfiai qfJoteph Fouh mat oihen, (lOM

Comaol O Deen mid, That he htd a pain id
his bowels, and could not remain any looser,
^t that be would come with a foal draft of bis
complaint in the ereniDg^. I went home. About
terea in tbe e? eoiog, Comanl O I>een came to
mv house, brinffin^ a foul draft of a paper and
a Moonthy with bim, and desired Rada Chum
to carry bim to me. He according^l;^ came to
4newitn the foul draft; and, upon inspecting
it, I aaketl htm, What was the meaning ^
Qherab Purwar Audanlet GoosterP He an-
awered. That the council were entitled to be
called Gherab Purwar Audaulet Gooster. He
told me, that tbe copy he had ffi^en roe was
Dot well worded, and liegged of me to make
4Nit anptl^er. His Moonshy then began to make
cut another copy. He bad written out about
half his arzee, when Comaul O Deen observed
that he was ill, and would go home. He left
his Bloonsby liehind him, and went away.
Just as be was going, he desireil me to send
Slieik Ear Mahmud with the letter when it
was done ; and that he would seal it at home,
and send it back to me. I then went out of the
office, and told Sheik Ear Mahmud to carry the
arzee to Comaul O Deen, together with the
Moonshy ; and in case ComaulO Deen should
affix his seal to it, to bring it back to me, and I
would send it to Mr. Fowke. When the arzee
was wrote. Sheik Ear Mahmud and the Moon-
•by carried it to Comaul O Deen ; who sealed
it, and gave it to Sheik Ear Mahmud. Next
morning the arzee was shewn to ne : I direet-
ad Rada Chum to carry Comaul O Deen with
the arzee to BIr. Fowke. This was en Sunday.
Comaul O Deen* gave the arzee to Mr. Fowke.
Two days after, being Tuesday, I went to Mr.
Fowke's house, who obsenred. That if two

r»ple witnessed the arzee, it would be better,
said, he was right, if Comaul O Deen would
agree to the proposal. One gurry after, Comaul
O Deen came. 1 informed biro, that Mr.
Fowke thought it would be right to make two
persons affix their signatures to the arzee as
witnesses. He agreed to it ; and two writers
were called, to whom Comaul O Deen said,
This is my arzee ; witness it. On Tuesday
ef euing Comaul O Deen came to me, and told
me, He was informed, that Mr. Fowke intended
to deliver in the arzee to the council next day.
He requested to go for one gurry to the house
of Mr. Fowke, and to entreat him to deliver in
the arzee against Gunga Govin Sing first. He
made use of many intreaties, and at last I got
into my palanquin, and recommended his m-
treaty to the consideration of Mr. Fowke.
That gentleman answered, That he would do
what was proper. When I was going, Comaul
O Deen represented to me, that it was very
hard upon him that the arzee against Gunga
Govin Sing was not delivered ; for, if the
other was given in first, he feared he should
gain no advantage from that. I advised him
to be patient, and to give in his arzee to the
eoundl, where he would obtain redress. He
would not attend to what I said, but ran to the
governor's, i went home. "^

Sh£ik ear Mahmud being sworo ; RijahNan-
docomar desires ha will ^ve an aoooonC
of the drcumstancet af this ailair.

** One ev«iing Maha IBLMk tittang in his
dewan kbasma, or office, Comaul ol Dam
Cawn came to bim, and sat with him about an
honr and a half; when be was going away, ha
pointed to bis Moonshy, who was sitting si
some distance writing; and ordered bia pespis
to ask. If he bad finished the arxee? Hia pes^
pie returned, and informed him that one half
was done. He then requested, that tbe Rajah
would be so good as to send one of hia peopb
with the Moonshy and arzee when it abonld be
finished ; and that, when he bad aealed it, ha
would return it. Rajah Nundooomar oitlcnd
me to carry the paper to Comaul ul Deen whm
it was finished, and to take the Moonsbj with
me. I asked the Moonshy, if hia arzee wm
ready ? He answered. It was not ; but he hai
only two or three more lines to write. Ate
one gurry, the Moonshy informed ma, thald»
paper was ready ; and I went with it, in «••
panv with the Moonshy and another pcnonyli
thenouseof Comaul ti! Deen; tbeSfooMhy
put the paper into his hand. He gave ma bs^
tie, and a hooka to smoke. He then read Iha
arzee from beginning to end, and blotted oat a
word of it, in that part whidi conoemed Ifr.
Graham ; and Goofhast, he said, to be pot si
stead of it. He then spoke the following wwdi
to me : < Sheik Ear Mahmud, I wrote lbs

* contents of this arzee ; and if a hnndred Gs»

* rans are put on my h«Mi, I will swear to lbs

* truth of every wora in it.' He then took dT
his ring, and ordered his khidmidj^, or mt'
vant, to bring his ink-stand ; which was ae^
cordiogly done. He then sealed the arzee;
and asked two Moonshys and myself, wba
were present. If tbe paper was well sealed?
To which we answered in the affirmative.
After that, 1 carried the paper home. Rajth
Nundocomar was asleep. I put tbe arzes
under the care of the Consumma, directing biai
to give it either to Rada Chum or Rajah Nun-
docomar in the morning.'*

Sheik Ear Mahmud examined, the Arzee b^
iog shewn to him.

In what part of this arzee is the word Goof«
hast, which you said in your evidence was pal
in the place of another ? — Comaul ul Den
made an observation, that Goofhast should ks
inserted in one part of the arzee where Mr.
Graham's name was mentioned ; bot he M
not alter it in my presence.

Is this the petition which Conuul O Dcea^
Moonshy wrote in Rajah Nundo<»mar'B hooifi
and which you carried from thence to tbe
house of Comaul O Deen ? — [shewing No. L]
— ^This is the petition.

Did Comaul O Deen's Moonshy copy ths
arzee from a fuul draft? — One man read tbe
foul copy to the Moonshy, who wrote wlit
was dictated by the other peraon.

Who was the other penon ?-— I da

^PSfi] Jo'' <t Cmupiraci/ agatnH Warm
^^■satne. 1 aliuuld kaow liiiD if 1 <*m to sec

Haslijigs, esq.
tlie ml) 1

19 ■ terTBDl of

jlODeen's.
How do you know ?-- He lolJ mi bo, ib I
accotii|)aiii«J liiin to Ilia liouse of Coroaul O

Otd Itnjati Nuiidwomiu read over cither the
fi>nldnirtoi'ilii?iBirco|>y urihearzee?--! do
not know ibai lie eillicr read tlie foul drali or
the iait copy .

Wlio weie llie nioonatiyt 10 whom Coroaul

fita said. It not the pjper well sealed ?- —
Iwn Uoucifihys who accompanied me froai
b Nundoconiar's, aod who were CocoBul O
)'• ferraDU.

Jlitoiiihy Khadar Ntwas Caan examined.

Did ttajali Nundoconiac read the petition

after it was first wrote from his diclalingr— -

^Bejlid read it. He lirsl L'Bte a tiiiJl draft of it

^^BTlbe handa of one of Vis owd people; nod

^^B corrected it. He Hril dictated the arzM

^^|pa ; it was aAerwards again ivrillen by one

^^^ii own people ; and the Itajah then cnr-

fccted that copy with his own hand, and gave

it to me to write fair.

HsTeyuu a copy of it?— -No.
Ilo you remember the anbject of the araee P
— I do t)ol remember any ihin^ofit.

Did you write more araces than one that day?
—Only one that day.
In whose name? — Comaul O Deen Cawn'a.
To whom wai the anec roeaDt to cotn plain ?
—1 do not know.

A^init whom was the complaint?— Against
lli« gaytToOT, in the arzee thai was dictated
10 toe.

What waa complained of in the arzee?— I
before told you, that I coutd not tell. It is in
i1m> petition, which may be produce*].

Cvmuul O Dun Caan eiamiDed.

Waa the complaiui ai^inst the governor,

Mr. Barwell, Mr. VaniitUrt. and Hajali Bui-

tub, in one arzee, or in more i' — They were

•oatainrd in one.

T» how many papen did you aflli your sig*
■alare that day ? — I put my seal to the arzee,
maA Biy signature to one lurd un aeparate |m.
?»-

What did that a^arale paper contain ?--.An
•seeont of sums giren to dilTerent peranna.

What waa coataioed in the arzee ? — 1 do not
kiMw ; lat it be produced.

Were the uames of the gsvemor, or any
«Uier penona, mentioned in that arxce ?— •The
~ raor's name waa mentioned in the conier-
n bchi with the Rajah, when the foul dralt
wrltlcn at night. The complaint waa
t the go'crnar. Air. Graham's name,
I G<rtin ISing'a, and Suddrr U Deen's,
pntfntioiMtd.

<*U> which you set your seal at
pawkr'a houie the aame written by your
ifajrooUiafithf— Tliaatxeeaaalcdby mo

A. D. 1T75. [1080

ritten by my Mom-

■hy on the 6tli.

Did you on the 8tfa affix your signature or
seal to any other paper than the arzee and the
fiird?--!4o, I did not.

Was the Dame of any wllneaa affixed to the
arzee .'--The senanU of Mr. Fowke did aSs
Ibcir names as witnesses to the arzee.

Did they likewtae etSx it to Ihe furd? —
No.

Was there in the arzee an; references to th«
separate paper? — No.

Was there no arzee to explain the nature of
the separate paper P— No, there was none.

Was there any Bemootaula on the fnrd ? —
When the furd first came on the carpel, I was
blind and senseless with cryio^r.

How did you write the fui3 in audi a aitaa-
lionP — 1 wrote upon the furd the words, Roa-
san nedum, or right. I wrote uo other part

What letters or words did you write on Ih*
furd^ — I wrote words to shew that I approv-
ed il,

Wbetberthe fitrd cnntaioed a list of name*
and sums of money, or if it contained any things
else.^ — dimply a list of the uames anil sum*
collusively taken on account of Hedgelee,

Who wrote the furd ? — I do not know.

Wboi

n the room at the time?— Hr.

Foivke and Rada Churn were present ; muj
other people passed backwards and forwania
through the room; who they were, I do doI
know.

Who brotieht the [len and ink in, to write
the furd? — Every thmgof the kind was there.

Was the name of the governor or any other
person manlioned in the arzee? — The com-
plaint was against the novernar. Moonshy
Sudder O Deen, Gunga Goiiu Sing, Mr. Gra-
ham, Mr. Vansittarl, K.jal. lii.llub, aod the
governor's Moonshy's names were mentioned
in the arzee, I do not recollect any otbera.

Was there any thing relating to the Ingatee
affair and colhiaioiis, in the ar/ee sealed by you
on the 8lh.'— The petition was vrry loiig: I
cannot remember.

Cannot you remember Ihe least of il? — I
can say noihing respecting the arzee till I havo
seen it. [Comanl O Uecn Cswn represent*,
there wan another small arzee.] I gave in
another ar/ee respecting the Audaulel of Hid-
gelee.

Hiiw did yon sign Ihe furd ? — I wrote flui-
gan neduni, or ' I acknowledge it,' upon the

'■& ,

to say you wrole the furd
with jour own hand, when you only signed it?
— Azidust Khood Novistadada, which are my
own words, may mean signing my name with
my own hand, as well ai writing it out with
my own hand.

lulo whose hands was that furd dehreredr."
Mr. Fowke said to me. You have given tnc
this. I answered, 1 auknowledgc it. I gave
it into Mr. Fuwba's baada, alter bavins **-
kuowled^d it.

10S7}

15 GEORGE III. Trial of Joufh Fimke alkd oAer$^ [UMB

Did yon wxpfo&t tbaft Ibe writers ftooA 6¥er
you as f|^uarti8?---No, 1 did not imagine they
were put orer me as- jgfuardt.
- Are yo« certain you did, on the 8th Bysaao,
write aoy thin^ upon any other pa|ier in Mr.
Fowke'ii houMe besiilps the two arzees?— None
but these two |M|iers, besides the furd, which I
•ipiPil, but did not write.

Into whose hands was thai furd deKf ered ? —
Mr. Fowke said to me, Yon have KiTen me this.
1 answcreii* Tlwt 1 bad written Rutsan nednm
upon it.

[The question repeated.]— -I gpafe it into
Mr. Fowke's hands, fXUsr writing Roasan ne-
dnih upon it.

. WIm} was present when the furd was deliver-
ed by Mr. Fowke to you to sign ?— I did not
■mrk any witnesses; it was in Mr. Fowke's
beute ; a nnmber of people were going back-
wards and forwards.

In what room ^^as the fard delivered ?— In
tke bed chamber.

. At what time of the day was the fsrd deli-
vered P Was it at the same time the other pa-
pers were delivered?—! believe about twelve
•'elork the arsee was sealed, and the furd sign-
.«d at the same time.

Were they signed in the same room P— Yes.

You say that you wrote what was desired of
you, and thereby obtained your liberty. What
ch> you mean by obtaining yonr liberty?-— 1
WM got into a pnce where i considered myself
V subjected to austbrtanes ; from which I was
■et at liberty.

Was you ever in danger of your life?— 1
was apprehensive of my reputation ; and, when
ba lifted up the book, even my life might have
suffered. [Gomaul O Deen gives au account
of his signinsr the arzee, &c.] When Mr.
Fowke desired me to seal the paper, I answer-
ed, That I had made no such promise to Maha
Rsjah, and that I had not given the arxee wil-
lingly ; that, in the petition, Maha Kajah had
written Ghereb Fuelvar Audaulet Gooster, but
that 1 did not know who could be addressed
Audaulet Gooster, and who it was that would
issue orders equal to such a title : that if he
would carry me before any such man, I wo^ild
seal the paper in their presence. Mr. Fowke
was angry ; and, being impressed wiili fear, 1
sealed the paper ; and immediately aAer this
went out of the house, and raised the clamour
of which you have bel'ore heard. 1 knuvv no-
thing further.

(Shewing N°. 1.) Is this the paper your
Moonshy wrote? — My Moonshy wrote it at
Maha Rajah's house.

[Same question respectinsf arzee N° 2.] My
Moonshy did wriie this pa)ier. When I went
to Maha Uajah he asked me, in a friendly
manner. What reason trmpted y<iii to complain
to the governor aijainst Mr. Fowki- i' I answer-
ed, that i was a farmer; I did not complain.
I gave an account of what hail piiNscd from the
beginning. When IVIr. Fowke aske«l inc im-
proper questions, and was an{rry at me, 1
thought it necessary to complain, and gave an

arsee into the governor*! bamli^ to la;^ bffiRt
the council. Maha Rajah asked me, 'if I had
a copy of the petition in my poaaessioa ? I an-
swered, that 1 had ; and then went home. I
Bought for it, but was not ahia to find ii ; m?
Moonshy was ^j^one from Calcutta. Aa 1 eonti
not find it, 1 mformed the Rajah of it. Bi
then desired me to write doWn whatever parts
of it I eonid recollect; and that then 3fr.
Fowke would no kmger shew his anger to oHi
I then made my Moonshy, who has thia dsy
appeared aa an evidence, write down the arns
N^ 3, and gave it to Maha Rajah; whodt-
sired me to seal it. 1 acconliugly fixed my sni
to it. Since that time 1 have heard notbiaf
more about this arzee. — [ComnutuJ O Dsm
further observes, two Portuguese writers bifs
witnessed the arzee M*. 9, though be affiisA
his seal to it in his own house.

Mr. Fowke, Whether you recollect, tbit,
when you delivered the arzee to the govenwri
the governor said. Is all thisitrue P Id answer It
which you said, It is all a lie ? — A. It is fabr.

MaihcBo Miranda^ a Portuguese writer to Vk*
Fowke, sworn.

When Commanl O Deen first acknowle^H
the arzee, N**. 1, was any reluctance thewnm
his part ? — Not any.

When this paper was acknowledged by
Coromaul O Deen, did he do it willii^y?^
Willingly.

Did he appear at all frightened ? — No.

Did you see any thing like force or violcacs
in Mr. Fowke's behaviour, when he madetbi
acknowledgment ? — No.

Did he acknowledge before you, that he bad
told manv lies al)out Mr. Fowke in a fonaer
paper ? — Knows not.

Kelate, as well as you can, what passed.—
Mr. Fowke asked Cominaui O Deen, wlm
the papers shall ho prodiice<l in council, asd
they iiliall demand th«*pnrtirular$, whose oasie
will you make use of? Ifo said, the general's.
Mr. Fowke asked him over a^rain. Did 1 ni«e-
tinn the general's name, or t^ven my own name,
or demand such a paper from you ? To wbieb
he answered. No. Mr. Fowke then said, Wh/
will vou make use of such names? To wNeh
he answered, Who<e name siml) I nieatioa?
Then Akermannii asked C'oinaiil O Deen, Wi»
required this paper fn>m you * i>td \ou givs it
of your own free will, or did any body iasiitsB
your givinuf it? He said. 1 -jfMis it of my ess
free will. Then he said, 1 went to' Kais
Churn, and told him that I have done a gmi
fault on Mr. Fowke. Hada Churn asked biMi
What fault he had committed ? He then niii
He had cn^en him the fiarticulars, which bt
had brought in writing, in that arzee ; and tkrt
lie sheweil it to itada Chum, who had bid his
shew it to Nundocomar ; and the Rajah Isl
him carry it to Mr. Fonke. Mr. Fowke ibtf
asked Comaul (> Deen, Whether this pspv
waK all true? When he said, it was all irai^
bat one lie ; and said, that ha copcctW th*

10BJX] fir a tynupiraey agidmt Warrvn ttattings, «}. A. D. 1775. [1090

fault df Mnonihj Sudiler O Deen : and (he
drponrnl UTt Hie mom, and him in it

Dill ;aii hear Cuniaul O Dmd »A for Ihe
|npiT Mck ? — 1 wu writing ot my ilmtU, ind 1
did tiriir tiim niik tlie jiaj)eni buck, and auk
«hii he ihoulit wriir; aad Mr. Fuwke told
liim, he uliould not hare the [laper back, nor
wrile BnT thinp in bis Iioum.

Did Cominaul O Drcn brin|f (be Brs«M,
which ynu ^itncstfd, alnng with him in Mr.
Fowke'a? — I dn mil know.

Did Mr. Fii'wkp, in yanr hearnigf, uk any
^ominnii abniit (irewnli ? — No.

Was Mr. Pawke pmpnt when yOu li^rd
ynar name 1o the uttef—l ai^ned it in llie
««raad*. Hr. Powke wai in hi* own ronm:
both Ihe arzeet were Maled in proiencp of Hr.
Franm Potke, and not ofHr. Joaeph Fuwke.
After tlipy were iraled, they were carried into
the room lo Mr. Joaeiih Po»ke. They were
both aealfd at Ihe lame time. They were
■uled bpfnre the rnnreraBtion.

H;id Cumaul 0 Deen Cawn wen Mr. Fowke
bef'ire (he aesln were put ? — I do not know : 1
Wtt not prewnt at all timet when Mr. Fuwke
mild Coniaul U Drfo vrere logetber.

that day, berore the aeali were put tu the
•rzenP — 1 cannot.

What lime uF the day were they lesled ? —
Atniit noon.

What lime did you we Comaul O Deen Hrtl
that day T — About ten or eleTen, in the ve-

« on any other paper ?

Did you hearComaut O Dkd My it waabia
•Ml r — I iiw hint leal il.

li that your aj|{rialur« to N'. 3 f — Yei.

DM ynu hear Comaul ODeen ackonwledtre
tfaa aiifoalure •) liia own ? — I taw him real il,
and heard him adinowledife it.

Wail the ink put on Ihe aeal before hv put il
aa both pnpert F— The leal waa dipt in the ink
MWe il wai put to the papers.

Do you know if Mr. Funke did or did aol
■ak Comaul O Dren any qaeationi relaliuif lo
prearnU ? — I Jo not know ; pot in my pretvore.

What tinw did Comaul O Ueeo cume to the
boaac ? — Abunt ten oreleien.

In'wbat room wai Ihe aeal put to thote pa-
tera?—In Mr. Fntncia Fowke'a room.

Are you anre it itbi not put In it in the
rcruida? — Nn, it nat nol put in the Teranila.

DoPt Mr. Princia Kuwke'i ronm open lo the
ffraiida T — No, you go through the hall lo Mr.
Vranrii Fowke'aronm.

Wbere wai Mr. Fowke when the teaU were
putr— Inhltownruom.

DtTyOd know ir Comaol 0 Dew bid bean
VOL. X.\.

with Mr. Pnwke berore the'teati w
do not recollect.

Did C'imnul O Deen make any and what
nniaef — He was h^itioi; and prayinz; but I
do not know fur wlint. He came out tu ths
vertuda, and denired Hr. PiiWke younger to
intercede with hit father; hut I do uoi know

Did ynu at any time nee Mr. Fonke lid up a
book, offertn^ to ilriki' Cuitiaiil O Drrn ? — I
dill not; but I hrard Mr. Powke bid him go
out of hii pretence. [Multhew Miranda heintf
asked Ihe lame qneilioni, make* the tame
answeia.]

Q. to C. 0 Deta. Are thete i)ie two wrilert,
who you aliepfed were put oicr yon, when vou
■i|[ned Ihe arsee? — A. Parcira wa* oue ut'llM
wrtieri) the ol her pi Had and rrfiBiiae<l; aud
tometiuea another came in hi* plnce. While
i waa in cufivut»alion with Mr. Powke, MinM
Bengalee! likewise tnraeiiiaea caote. They
were both at firat pretent,

Aktnuaaiiu, Serrant to Mr. Fowlce, awem.

Aktrmannu. Mr. Pnwke laii) to me, and (ft
another writer named Mirauda, Lliten tn what
pauea betwixt nie and Comaul O Detu. Mr.
Powke askpd Comaul ODeen, Wlien ynu carry
lliote paper* to council, and shall be atked about
them, what will ynu sty, and whose name hJTI
yiin oiiike die of f He answered. That lie
would make use uf the crarrara name. Mr.
Puwke Ihen laid. Why will you make ute of
the generat'i name? Did the general atk you
any Ibin^ himself, or did I ask you any thing
in ihegeneral'a namef Comaul O Deen an-
twered, Nn. Mr. Powke then aaid. Why do
you use ilie (^iierarH namr? lie taid, Whose
name shall I use? Mr. Powke said, Make um
of Iboie persona' names whn make iuquiriee
from you about ihis buiinru. I then asked
Comaul U Deen, if he hail himself, nf lilt own
free will, written Iheae paperaf or if he had
been obliged li> write them T Comanl O Deen
saiil lo me, 1 went one day lo U<bnn lltda
Chum, and desired him to make roe tnjusinled
wiih Hr. Fowke, ai I had aaid tnmeihinii of
hiiu bad ; Radi Churn aaid, What bad thinga
hare ynu said of him t On which 1 iufurined
Kada Churn of erery thing concerning il; and
■aid, I hi*e brought the <bul dralt of ilieae par-
lirulara : Rada Churn aaid, Shew il In Maha
KiUdIi. Mr. Powke aiked Comaul O Deen,
If what he had written was true or false? Co-
maul O Dppu nnawered. It is all true; thri«
was one fal.pbnnd. Mr. Fuwke atkrd. What
iH il f Coinnul O Deen answered. There ar<i
aotne bad eiicumstances relating lo8ndderO
Deen, whirh I haie concealed. Hr. Pinke
said, There ii nut oue lye ; you have only h;t
one man etcape.

Were vou in Mr. Fowkc'i bed-cbamber with
Comaul 6 Deen 7— Vra.

Did ynu are Mr. Fiiwke Vitt up the book tii
■Irike L'omaut O Deen P— Nu.

Were you in the room all the lime with Co«

1091]

15 GEORGE III. Trial (fJosqJi Fuvake and others.

[lOM

maul O Deen ?— Coiniiul O Deen was in Mr.
Vraocis Fowke's rwiin. When Mr. Fowke
called me iuto his, either Mr. Fowke or Rada
Churn desired that Coiiiaul O Deen mi^ht be
called : I called him, and carried him iuf> Mr.
Fowke*8 room wtih me.

From that time, did ynu continue in the room
till Comaul O Deen went away ? — I was all
the time iireseiit, and not absent a moment.

Was Miranda all the time in the rm>in with
you ? — He was. He went out for a uiomeot,
to shut the door.

Was Pareira in the room aU the time? — He
was not io the room : be was waitiuj^ in the
veranda.

• While you were in the room, di'l M r. Fowke
use any words or actions that might tend to in-
timidate Comaul O Deen?— No.

Whether you are sure that Comaul O Deen
was not in the room, before he went into Mr.
Francis Fowke*s room ?— We were in the ve-
randa before. He bad been in Mr. Fowke's
room before that.

How loofT had he been in Mr. Fowke's
room ? — 1 do not know. I know that he was
iu Mr. Fowke's room.

Wua it about a gurry ? — I do not know.

Do you recollect if there was any pen and
ink in Mr. Fowke's room ?— I did not see any.

Did you hear Comaul O Deen cry, or mate
any noise .^— No.

Do you recollect Comaul O Dcen's going
out of the house .^— It was past one o'clock.

Did you see him go out.^^I did.

Did Comaul O Deen go out uf the house im-
mediately after going out of Mr. Fowke's
room ? — No, he went out of the room, and re-
mained some time in the f eranda.

Did he return again into the room ? — He
went into Mr. Fowke*s room ; but not io the
room of Mr. Fowke senior.

During the time he was in the vrraiula, did
be express any signs of discontent.^ — 11 u uns
displeased, and requested the papers initrht not
be sent iuto council that day, but deferred to
the next.

Did he desire to have the papers back again ?
—He did not demand them ; but said that he
wonld write them better for next day.

Did he make any outcry when he wont into
the street?— No.

Was Shumshfrhrg in Mr. Fowke's house
when (.'oinanl O Deen went away? — 1 know
DO one of the name uf. Shuuisiierbe;;. If I st-e
|he person alluded to, I bhall be able to unsvwr.

Name all the persons who were present at j
Ihe lime. — 1 dw not reiUiniU'r. 1

Were there many people there ?— No.

JUrrutaut J'Un, Moonshy t«» Mr. Francis
Fowke, sworn.

Whether you rcmcinlicr Com an I O Dern's
going away from Mr. Fo\\Lc's liouse on the
^th Kepaac? — I do nut rememlier it.

Do you remember Comaul () Dotn's asking
4# kuv« any tiling rcilored to bim, and what he

said ?~Ves, he did ask for aomctbiiig back ;
and said, I will git e it in writiii|( aflcrwardi.

[The (|ue6tiu» repeated. 3 He did not ask ti
take it back ; but said, if it wai iccancd It
him, he would alter it.

Did he say auy thing aboot falMtjf^Ha
did not say there was any thiog falav: be ni^
There is something wrong in it ; give it dm,
and I will alter it.

Did he comj)lain that he was forced to wrili
it?— When Mr. Fowke befrao to fold up Iks
letter, he began to cry out Uiat force had bcci
used.

[Uuestion repeated.] He did cry oat thtf
force was used, although it bad been allolcd
by two witnesses.

How do you know that the paper he caU
for was the same attested by two sntnesics?—
He did not demand that paper which was at-
tested by the witnesses.

What paper was it he demanded P—Hh
paper which was not sealed in my prmaa,
but which he brought from home : it has ths
word * Isshaad ' upon it

Did not you ask the meaning of some
and expressions io the arzee that has the
■ Isshaad ' upon it ?— I did not.

Did you copy out the contents of the
N° 1 ; and do you not know the contents of ii?
— 1 did ; 1 kno^ the subject and contents if
the arzee : 1 learnt it first from the moulh if
Comaul O Deen, and allerwards made andf
acquainted with it by reading tlie arzee, warn
I found some little difference from the iaftr*
matinn I had received from him.

Do you reiMeiuber any thing of a coofcffi-
tion between Comaul O Deen and Mr. Foakc^
Moonsliv, Mahmud Mushruff? — Y«s. Usis-
shy .Mafimud Mushruff, upon seeing Conml
<) Deen, expressed some anser against him, fir
lia^iiii:, as he said, once before made him gift
oaih ; and asked Comaul O Deen, if he ciM
to lite liouse with the intention of doing the lit
ariuiit.'' Comaul O Deen answered, I did BR
occasion you to swear by my own pleasure: I
wrote out an arzee for the preservation of D/
own character ; if 1 had not written it, my ic-
pu tat ion would have suffered.

How many petitions do 3'ou know of Ce-
maul O Deen^s signiu;; ? — He put his lai
to one arzee in my presence : other four wbick
I have seen in the hitnds of my master, tboeifc
1 know not fiom what particular persoaski
got them, were undt-r his seal.

Was cither of the<e two petitions, N" 1 ill
2, the iJhZt.es he seukd iu your presence.*—
YefJ, this was, N* 2.

Where was this N" 3 sealed ? — In Mr. Ff»
CIS Fowke'b room, bfl'ore me.

Further Proceedirtgt,

What Mr. Touke said in his Defence m
not minuted. He atUrmed that the arzee csac
into his hnn.!< (whether brought by ComaolO
De<'n or not he row Id not remember) ittdv
sealed. Thut Comaul O Deen acknowled^Il
iu the preseuce of the two witnenes, who 1 ^

1093] for a Conspiracy against Warren Hastings y esq. A. D. 1775.

[1094

ed it, with e?ery expression that conid mark it
be his ovrnfoluntary and cheerful act; that,
at\er Comaul O Deeo bad qaitted the chamber,
he returned, forcings his way into Mr. Fovrke's
presence, decUred bis unwillingness to hare
that arzee presented to the council ; intreated
and implored Mr. Fowke to give it back to him,
fell 'at his feet, and embraced his legs with
•ncli violence as to give him pain. That, pro-
voked with this, Mr. Fowke did Itf^ up a book,
wbicb was a volume of Churcbiil's Vovages,
mnd with difficulty restrained himselt from
■Inking him with it. That every sylluble of
tb« funi, or paper of bribes, was false; and
that he never saw or beard of such a paper.
Mr. Barwell in rejily said somelhiiig upon
tlie subject uf this part nf the accusation ; on
which Mr. Fowke, aildressing himxclf in a
very earnest and pointed manner to htm, said,
Will you. Sir, declare upon vour honour, or
yoor oath, that you never received thai money i*
(meaning (he 45,000 rupevs said to have been
metttioned in the furd as receiveil by Mr. Bar-
well.) Mr. Harwell replied, ** that he did
4eny it upon bis honour and «>atli." Then,
mmI Mr. Fowke, " 1 mnst acquit }ou.*' The
rest of bis defence consi8ts in untiesiations uf
kis own innocence; and deciaralioiiH, that,
while he livedo he would ever use bis utmost
cadeavours to detect and preveut oppression,
whatever might be the rank or power uf the
oppressor; in invectives ai^ainst the cbarac-
lerof Comaul O Deen, und appcaU to the in-
tegrity of bis own, viith much and violent de-
daination.

The Examination being closed, the Judges
leqaired of the |>er8ons aflected by (be sup-
posed Conspiracy, to declare whether I bey
would pnMccute the authors of it at the next
■ewon ot Oyer and Terminer ; and (be mom-
log of the 23d was appointed to receive this
detennination.

Mr. Barwell, Mr. Vannittart, and Mr. Ilast-
iaga, attending at the time appointed, declared
llieir intention to prosecute Joseph Fowke,
Maba Rajah Nundocomar, and Hada (yliiim.
Mr. Vansitiart anil Mr. Hastings rrquiied bail
aboiild be given, and bound themselves by a
reco'/nizauce to prosecute; I^les^ieum Ijacam
aad Farrer were sureties for Mr. Fowke ; vtd.
Thornton and captain \Vebl>er for Nundocomar
aad Kada Churn.

8ir John l>oyly was employed as interpreter
ia the first examination of Comaul O Deen
Cawo, before the (.'liief Justice and the Judg<*s,
on the 19(h ; fearful of not poshessingsutii-
dent resolution in the presence uf many people,
be desired that some other person might assist
bim in this otfici* on the next day : and Mr.
£Uiott was accordingly desired tn aUend with
bim, which he did, an<l was, m t fleet, the only
iaterpreler on the 20ih.

The part which sir John Doyley had chosen

IB Ibie business drew ou him the severe displea-

snie ut* the Iniard, that is to say, of sfeneral

' Ulareriogi colouel Monsou, and 'Mr. Francis,

who had been assembled as osnal, this being
their day, to a board of inspection, and form^
themselves into a council for the general de-
partment ; they censured him for neglect of
doty, in terms which directly imply a censure
for having obeyed the onlers of the governor
general, and threatened bim with dismission
from bis employment ou the next instance of
the like neglect.

N° 3 and 3 are extracts of the consultations of
the SOth and 24th instant, containing the exa-
mination of sir John Doyley, and other mi-
nutes, which respect the affair in question.
These are in themselves of no moment ; but
they mark the temper of the majority, and the
interest which they took in the prosecution.

But of this they afforded a more conspictiouf
proof on the evening of the 21sl, which was the
day follo\^ ing the meeting of the judges. Ge-
neral Clavering, colonel Monson, aud Mr.
Francis, accompanied by the elder Mr. Fowke
and others, whose names are iM)t Hufficiently
ascertaine<l, went to the house of Maha Itajan
Nundocomar, and, ns it is said, gave him pub-
lic encouragement and assurances of prutec*
tion.

This visit is mentioned viithont evidence or
vouchers, as a circunibtance of such notoriety,
that it n quires neitlier ; for (he substance of
the conversation comes only report. Such an
honour paid to such a man, and on such an oc*
casion, by the actunl rulers of the state, too
plainly indicates their participation in the mys-
terious intrigues which have been long carried
on in the offices of Fowke and Nuiidocoioar.
The nature of the intrigues, and the legality of
them, will be best understood by the future
event of the trial, at the approaching asiizes.

On the 95tb instant, Mr. Fowke addressed a
letter to the Board of Ilevenue, in which he in.
closed three arzees of t^maul O Deen Cawn :
these appear to be the name which were first
presented by Comaul O Deen against Ginga
Govin ISintr and Mr. Arcbdekin, and to which
frequent allusion is made in the depositions N*
4 is a copy of Mr. Fow ke's Letter, and N* 5
translations which have been wade of the tbrta
arzees.

«' To the lion. Warren Hastings, esq. Goverp
nor General, 6lq. Council of Revenue.
«« Honourable Sir and Sirs; on the ]3tb
of Decemlier last, Comaul O Deen .Ally Cawa
delivered to your board a [»a|)er containing
many falsities injurious to my repuUtioa ;
which I refutetl upon my oath, aud the oatba
of two otlifT persons. lie has now put another
l»aper into my hands, which I take the liberty
of inclosing to you for my further justification.
In this paper it is pretended, that the gover-
nor general was active beyond the limits of
justice to forward a charge tending to my disho-
nour. Jf it contains a calumny, I shall rejnica
to hear that the author has a brand of inlanoy

I set upon him, as a public warning toall caluiii-
ttiatora and detractors. But, whatever may ba
tbe iiaie uf the inquiry, it is evident thai th«

1095]

1 5 GEORGE III. Trial ttfJtaepk Ftmike mti aiken^ {TUB

irnTeninr ureneral oice tliouglit CoiD«ul O |imnii»r: tkat Mr. Fowke, m thm kmmnt oC
Dien Ally Cawn a perjion wbcMe teslimoo^ was ilie Tf cka Cullarica, bail m§kird m» hiom mmk
iiut 10 \ie rejectf J h h^u a^ainU tne ; and \ 1 bad giv«n as duuceim to the Engbih gc»

therelorv I iidiit* 1 ma v be indulfft^ in a r«(|ue!»t, , tletneii, aoit bow niuob to lb« nali>«« is fmi
thai ilie recaiitaiiou 'of Cooiaul AU^ O Doeii : Ibrealeoinqf n>o with Kvorc |i«Miiiibini:Mi il' i
nay have a place on tb«' recurd^ aa well an bis ' did not declare : 1 rejilied, ' that Mr. FM»he

' did not say so to mo ; and if thefv fchuald kt
' any auf {Melon of taKhnod iu tlio peiitaon, a^

tbniuM arcuiiation. Couscious ut' the respect 1

OMt* to ^01 eminent, J cannot meotiou the go-

TeriKir ^eiif raPs name without pain, though | * oath would be required :' Guoifa G«»%iB aa-

ehMriiiialiy necessary to my own particular jus- swered, * G«i you lo Muoi»hy Suddcr O Vmrn,

tifiratiun. * and aftk his advice, and I w^tl tbilow yoa^'

** I have fun lier the honour to inclose a paper I WliiUt I was reUting this €XMivcr««iioo is
which Cniiuul Ally O Deeti Cawn declares to j Sudder O Deen at his house, Guo^ Gnia
ha«e been the tir^l accouut which he wrote with
his own tree itill.

** I am, with the greatest submission » bon-

md

oiirahle Sir and ^iirs, yuur very uliedient ai
faithful servant, Joseph Fowke."

Culcutta, April JR, ]77jr.

Translation iff the accompanying Paper ,

NM.

" I am desired to give an account of what
convpr»aiion pawsed between me and Mr.
Fi»wLo: J do here declare, upf»n the tailh of
my religion, thf truth id' this transaciion ; «iz.

" BaodKser Ghose preferred a complaint
against me, ou account of salt of his Tecka
Culiaries ; and the cau^e was reft rred for exa-
iiiinatiun to Mr. Fuwke. Aficr Mr. Foiike,
baling heani both partiei«, had dismissed us, I
lient in the evening to Nounshy Sudder
O l>een, Mr. Graham's Moooshy, and related
to him the conversation thai had |iabsed at Mr.
Ffi»ke*s. Sudder O Deen, * I comprehend-
*' the affair : it is pro|ier you should relate this

* to Giinga Guvin Sing, Dewau of the Calcutta

* Committee.* 1 n^plied, < what is the fiuod of

* relating this to the Urwan ? do you yourself

* relate to the Deuan uliat<:ver yoii think

* pro|)€r, but pay attention to my uilvuuiage
' and interest: my atfairs wear a'lery severe

* aspect uith lestitct to administration, and 1

* nm in great ditficulties.' On the igth Pag-
hdon, I Ment to Den an Gov in Siug, and rt>
latcd the conversaiiun to him; to which he
inatle no reply, but went to the Hurbar. On
the Cuih l\i^li(iijn, at 12 uMock, Moonshv

came in : after some CiuiverKalion belwixl tbra,
they totd me, that I should Dot have to swear;
and that I need be under no apprebeiMV*B»N
thai aceouiit : haviug oo reaouree, I ounipM
with I he MfNiDsby's and Dewaa'a deaire, Witt
home and wn>te the petition, whi«:b I kept ly
me : on the S6ih Paglioou, GuDi(a 6uf in Hug
said to me, * You have not yet d«livand d«

* petition, and Mr. Graham is very ab;:rj.abirt
' it ; you ouirht to go immediaicly to the §h

* venior, deliver )our |ictiUfin, and wait a^

* Mr. Graham lo-inorrow, wiih the aacoMi
*• of your ha%ing done so, and 1 wiU be h Xb

* Graham's bouse at that time too.' I ■«!
immediately to the i;o»erni»ry and prntatfA
the petition 1 hwl prepared. When the )S^
reruiir hsd read it, he said to me, * You bm

* written this account in a diffeiest OBsaMr

* fnim n hat Mr. Grabain related it to aw ;*
I answered, * thai 1 had not nieotiuocd mif

* thiiii; of it to Mr. Graham :' the guvrntf
rf p*ied, ' Mr. Graham tnfurmed me, ilHt Mr.

* Fouke told ynu to declare what yuu pve-

* seiiti-d t«i the gentlemen, and what lo ttt

* Muisuddies ; and that, if you did not, iiss

* should be welt puniKhed.' Fniiu the lisr
that Mr. Grdham's hoiionr might suffer; (
ans«cered, * that 1 uiuihl coritfct the |>ctjwi
*■ to the manner iu which Mr. Oiahain bti
^rilaieil lo his honour, and bring it itieitay

* fiillowint;. The gfivemor replied, * ¥«a
' must not put it oft' till to-morrow, write \Mr
' petiiitMi iiiHiiediaicly in this place.' I iwdt

* that I hail not mv Moonshv miiIi ma;' ike
giivfnior an^wrreil, * .My Mounshy is at hio^i

Siiddtr O Dten stmt fur me, and \M me, that j * ilirtaie to him, and let hiin write wh'dt Mr.
the inie:ri.t:aiioiis put to iiic by Mr. Fowke, | Mjr:ihain said.* I was thus €»iiUiMiied li
and my :iii»v«er iijutn the suhjrct uf the Tecka iniiie this |ieiitioo to the guvt* rnor's Mdoufrkf.

C'oriiries iif sail, had iieen re!a:ed to Mr. <tra-
ham hy J)tt«an (iovin Sinir ; thai .Mr. Gra-

uhirh I flelivi-rtd, when fiuished, to the gi
vt-m<>r : liut I obtiiine<l no copy of it. I tk*

ham, vnthout makiiiir any re].!y. had cone to ; declared to him, that a faise oath would
the grveinor, and related tlie wliole rircum- i tin^ ii'sh the huht of my religmu : if tkcM
sianteio liiiii; and. leinrnini: ioliiso\«n house, j shiiuhl he any inierntuauons made to me le*
liati liiifcieii hi in (Suildfr O l)et>n> to stnd tur spectincr the |ie:iiiun. I louid m*! take an oUb
nie, and Uit inc to write a |Klilion upon thi^ ' to it : atiiY bt arin«r this, lie daitnisoed ine. 1
suhjict. ..ml dtliicr it to the go>ern'*r. In ' went i<n tlie v*<ih Patrlinon to Hou^hear Joflf
coi.lorui.lv to MJiat Smlder t> Uetn hail >aid. 1 | ^.^!r. Vaii^iiurt) ; ^hw him the accuuot of iki
drew out a petition, a:-.d sheiteii it lo him : h:iv- • prtiiion I bid delivesed to ilie umemnr, csa*
iiig piruH'd It, he t<M nie to sliew ii to Gtinga cernin'^ the conrtr^aiiou at Mr. Fowlfie's, la'
Ciovin Sinir, a:ul iivike whate\ur dcniuciions to'd imn, that, if 1 were to be »imply inien**
and additions he shiut.! direct me; and added. tr>ki«^l upon it, it was very well; it'iavMik

* what I now tell yai, is b\ the direction oi khould be re^mrpd, that I would noi ir'ive it

* Mr. John Graham.* I shewid the |»4Hiiiun | I likewise said the same to Malia lUjah Rif
to Gorin Sing ; who told uie to wriie it w this | Bullub. 1 have, in this addieaBy rrtord ibi

IIk7:

'] fur n Corwfwwjr agakist Worrm Hastings, esgk A. D. 177S.

[tOU8

trulh af tti\t tnnsariiiin; and Gml's plaaiijiv
bfi rfuoe Willi ra|itcl la tb« ilclvmiiiKitiDU ol
Ibn bMiauiwttIa ^uremtir aiul eauDcil U|ian il.
1 \iaire Bu lUbcr mi^tpni* bui (ioil iiiiil liia Pro-
(ihel, uul ibe gaiil)«iteo i>t ihe cunnoit; Inxii
Ike auiaoiaDMinrni ul^ Hulixcliiii Jwif^ tiiua
to llie preseoT, 1 liara sulad oprlghlly, ttti
line neter M'nie uny of the biiccewlve rul?r»
of lliig voiinlry ullrreil an untrue Ar u
codling Hoiil, I liave here related Uwti
ajiil iihall iiiii'ude nu tVirilier."

" B^nuttT Ghose Vbi' Munudar, by niaan«
ofLalta Aj»i! Hoy, of cerfiiin TecllB Oullaries,
prerrrreil a cainpluiiit againsl me lor live thnu-
■ami uiiiuii<lBur sill ; inconanjuenceorwhich,
tbe i^neral aifiil Tor niv, an<l ilien rrferred me
and BbiU!>m.t Ghuse lo Mr. Fowkf, ilia t ill e
genllemaa miylit inquire into llie csuw. In
l6e course nf llie diiicussiim, Bunabaar Ghose
nid, ' Tbis man Uiib i;'*^" ^amv preaenlt, and

* by Ibis weana ulilaiueil ibe luaioeiti of the
' TecLi CojliirlM ;' Mr. Foukc «»'ul lo me, ' if

* (iiMe be (rue. and you have i^iwca any ihin^
' In any MuUuddie, declare ii ;' I aiuwered,

* that UunBhter Glioie linJ dacUceil hIisI was
' false ; unit thai f bud not made iiny prfSftils."
Mr. Pciube Htlerwsi'dg took iliiwii, in wriliDg,

re[iri'ientarit>nB of boih |iarties ; and then
111), ' I prrfucily roiiijireltend iliis caua^, niid
■liitll relnie it lo Uie general, who will decide
upon il.'"

the

ol ftcve

" UiiBimrable Sir, and Sira ; I (qJm tlw
Itbaty of utvlosiniF tlitre |iMitioiw, wliich were
pill in Ibe linnila uf lay son. Franuii some tune
Moue. lu uanolate, niiti iuiention Ibai lliry
tbould Ik aliprnnda laiil befiire your boaril.
CouMttl All) Cawnwill dewrmine, whetbur be
chiuesla prAcei'd on Ihein petilionaor nol: he
IwB uever ouunKrcnaiided bin former iirUer ;
bul, aa be may oiil acru)ile (o say IhUdy Ibal I
ad wiilHiut biM piiviiy aad eaiwtuit, I bet; leave
ta infiimi yuu, my srile intriidua in laying Iheae
piqtvn belive you is, tbut ibey may lie sitnty
drpoKiteA 10 yuur baiidH, in oaw it «bould^< b<>
tl»uii|;b* neoeaiary beraslnr to refer lo ihsni,
ua a cbnrue ot^ cooaplroey exlnbitod airiiinat
nt« by Comaiil AUi Cawii, Hw whioli' I am
laioad lo hold up miy baud ai ilie har al the
l.tial aenionK of »j'«r and Mxninet and gM>l
d*lFtcry ; the bunooralile Warren H«slii>){a,
pi*eruiir tfcUFral, »nil George Vuiniilarl
e«i)UirFs, lieiui; irty iinwrcnl'irs : bestiles' ibeae
^uilrmro, I wu chorKcd wiili a coaapraey
Uf^uiat Htcliaril Carw'dl, piq. rba Rojatt
Uollitb, and Uabuo hi«lit» KoDi, as will ap-
pear iu II* (UmiDDOl iisiitKl lij the chief jtia-
lice. Mad jiMUcea »r Iho Huproiiie Court of Jii-
dicaturr, dated Ibe lOili day of April 1775. At
tbe claae of tbe evideaoej oa-tlie oalb of Com-

Diaul Alii Caun, Richard Barwell, esq. waved
Ins deioHod for a Inil ; but said, lie sbuuld pro-
secute, or not, a« I'ulure circumKiani-et mielit
»i>|iear. Tbe lEuJuh Bullub and Baboo Ki^hen
Kant, aa I' tuidentanil, nittnlii-w iWir proie-
cnlion eanirrly : IwinK nuiir Ui nae ur fall \if
Ibe law* trf inymuniry, I ahall aanr iMKhiit);
at ibia limp, lu innuaniM aaj himii eitlirr to my
BG))uilt>l, fetl>ln(t trutti la linJ

■■ I an, with the iMHl perfect sabmifsoD,
hoa«ur<fcle 811',. and &n, your fi-rv obnlim*
and litiihAil nerTani, JoaRra l^tnmB."

*' Fart IfiUiimi, 95(* Jj.11/, ITTS."

TroTulolion nf three Arzees, indottd m Mr.
fua>kt'i teller lu the Hwrd of Hmeiiim,
daltd the 35<A of April, 1 77 J.
I.

" ta Ik* Benipl year Itai, at the awl nf tlw
raonib Hauiib, I fariiiril, I'roM tiit KcattraMD'
of the Calcutta ConnulWp. all IlieMilt waib*
i»)he Pur^mnnisbaKt Keura' Uh'I, ^0. Msf*-
jah Mnutvtb, und Dociidaaina, ite. ia ibo
dialHrl of Hedeelee, fur lour y«ara, at an
aKieeineiH of lOO.OOO laaonds <>t salt, lo h*
delivered al twice, at 100 rufieia ; and I rc-
ceiiad ie aitiaiii.'e Hpou rite ai'cxunt liu.560
rupees oat uf Ibal mHU ; ihe Urnaai tiunKa
Govin Sio)^ by en underhand ■elllenarat, pH-.
BUadrd aie lo give hiin 3(i,aoo ruppea, upaa
iliJH aifreemeM, that whatever quantity of nAl

ildc

ified 100,000 imttMlK, be woiilit cawat il tn be
({iven up oil dtc iiaM of pxrernnena, mt lba«
l-slisvlrfi have an npparluni^ nf ih^piiiiagof
time HiJh vberevcr I ahoubl diuie, and' iliV'
proAtashouM' be for niTBelf: Uixin litis Bjpraa<-
inant, Gtmfpi Govin 81111; neonved from ntr,
the finlliiue, 15,000 nipeea in tnohiirs, upon
Ihia undurband sellleoient. In tbe munlll of
Je}'l, 1' made a demaad upnn ibo Oemui Hi
hatte tbo wll ciwo' up; tlie Dewao did' not
^re up tbe lalt, hut InrciMy tiKih from ma
15,000 rupees more, on account nf the lUider-
hand settlemeat: I wai ihneloiw unable to-
pay uirlhe sdvanoe of the sall-wnrbs wjlltuut
a Imlanoe. Tboiesali-workerauuw brine'ibaii<
clairaa agiaiiwt ma, and endravDur lo lay iheir
cnmplainla heAre llie Hussnor. I have braa
vary importunate inth the Uovm ; aod have
repre«eDlrd tn him, ilial I am punr, and un
uoi able lu flillit my •ibIi,c»iioai> Ibr ibe afor«-
aaid sum, and have enlriralt^l liiin lo sHtle il ;
but Ih> paya no reaanl'n wf; nnd I am ulteely
111 a loss where m raiBe tlip money. 10 com-
plete I ha ioreMmcnl, I humbly rerpi^M, Ibat
the afrireaaid Dewtin may bp aammoned ; mmI,
upon titejnstieeiif my ctnini' briii); eata<diibed,
thai be may be orrtored 10 rrlurn toy innnef,
with lbs iatcrest due 10 my cruiliiiH-a upon itr
ibal 1. '3ay be releaaed IVniivlbe im|Kirtunili«a'
of the'lill-ivarkers and my oiliercrediinm. and
IiBTf leiaure 10 complete tbe govcrtHneitt'li in-
rcHlnteet.

Sealed, *' Cu^avl Aui C^om,"

1099]

15 GEORGE III. Trial ofJosejA FtAcke and oihen, [1 109

No adf aotage is derived from Roop Rim's re*
If. maiDing in the district ; but, oo tbe contrary,

ruin to tbe farmer and loss to tbe g^vemmeDt.
1 am bopei'ul that the Aodaulet business may
either be intrusted to roe« or to tbe said Ram
Ram Bhose. It was necessary that 1 should
make this representation to you."

Arzee from Comaul O Dee?i Alu Caun.

*« In the year 1180, Villacty, vrhen tbe Bon-
dobust* of tlie farms took place, a daro^a of
the Audaulet to the llidf^elee district was a|>-
jiointed from the presence ; upon condition
that he should not have any thing to do with
farminfj^, bnt should confine himself to the dis-
tribution of justice, in disputes concerning pro-
perty, and in causes of murder and romry ;
and that the officers of the tanners should sit
with him in the Cutcherry . On these terms,
Ram Ram Bhose was appointed, on the part uf
Mr. William Lnshinzton, and went into the
said district, where he examined in that ap-
pointment for tbe space of one year, and did nut
interfere in the farminjif business ; and even
consulted with the officers of the farmer, in the
determinini^ mattere of property. He did not
interfere, in any manner, with the farming bu-
siness. On account of unseasonable rains that
year, there was a deficiency of many thoussnd
roaunds of salt. In the ^ar 1 181, on the dis-
mission of Ram Ram Bhose, Muddun Gopaul
was appointed in his place ; and, within two or
three months afler his arrival, had committed
such oppressions as prmluced complaints to the
presence against biro from great numbers of
the Rciots ; and there were great deficiencies
in tbe quantity of salt made; and the 8alt
Bangas were not opened at the proper season.
Afterwards Dewan Guuga Gorin 8ing dis-
missed Mudduu Gopaul, and sent Roop Ram
on iiis own part there, who arrived at the end
of Chite, and exercised great oppressions on
the Salt Reiut4. He kept the 8aH Tavildars
and Kialandars two months in chains, and col-
lected 3,800 rupees from them and others in the
name of Dewan Gunt<^a Ciivin Sing. Having
given such sums collusively, how could they,
without piundcriug the salt, make good their
revenue? The said Kiatanilars entered false re-
C4irds in the Dultur, and ilclivered the salt at
such a fthort weiirht, that the surplus, which
was esublished at 54 iM^' |K>r hundred inaunds,
did not amount to 10 luuunilR. He now de-
mands from my renter, on account of the defi-
ciency
every li

olitanied from the (fovernmiMit, and
agreement which I gave, there is no such con-
dition mentioned. At the same rate at which
I deliver it to the goverinnent, 1 receive it
from tlicHi'iots; for I nceivcd advance*: from
the i;overiMiii'iit, nnd paid tliem to Keiots.
The saiil kfiuts having plundert'd the salt, and
made Jilmrt doiivn-ies; if J do n»»l receive it
from the Ucir»tK, from u hence am I to tjivc it ?
] issue an order to the said Dewan, denianding

III.
Arzee from Comaul O Deem Alli Caw5.

" In the month of Bepaack, 1181, Velarpio,
Ranipusand Muckerjee under- farmed the
Tecka Colaries from me, on account of Baboo
licekenace and Nuudee giving Mr. Arcbdeckio
as his security. ]n the mouth of Chyte the
said person complained against me to ihe gen-
tlemen of the council, under pretence of a
claim upon me for the expence of working six
coliaries; by which 1 was put under great
uneasiness for thrcL* months ; but af^er thai
time, baring been unable to establish bis claiia
by the agreement entered into between us, tbt
committee did not find it valid. lo tbe mesa
time 31uckerjee died ; and, during eight months
afiernards, none of his heirs cither came ni^^h
me, nor adjusted settlement of the farm, oor
delivered tbe salt, accordintr to the agrecnieol
executed by the Dewan. The baid gentleman,
under pretence of being the security, bassiocr,
without giving inc intimatiou, distributed Ac
advances in the dilferent purguuiiahs and vil-
lages of the Tecka Coliaries, although I aa
the person who farmed them from govern meat;
and the good or evil, or the profit or loss, which
may ensue, is my concern. Uy what grsRt
has Mr. Archdeckin taken upon himself tbe
management of this business, to the prejudics
of my affairs ? The said gentleman was seen*
rity for Muckerjee, and I have demanded *jpt»a
him. Nutuithstauding, from a motive ot in-
justice, he has obtained pos>es>iion iu the couo*
try, and has complained against iiie to the
council, on account of the advances.

" The said gentleman having been appointed
t(» superintend the salt business, upon liis sr-
rival in the district, instead <if living at the
usual place, touk up his residence at tiie Tack-
fiel Culcherry, nnd pulled down the old ac-

of the overplus of salt, sixty rupt^es for ' comniodations, and liuilt a new one for him-
lundri'd maunds. In the I'oitnh which 1 | self, after turuuig out the officers of the Cut-
in the i cherry. When the officers of the CutclKrrrr

have no place to stay in, what must the chi-
rncter of the farmer he in the country :' Tiic
Zemindar, Uoiois, \c. attend cliieHv' on ilis
said gentleman ; next to hiiii on Uopraui, arii
only wait upon the poor farmer at their lei-
sures. The responsibility lies uiihthe tanner;
but Mr. Archdickiii ext'icises an aiiihor«i\ :
there cannot he three rulers in one ihsuidt
uithout occasioning a loss both to the farmers

of him on uhat pretenrt* Roop Ram kept the . and the Com]»any. 1 am ho|ieful tor jukUi-f*
Kialandars andTuviidars two months iu chains. &c.'' (A true Translation.)

* Literally a binding or ti/ing. It here
seems to mean a stttleiDent of^ the amount of
tlie tftxot.

(SlLIIlt'd) \V. ClIALMEHS,

V" Translator to tbe Khalsi^

for a CiMsjnracy mgmmi Warren HtuiingSy esf. A. D. 1775.

[llOf

EXAMINATION

INTO THE

IM OF ROY RADA CHURN

ivilpgeofan Ambassador, as Vakeel
lrick ul Oowla, Nabob of Bengal.

Court of Jadtcatare. Fort William,
2lRt, 1775. PrescDt, the Honour-
Rubert Chambers, Stephen Ceesar
aistre, John Hyde, Esquires.

3, on the ProsecutioD of Warreo
1^8, Esq. Governor General,

against
)A Churn and others, for a Misde-

•

lief Justice, beings prevented by indis-
'om attendini; the Court, sent them
rin^ Letter and copy of Memorial,
i acquainted them he had received
Sovernor General and Council :

Elijah Impey, knig[ht, Chief Justice,
he rest of the Jud)(es of the Supreme
t of Judicature at Fort William.

lemen ; enclosed we have the honour
it you the copy of a Memorial, which
presented to us by Roy Rada Churn,
i\ of the Nabob Mubarick ul Dowla,
ugt that a bill of indictment has been
and found against him in the Su-
urt of Judicature.

is person is the Vakeel, or public mi*
the Subah of these provinces, we con-
to be entitled to the rights, privileges,
initles, allowe<l by the law of nations
latute law of England to the repre-
I of princes.* We therefore claim
its in bis behalf; and desire that the
2i;ainst him may be void, and that the
jiug out and executing such process
roceeded against in such a manner as
irects.

hive the honour to be, gentlemen,
t obetlient humble servants,

** John Clavering.

** George Monson.

" Phiup Francis,"
e Department, Fort
71 f June 20, l??."!.

** Kxaiuioed, R. S. Sec."

»f a Memorial enclosed in the above :

Honourable the Governor General
Council, at Fort William, in Bengal.
Memorial of Roy Rada Churn.

* memorialist begs leave to rppresent,
IS for two years last past been resident

the Case of Dob Paotaleoo Sa, vol. &,

at this presidency, as ambassador or minister
of his excellency Mubarick ul Dowla, Nabob
of Bengal, and has the charge of all his affairs
amJ concerns there ; and has never, during
that period, acted in any other character or ca-
pacity whatsoever, nor been the servant of, or
directly or indirectly employed by, the honour-
able the East India Company, or any British
subject; and therefore conceives himself no
ways subject or amenable to the laws of Great
Britain, but, on tiie contrary, entitled to all the
priWleges granted by such laws to the ministers
of all foreign potentates or states resident withia
any of the settlements or poasesaions of the
king of Great Britain. That a short time ago
a summons was issued, by sir Elijah Jmpey,
knight, one of his majesty's justices oftbe
peace, requiring vour memorialist peraofiallr
to appear on the then next day, to answer to a
pretended charge of conspiracy against Warrea
Hastings, esquire, governor general, and others ;
and that your memorialist, wholly ignorant of
the nature of such charge, and of the righla
and privileges to which he was entitled by the
laws of Great Britain as ambassador or minister
as aforesaid, attended in consequence of such
summons, and was required to give bail to
appear at the then next sessions of Oyer and
Terminer to be held for the said presidency ;
which he accordingly did. That your memo-
rialist is informed, that a bill of indictment has
since been preferred and foond against him, on
the said pretended charge of conspiracy, which
your memorialist apprehends and Is advised, is
ao infringement of the laws of nations, and of
the established rights and privileges to which
he is by law entitled in the character afore-
said.

" Tour memorialist therefore claims the io>
terference of the govrrnment of ibis presidency,
in support of his said rights and privileges ;
and that such censure may be passed on the
parties concerned in the above outrage on your
memorialist, as the nature of the case may
seem to require. Ror Rada Cburm."

<* A true copy,

** Revenue Department^
«( R. Sumner, Sec."

The Court directed Richardson Mac Teagb,
esquire, one of the masters of the court, to
acquaint the governor general and council with
the resolutions of the Court in consequence of
their letter, which were as follows :

^ ** That the Court is of opinion, that all claims
of individuals ou^ht to be made directly to the
Court hv the individuals, and not by tlie autho-
rity oftbe governor general and council.

'* That it is contrary to the principles of the
English contttitution, for any person or persons
to address a court of judicature by letter mis «
sive, concerning any matter pending before
such court; and that the higher the station is,
the act is the more unconstitutional.

** That the stile of the letter now before the
Coart, teeming to be of the DSture of an order

s

IIOS]

1 5 GEORGE in. Trial of Joseph F(0ioke and oihtri^ [I IM

ratlMn- than |iHttioo, m a stile in i^ich ao court
9f jiMtice wif^t to be adchreMed."

June 23, 1775. Present ail the Judges.

Mr. Jarrrtt, utter ney for the East Ind'n
Omfuiny, ofKpred two papers to the Court,
which, i>e acqwainted them, he was directed to
dciirerfr«Ni) the i«<»TeriHir t?«*neral and council.

Ccurt. We cannot rectrive papers in that
irpe^iiUr nuinner : if you will deltrer the papers
to the cnuHsel for the Company, and he thinks
proper to aoqimint the Court with their con-
ttoiv, we iMwe no objecrion.

The eouiMiel for the Company, ha? in(|f pe-
rasMl the papers, said, hr tmw nothinj^ impro-
per in them ; u|ion which he read them to the
Cewrt, as folhms :

Extract of Connditiimit June 99, 1775.

We have received two papers from your
Conrthy Mr. MacVea(|;h, who, as we under-
stand, came to us as one of the masters in
equity. If he was sent from you in that cha-
racter to us, we muHt observe a want of form
and resfieot due to the cifovernment of this
oouniry, as he came without his usual forma-
lities.

We observe with deep concern, that the
claim made by this ^oveniment, of certain pri-
vileges and immunities in behalf of a person,
who, being a public minister, appears to us en-
titled to such privile;fe8, should be deemed by
the jiidf^es of a very extraordinary kind.

We inform you, that Roy Rada Churn is no
common Vakeel : he receives a considerable
salary from the Soubah of Ben^l, as his pub-
lic minister at this presidency. At his appoint-
ment, he was honoured with the surpeach
dreNS and liorf»e, which are marks of hi^li 4iis-
tinction ; and on the delivery of his credential
to the u^%emor general, he received pauo and
ottar from liim.

We have made such Replies to your Reso-
lutions, as we think consistent with our honour
and dignity ; and we have directed our attorney
to instruct our counsel to move to quash the
indictment, no far as it concerns lioy Rada
Churn, the Soiil>ah*s Vakeel.
A true extract.

(Signed) H. Auriol, Assistant See.

Extract of the Comultation^ June C2, 1775.

\st Resolution, ThattheCourt is of opinion,
that all cluiiiis of individuals ou^ht to be made
directly lo the Court by tl>e individuals, and

the Supreme Court is established) and with
whom the ^vernmenl of the presitlency have
been instructed, since the passiiifr of such act,
to make a further treaty or treaties : for these
reasoas, it was iacambeiit on the K^CTmaent
to make such clsims of exemptioo, on cod-
pfauat to them made bv the party injared, as
would, under similar circumstances, liave hsea
made by the authority of ufoveroment in Enj[-
land. The gfeVemment af this presidency loos^
in all their aegociatinas aod traoaactioas wirii
the couniry powers, becoaaidered ia every re-
spect as iu vested with aoverei^D amlMirity aod
all its incidents, under the express saactioo of
the British laws. The Company have now i
public minister residinif at the court af ibeNt*
bob, Soubah of these provinces. The applica-
tion aow under Gonsideratioh has been made,a
near as circumstances would adnait, in the mia-
ner above alluded to, there not being' in Ihii
country any officer of the Crown or Cominay
invested with powers similar to ibose of his a»-
jesty 's attorney general in England ; who wadd
there have been the proper officer to liavetaka
cotrnizance of such a complaint, on the repre*
sentation of government, without patting tbt
party injured to the necessity of parsooally m
directly making his claims to a court, tbs
authoritv of which be conceives himself ao way
amenable to.

9d Resolution. That it is contrary to tbi
principles of the English constitution, for Mj
person or persons to address a court of jitilkt
by letter missive, concerning any matter peod-
ing before such cciort ; and that the higher Ibi
station is of the person or persons so addremfi

the act is the more unconstitutional. Rrp-^

Tlie idea of an addn^ssfrom individuals seetf
to run throui^h the whole of this ResolntM
also. It is sufficient for us to observe, that the
appliralion made to the C<uirt was not maileby
the memlK^rs who have signed it, in their pri-
vate capscities, but in their political one, 0
constitutiniT the goverument of thisprp^ideDry,
cotiformaMe to the powers vested in the iMp*
rity of the t»ovemor general and council by iha
late act of parliament. The opinion of the Sa-
preme ("oort does not apply at all to the pre-
sent case, how far soever it may be ri^ht as
general principles.

3d Resolution, That the stile of the Irtia
now before the Court, scemint^ to bctd'ibesa*
tiirc of an order rather than petition, is s srh
in which no court of justice «>uuht to bead-
dressed. Replt/, TU'xn Resolution will W

more fully and satisfactorvly answered, bv re*
not by the authority of the jjovemor general feiring to the terois of thie Iipplicatinn, ih.inkf

and council. Rtpli/. The claim in question

is not that of an individual, but of the {govern-
ment ot this presidency, on ln?h:ilfof the ini-
niefer or ie(ireyenUtive of the chief Indian po-
tentate or power, within the province of Ben-
gal, Bahar, «nd C)ri>iMu ; Ixnween whom and
the £aiit India Company a treaty sidisiMed
previims to the passing the late act of pirlia-
ment (under the authority of witich, and his
m^ietly'i charter granted in pursuance thereof,

any remark thereon. The claim of a riirbts
not nn order, either in ft»rm or RotiMaiieri
neither was it our intentiou to address the C«urt
hy petition.

A true extract. H. Auriol,

Assisrant Merretary.
The Court inqn.ired Mhrther either oftM
papers hail any -.address, and were infonaei

ihey had not, ' l.he Courl thcQ returned *•
following

LI05] for a Cortapiratif against Warrtn H<atingt, eiq. A. D. 1775.

[1106

Amatr lo the above Papert.
The Caurt, with Tery great crtncrin, per-
CCJTe. thai a mrssa;;* seal by lli« Artt otGcer of
their Courl, li>r the purpose ul' iirervtiliiig' a
correipnii'leoce, whirh, it carrieil on, mii<t enit
in alterciiti'in, has t)fi psleemed by Ihe Coiiu-
cil a want orrmpei'j in (lie niwle ul' delieerinff
it, aod haK proilut^eil that very allercalion which
it was etiileatl^ iotcndeJ lo pre«enl ; an aller-
catlon which, in ihe Gr»i in^unce, oaghl (o be
■t<i)i|icJ; ao<l thercldre (lie Court nill not
make uae sioifle <>b»i;ri nlion on the want of ail-
drew til Ihe Cuurt, or ihe siihj^cl matter of
(heir papen. Tbuse who first enil a dupiile
whirili iDAy be of «o much cunseq.ience lo lie
piihlic, iu our opinion, acl with ibe mosl di^-
DJIy, and rieaerve beat of the pubhc. Tbe issue
ofthii hutiufSH sriflinieDtly efiDces the impro-
priety of the mode of application by the Go-
vernor General and Council i if the Compiuiv
ihoUL'ht it riifhl to apply. Ihera are but two
modes in which it cuuld properly be done.
Tlioutfh neilher the Cruwa nor the Compaoy
bare aa Allomey General, ihey have a alanJ-
ia;( counsel ; a moliuo ousht to have been
ma'le by that cnuowl ; if (hey <lid not think
proper to inEtruct that couimel, the |iruper
mode wuii by petitirn ; it ia the muile that ihc
charlt^r has preacribeil for llie East India Com-
pany, whose aitenlB thi' Oiivernar General and
Couocil are. Au appeal, uoder the circuin-
•taiices deaerihed by ihe Acl, is a maiUr of
ri^ht : in preterre that decency neceatinry in
B|iplicaliotig 10 his majesiy'i coitri of justice,
Ibe Eaai India Corapaoy, as well as all aiher
appeliaiits, must not claiiu, hut prefer an hum-
ble petiliiin. Tlime are the words of llie

clinr it, there is nuihing hnmiliating in it ; it ia
mere iiiaiier of lurin. This l«ing (hut ex-
plained ; to pre'ent any further aliercniions of
this nature, ihe Court mu-il inform the hoard,
thai (hey cannot (reipecl beinK had tu the di{j-
nhy of his miijenly'a.courl, and to the welfare
of the Ci>iit|mny) reoeire in fulure any letters
or measnic'^ bui in lliat form. IViib respect
Iu the application itself, ibe Courl does not
n it auy question relative to the East In-

dia C..in|.snj having a ji')*ef of recciting
basMtdurs, nor whsl riijht ^mbPsMdoia
fterly «on'iti'ui«l aod received by them tnay be
iniiiled 10. Weoliserve, that Roy lUda Ciiurii
natei in his Menmrial lo the Cuunci) (for what

eaT|i<ite »e know nui), ihal he was called afion
y m ■umntnits issued by Hir Elijah ItDpey, knt.
One of bis roajesty'sjusliceaut'ibe pence. We
mull acqiiainl Ihe Board, ihal, the matters laid
lo ibe cbarire of Rny [Uda Churn lieing of a
poblic nature, and affeetine Ibe Brat member
of ifDvenimeiit in this presidency, the Chief
Juaiice, unuilliii< Iu act aloae, called upon all
bis breiliren lor their assistance ; atid that the
•nnainouB was sii;neil, and every oriter in Ihe
caiiae lawl--. by every one of the judges of ibe
Bupreme Court of Judicature, after maluie ile-
^beraiixo, and au ewiyinMwa \kt,i Uok up •
■ VOL. XJi. ^^^^^^E1^

whole day. Rny lUda Churn was not nl ihal
lime a|)prized of his heinif invrsird wiib ih*
sailed rigbu of nn ■mhussaitor : (hough his
claim iti made very laie, if he is really snd ivnA

Jide invested with nuch riK;liU, they will most
undoubtedty be liluweil him in their full ex-
teal. The claim seemii lerioua, and deservef .
the atlenlion of the Court, as it ia made by the
Governor General and Council; they knutr
the facts upon which ihey claim it i ihe Court .
cannot be auprizeil nf ihem. As wearecnu-
iident llie claim wouhl out he made wiihout
grounds, we shall expect lo he infurmed of tlrs
tullnwiag circumslBoces, wilhi'Ul which »•
cannot lietermine ihi- claim. The iiuesiion ap- '
pears lo u« lo be, whelherihe Nabob Mubariirk
III Diiwliib slanda in such ■ reUiion to the East
India Conipauy, as lo he able to send to thif
precideiicy a public minister, upon whom ths
rigblB of en ambassador can aitai^b; therefor*
we shall eapect that the genlleraen, who mads
the claim in hla behalf, do verify, by affidavit,
that the Nabob Muburivk ul Dowlah is >ikh
verei^n independent prince. That he is in •
aitualion to make war and peace with ihi* set-
tlement. That he is a priuce tui jarii. Tha» ,
lie appoints bis ministers, and pertiirms all aclf
of sovereignly, independently, and without the
contronl nf lliis government. That be is in all
Degocinlinns treated as • priuce taij'ur if. Thesf
are facts within the knowledge uf tbe gentle-
men of the ('0 unci] ; Ihey can verify them;
and if they do not, the Cuurt will uuderstan j
ihal Ihey do not consider bim as princepi tui

jurit. It will be necessary likewike to inquire
who the person is that is aeni as vakeel, or am-
hwuador, and what are his powers. We shall
expect lo have it terilied by affidavit, thai h
vakeel is a public oiinisteT, having the righl jm
revofanili dowHta; where he was coinmoraat I
at the time he was appointed vukrel, and lor
twelve months heiure, tl cujut ditioni fun*
tubdUuifuit. We shall likewise expect it ta
be verifiud by the geuilcmeu of tbe Council,
that they have always treated Roy RDdnf'hnm
as a person investnl niib all those rights wbicli
they claim on his bchulf, and that ihey do in no
res|>ect whaiever consider him subject lo III*
ordi-r or couiroul of this government. Thes»
matters must \x clt-ared up : otherwise Ibe al-
lowance of Ibis claim may he an iulel lo %
grievance much complsineil of, ihe exrrtinn o^
the power of a double gnvtrnment. These cir-
cuiiislBQCCS are pointed sirongly, tbul tbej
may, if puasible, be ohtisled. Analreiityif
mcnliuued in (he pa|rer» between tbe bon ih*
Companv and Muiwrink nl Diiwlab, the CoUTf-
eipect tbat treaty to be laid befuti: them.

Present, all (he Judges.
'arrer. I have the diieclions of ih^ j
r General and Council (o move ihf |
hat Roy R-da Ch.irn, a ■
r iak«N, el Um bldit^ I

1 107] IS GEORGE HI. Trial o/Jaeph Fmke mnd Mm, [IlOl

keeps in pay a body of troopt. From all tbai
circumstances, it is evideot, be it a aovcraipi
prince. I will also beg leove to DeotioD aa
obsenration of the Chief Justice the other day,
which wafi, *' That the annbossador of m pov*
erful jirince would lie entitled to no niora pri-
vilege on account of his potency.'** Theidbrti
fortiori the present wedkness of the SobahsbooM
be no argument why hia aoitMsaadora Amii
not have their privilege ; they ousfat rather «
that account to meet wifh proteciioo IVoai tt
Majesty's courts ofjuitioe. If the Nabob il

Dowlah, may be exempt from a prosecution
commenced against him by Warren Hastings,
esq. Governor General ; and that the prosecu-
tion, so far as it concerns him, may be quashed ;
und that the Court may pau such cemure and
punishment at they shall think proper on tlte
persons who have commenced theprouaition.

Court, You roust specify the censure and
punishment you wish the Court to pass.

Mr. Farrer, 1 did not conceive that to be
necessary ; I lieg leave to withdraw that part
i>f the motion.

(The words in italic we>e aooordiogly struck
out.)

Mr. Farrer f in support cff the motion, said.
That Roy Rada Churn, having being informed
that a prosecution had been commenced against
bim, had presented a Memorial to the Governor
General and Council, stating, that he was a
▼akeel, or public minister, to the Nabob, and
claiming the privilege of an ambassador. That,
in consequence of that application, the Go-
vernor General and Councii had sent a letter
to the Court, claiming, for him, such privilege;
that an answer wits sent to that letter by the
Court, which had produced a ibessage from
the Board ; to virhich an answer had likewise
been sent by the Court. That as the Court,
in their last answer, had said, tliat fliey did not
consider this as any question relative to the
right the East India Company might possess
of receiving ambassadors, he would decline
aaying any thing as to that point.

Court. We have given no decisive opinion :
therefore exercise your own judgment.

(Mr. Farrer then proceeded to make some
observations on the message sent by the Court
to the Council.)

Court, We think it highly improper that
any message from us should be commented
upon by couos^; what was mentioned in that
inessa<re was intended as hints to the gentlemen
who made the claim on behalf of Roy Rada
Churn, of what it would be necessary for them
to prove, which no doubt they have done; we
therefore wiwh you would confine yourself to
what you can support by affidavits.

Mr. Farrer. We have affidavits to prove
every thing that is necessary to be proved ;
what has been mentioned as necessary to be
supported by affidavit, 1 do not conceive requi-
site ; many of the things are what cannot be
aworn to, but which I hope will be admitted
from their public notoriety. First, I shall
prove the Nabob Mubarick ul Dowlah to be a
sovereign prince, and that he exercises acts of
iovereignty ; I conceive, that in all matters,
^here the laws of England have not altered bis
situation, he must be a sovereign prince ; he
exercises criminal jurisdiction Uiroughout his
dominions, and signs the death-warrants, with-
out any controul whatsoever from this govern-
ment. He has exercised the right of sending
embassadors time immemorial. He is pos-
iKiied of a royal miot^ aitd ooiot aiooey. He

not the sovereign, 1 ihould be glad to
who is. Other European eettlements ackaoO^
ledge the sorereigntv of the N^mb ; md 1 fli
instructed to say, that a FreDcbmao if aoi^
under actniil confinement for aome liadawi
nour committed within the provincea. Hi
asserting that the Nabob is not the aovera^^
would he productive of the moat dreadfol en-
sequencea. It would, in all probabiity, Il
productive of a war betweeo us and the aevojl
European nations who have aettlementi widdi
the nrovincea. for, if the aovereigntj if nM
in the Company, all the disputes witbui ttl
provinces must Of course he decided by aa. Il
to the Nabob's being prtncepi suijurit^ ikl
cannot be verified by affidavit ; it is sufidal
if he is received as nuch by bis ewa auljwfc
Rada Churn Roy was invested with the eaagv
of liis office from the Nabobs which was *
tended with an extraordinary def^ree of baow
in the mode of conferring. He receitad tt
letters of credence in Se|itember 1773. B^
Rada Churn baa resided m this settlencfll, ■
the character of vakeel, or public iniiiiilff.
ever since that time, except for an interval iff
few days, from the 32d of May to tbeaoik
Though he should have been dismisani b ik
intermediate space ; yet, if the indictment va
found afterwards, it ought to be quashed. Rff
Rada Churn, by virtue of his appointment. m
ceives from the Soubah a salary of 900 rapes
per month.

The Counsel for the Company, in sepfort
of the motion, produced the foUowing papen:

1st, Memorial of Roy Rada Chum. Copiei
page 1101.

2d. The letter from the Council to the CosiC
which inclosed that Memorial, dated Wk
June, 1775, which had been altered by tki
Clerk of the Crown (with the permissioooflki
Court) into the proper form of a pctiiii*
Copied page 1101.

3dly, The following

Affidavit of Rot Rada Chosn.

" The KiNo,^ at the proaecution of W«MI

Hastings, Esquire,

against
" Rot Rada Churn and otbera, for a Miiii'

meaner.

" Roy Rada Churn, the peison

tioned, maketh oath, that he ta a Hindoo
of th^ province of Bcng^J, and is

E

I] far a Conipiracy agatnil Warrrn Hastings, esq. A. D. )77.5.

t«ro yMr« tiiil upwardB UsI pinl litt bcrn. resi-
dent ii> Calcutu, u Fort Will.mn. ifiireMtJ, «■
the public mioisler, nr *ikeel, of ]Utib«rick n)
]>o«tah, Nabob ut Bengal, Bahtr, aixl O-iui.
(«sce|it for kbiiul (be apatrr of It^n ilayi in Ibe
tuotith «( May bi«l) briI diirKnl with ibe con-
ducling Bod ImnHctiiiK his Bfliiini and con-
cerai wilh Ibe hoonurnble Ibe Eail ladia Com'
pwiy Bnd other*, bi ihe PreBidpocy of Fort
WilliBiD KforeiBiit 1 kdJ (list he receives b
nMtitbty utary nf 900 rupees in vinue of Bitch
bia B|)|H>iotmeiiI Bod DfBce BforeMul ; Bad WBi,
on hi* bcini; invesled therewith, honoured by
bii said mailer Ihe Nabob wilh a CbauX|iaor-
cliBit Kelaul, a ^i-psileh IflBrisMh, a Jaichaw,
ft Call ki|j bee an J lEnrse, b9 eiwiitfos nf tuch bis
■ppoiittmeot and office ; and lliit Uie Siirpnitch
HtrisBBb iTBi lied on ihi* cleponent'a hcail by
the Nabob himself, as b a markofilislinKuislwd
bonour. Anil this rieponenl further naith. ihat
91) his inlrojuclinii to Warren Ilaslines, esquire,
Ibe ihen ^Ternor, is minister, nr rskeel, ai
•foremid, he received from him Iwelle niiit
and ollar, which, this deponent sailli. he be-
liases are tml usually given lo vakeeli of Ra-
^bs, or others of interior rank, but only (o llie

Kjblic minialers, or fakeeli, of the Siibaln,
•bobs, or oiber superior Indian stales and

*' And this deponent fiuUier sailh, llial he is
not, our diiriiig;; ihe |ieri<id fint sJiove written
bu been, in the ■i:rTic« or eniplnymeni of Ihe
WJd East Iruha Company, or ul' any British
•utyect whnmsuertr ; but i« reudeut in Csl-
CUIIB u the public miulaier, or vakeel, of the
•aid Nslmb, ami on im other business wliatso-
CTcr. Anil this depuncnl furthrr saitb, that
there is not now any other minigler, ur vakeel,
.of the saj J Nabob Mubarii^k ul Uiiwlah resideni
In Calcutta, or at the Presidency aforciaid, as
ifak deponent verity believes.

" Sutwctiked, the mark or name of

'■ nuv Ii*i>* Chum."
" Si"»n at Cnlcutta, lliii SSth day ul June,
177^ before nic. J. Htor.."

4thly, Copies of Letters nf Credence, Dis-
iniMiuD, BnJ He-appninlineul, from the Nabob,
add teased to the Governnr General.
Front Ihe Naboli Blaluiriek ul Dowlab, In the

fiuseruor; received the 3^d ut Srpleuiber,

" Boy Uada Churn, who has been honoureil
wilb the B|tpotntinenl of vakepl at your pre-
•enca, an ilie disroissiun of Roy Itamnsut, now
|)rocc*ila to you. He ivili atiend n|iu. ynu fur
■bolransautiunofniy affairs; and your favour
tawsrd him is ijTeaier than I can express."
(A true tntnsistinn.)

.. ..r.. i> ii, pCTsisji Translator."

) the Nabob Hubarirk ul Ilowlali In the

iri receive'l the asd of May, 1775.

Koy Itada Churn has, for some time

tft an idle pcrMp, aud consideiuig hia

being retained as niy vakeel intirely useless, I
have dismissed him from llie 1st of l^uflcr, in
the ISlh Bun (year of his Majesty's relgti) ; and
write ihia for jour iaforniaiioii." (A Irua
traoBlatiuu.) ■> Wm. Hedturm, P. T."

Prom the Tfabnb Miihsrick tit Dnwiah lo iha
Governor; rec rived llie 30th of May, 1775.
I' I some time ago informed ynu, that I hsd
dismissed Roy Raihi Chum, at the aolicitatiun
of Yatebar Ally Caun. As the said Roy ha*
been for a long time employed as my vakeel to
yon, I have re-instaled him; ind I request
that you will shew him the same degree nf
favour *t furoieriy, and pay attention tu wltai-

trsttslation.).

. RBnrEiits, P. T."

' The King, at ibe proseoation- of Warren
llBsIingi, Esquire,

I Roy Rada Cut

olhc»>, for a Bfiade-

" William Rcdfeartt, of Colciitta, genilemnn,
maketh oath, anil mith, thai Ihe Persian
wrilinii, in the paper hcreunin anneKe«l cnn-
lainvd, is a true copy of the nri|,'insl letlera of
credence, disinissii>n, aoi) re appuintment, of

above-named Kny Rada Chu

>Bkeel

lo the >

been tiled among the records anil muniments
of the honourable the East India Company, at
their presidency of Fort Willinni aforesaid,
taken and made by this deponent from, anil
carefully compared with, sueh originals ; and
that he has a knowledge of, and is conversant
in, the Persian language; and that the Eng<
lish tTrilinir, contained in the said annexed pa<
]ier, is B trae ttannlation of the said origitisl
letters, to tlie best of ibis dennneni'* Judgment
and belief." Hictied, " Wm. HEnpEAHS."
■■r^worn at Calcuiu. this SOih day of July,
)7T5| before the Court, J. Pani-ifBRU, Clerk
of the CfOWD."
5. Article* of a Treaty and AaHECKEtrr be-
tween the Goreroor and Counuil of PoK
WiUiam. on tbc part of tlie Eiigli-h Bist
liidi^ Company, and the Natiob Mubarick
ul Dowlah.

On the Part a/tht Company.
" We, the Governor and Council, iln cngaga
to secure to the Nabob Mubsrick nl Doolah,
tlie 8i)ubahdarry of the proviflces of Bengal,
[{ahar, and Orissa, snd tn supiiori him llierciii,
wuh all ihe C'lrapany's forcca, againal all hi*

On tlie Part of the SaM.

Amticlk I.

" The Tr«aty which my father furmnly

concluded wilh the Company upon his first bc-

cewion to IbcNiaantal, engagiDg loirgard lb*

1111]

15 GEORGB IIL

kioiKiT anil repulalion uf ihn Compinj, aoil of
the Guvemor and Caiiocil, •■ hi* own ; ind
Ihkt tntrrtKl into wiili U)V brvtbrro (he Nabnbi
V^*im 111 Di>»l<ihaad'»l}cf 111 Da»)ah ; liie
■aiiie trpaiit^, i>u Tar ■• la JDcoiikutrnt m iili tlie
trui! Hjiirii, iiilrni, bihI (neaniiig tlieraof, 1 do
berebj' raiity ,aod cuufinn.

Abticli II.
" Tlie hiDEf has b«en tirarioiid^ plmrd to
^ranl iintu llie Euj^lifli East India <'niii|>aiij'
tlic DfwaeDrpRliip of iteii^l, Buhar, and
OHiMa, at a l'r«p |pfi Tor I'TEr ; aod I, liavJO|f
■n eiitirr niiiB'leooe id llicm, anil in tlirir ler-
vanlH wllltsl in tliitconnlry, that tiolliiiin whal-
«(rr be pn>|iiiKi1 ur enriiH inlurxecuiioo by
thpni, drriieatiDit from mj hiii

Triai tifJoiepk f<Atfa diii tlHtn, fl^^

Hr. Nmmam. A> eonud on tbe pnatuiliw
agaiMt Riiy Kada Cbgm (togMber iritb atiwn)
for a conipiracv a|caiiut ihe Govemnr Ocnrral,
I ranont out n'ae lo 0p{|pie Uun estnordiawf
■ppliRatiun.

1 undfrKaod Ihe motion ehirfly lo he, Hit,
R<iy Kada Chiirn claiminif th« pririlegra of a
•ubasaadDT, Ihe council, by llieir ftdvocati^
moTca the Ctiurt, that the indictmcai, for a
eoo*|iirary agaiDal hiin, ipaj be qDaataeil; A(
latter par), at Brat mralioiinf, •>' Ihe pi

iDjf puniabeil, bdoft witbiwnwn. la
aupport or thia mutiup, tbe fullowing praya
aitiim* are urged ; via.

Itl, Tlie •oiere'iRnlj nf ib« Enat India C«»
pany. Tbrir puwer lo declare ivar and miki
iuteresi ' p^ce; and coti*r<|uratly to recaTO

liie Kond ul mv iwuntry, do tlitTftbre, for I *"• f""" «*»• '■'•«» puruoae.

iluciint; ilie alfiiln of ilie Soubih- 3''- That Mubinci ul Oowlnb » a Mic-
rriifti prince, pOMeMine the T)){hl of ar~' —

(lieWi

darry, aii'l iirmnoi Dff my Iiod

" ■ "' ' iif ihif Coiiipaiiy, In the

beat manner ambnsaadora, which ri{[ht he h«a alirayai

•Krei-, that (tie pniiminK the prvfiucpa of •^'•^ ■ V'' ''"' '"

Bengal, Baliar. and Oriiiaii, und llic IV
£ie»t fur llMt purpiiiie, hr inlirely li^ft to llieir
dincrpliiinaodijnoilmiiiiaK'rmfnt ; in considNB-
liiNi iif Ibeir pajioi; ibe king Sliah Aalnm, by
monllil^ payiiieutH, an by treaty agreed on, the

acts of aorneip^

■he lolloping inatmcet:
iHt, By kecpiDg a standini^ army.
Sod, And by poweuintc the puwer of wim
Ditlraliogcriiuioat juaiice.

And in behalf of bia eKoeltency, we ira i»

auni ot.rup*M twu lacka aixKfo thuuBand »ix for"""^ o*" '','" •ri'"'""""'' m Vakeel,

butiHreil aud sit, lea aouas, anil nine nice nipeei

i>lU,ei)e 10 91; and tri ii.e Miib^rirk al DOw-
ib tbe aniiiiHl klijieDd uf rii|iees Ihirty we lacka
eighty one tli[>u->and, nine hundred and utnety-
one, nine anuui (31,81,901 9); viz. tbe lum
of rupera filiern lacka, eitfliiy-ooe tliutinand
nine liundml and ninely-aue, oine annaa
(15,81.001 9), tiir my hoiiae, aervanl*, and
other ex|ienees, indiajienaiibly nrcPNrary ; and
Ilie remaining anm uf rupees sixteen lacka
rupees (16 00,000) for ibe BDjipurl uf aucb
■ea|i"iy!i, peunii, anil bercimilasiM, as may be
projier Inr my Hssnarry unly; but oo uu ac-
count cviir (0 exceed tbut aniuunt.

Article 111.
"Tlie Naimb ^linai.h Duwiah, who waa at
tbe inaUnre uf llie ^ntt-rm>r an'i gentlemen uf
tbe roiitieil ap|iiiint*'il Naliub of the pruviiU'ra,
and inteiiti'd nilh Uii- inHnai;ement of affiiira,
in ciinj'iiiniun uiih »»li llij.di Dooliibram and
Ju;;gBi St-at, sliall coniinue in ilie «ame post,
and with Ibe haine aiittinriiy ; ami, having a
perfect cwnlitlein-e in biin, I mmenver agree lii
lei bitii have Ihe disbursing ul' ilie ubuvp sum uf
rujiees (.iiiern laiks, for ilic purposes Ebufe
nent tuned.

, (*

'>)

Signed, VV. HTNxe,Sec.

Gtbly, A iiiiiniiiid f.um t
ficr, ID cuiii<-i)'ieii'e ul a
kinif, cinifiritiillg a I'-mier
pany, I'ur c:niiiii<i[ luunejr
auw M' Ibe Jtiog.

Nabnh iVIeer Jaf-

inisier ; bii briiit; imeiled wiih *tl Ibr loln-
nitiea lunal on the occaiiun ; the puaarMnarf
a aalary of 900 rupees a munth, anil being it-
linguoihed and rereired by tbe gxi*en>or as ■
ambamadur, for that be gate liim ottar ml
beetle nutl. In tujipurttif which laai albp>
tiiins, on behalf of the persun sent «« an ankt-
aaifor, au atfidarit of Uuy RaiJa Cburu it f^
duced ; and we are ' lold, that erery thof
is awurn to which tbe caae will admil ^
wlitch I* ibe only Just poaiiiuD that has kfci
ineniiuncd. and hIiiuIi renders it >ery unofO*-
sary I'ur me tu say more upon the preaeal oc-
<;a»iuii, Iban taking up ihe lule puint of n^tin
the periiin senilini:' the public minister ; M,i
ihatis mil eslalilislieii, tbe right ul Ibe penN
ceni ceases uf course ; and it is imtualtri^ !■•
far tbe pernuns lo wbmn aucb aiubastjil'ir li
sent are veKleil with the power of receiitng «

On ihe first applimtion of Ihe cnuucil on lU
ociMsian, yuur lunlnbips anijuuncnl five ihinft
ueceasary In b« established liy aflidutit, iu uf-
purl of tbe claim on bebull of Muhanck il
Diiwlah, ibo peioun ending a public mtaitkti

lit, Thdi ftlubariik ul UuwtaL is a hk-
reigo indepenili'iit ]n'iiire.

t<\. Thai be ia iu a siluatinu to be aUt »
make wnr and peaie m lib this Keitleineiil.

Silly, Tlisl be isy'rincfy.j ivijari*.

4lbly, tliut he a|>fji>iiils his uiiniatera, ei
(leiliirnis all autiuf Kivereignly, lodepeoilrBtlt,
and wilbnut ihe conlroul nl Uiis guterumML

3ihly, That be is In all aegotiaiiuDi ttcaoJ
as a |inucF $uijuri*.

Ill kuppnrt of whirb facta, inalrail of Mf
affiilaiit Ixing jirudiiced, ilie iniuiMR'a Mf
poaed letiersufcredeiicearB lead; andaMair
of 2UI of Jttarcli 1770, between Ac HiMw

€ I IS] for a Con^mey agtutut Warren Hattings, e$q. A. D. 1775.

[1114

the Company, exhibited ; bj the latter of
which it is ?ery obfioas, that the two first re-
quiaJtea for eatabliahiuf; the claim are disproved,
aod the dependency of the Nabob on the Com-
pany fully established. Instead of being able
to make war or peace with this settlement, the
Com|>any agree tu anpport him in his subah-
ship with their forces, and to allow him an an-
nual stipend of rupees 31,81,991 9^ which they
think nroper to make the disposition of, by set-
tling the expenres of his salary, by limiting the
number of hii peons, seapoys, &c« They sti-
pulate for the continnance of the then officers
and ministers in their jtosts, and expressly ap-
point one of those ministers to ha?e the dispo-
sition (iu the manner therein mentioned) of
one moiety of the money at that time allowed
him by the Company ) which stipend, so al-
lowed him, was in the ensuing year^ by order
of the court of directors, reduced to the sum of
16,00,000 rupees per annum. Will thene acts
and p<»wer iu the Company shew a sovereign
independency in Mubarick ul Dowlah, and his
being able to make war and peace with this
•etilemetit? Do ihey not, on the contrary, in-
contestibly prove, not only hia dependency on
the Company : but that, though nominally a
Nabul), he is in fact no more than an instrument,
mnd may be deemed an ageut of theirs? It does
not appear that he ever thought himself a so-
vereign prince, or till on the present occasion
ever ctmceivefl he had a right to send an am-
bassador, Hhich be could only now have been
prompted to by some friends of Roy Rada
Churn, in order to lend him an assisting band
OD so preraing an emergfr ncy F

The uul^ presumptive act of sovereignty
▼eate<l in or exercised by Mubarick ul Dowlah,
la his signing the warrants on capital convic-
tiocis in the presidency Audaulet court, before
they are carried into execution ; but even this
is a delusion: and political motives in the Com-
pany, when they created these courts, induced
them to vest this power in him, which wilt be pre-
eently fully explained ; and we shall shew the
eoostitutmg the courts, and administering crimi-
nal Justice, to be s«ivereign acts of the Com|>any,
sod not of the Nabob. As to the Nabob's stand-
ing army, announced as an instance of theso-
▼ereignty of the Ntibob, and of which, though
we are informed by the counsel, there is not
4Mie jot of proof; your lordships will find his
nrmy a very in<»ffensive one ; for it is no other
than bis swarry, of which the .number of sea-
poys and peons is limited hy the Company:
nor can the Nabob have occasion for an army,
who has no possessions to lose, and who is pro-
tected iu the place he holds by the forces of
another power, which the Company, by the
treaty which has been produced, have under-
taken to protect him in.

That Mubarick ul Dowlah is not a prince jiii
jur'u^ will not bear a moment's contention.
ilia being a Nabob would not make him such,
If tie bad obCainetl his Subabship by the regular
Jine of appointment from the Rdogul, whote

-'^ — njiabob oiigtiMlly wasi leopocarily

created to superintend the afisirs of a province*
and was removable at pleasure ; but there has
not been a lawful Nabob since the death of 8a «
jab Caun, which hapi»ened in the year 1739.
It is well known that Mubarick nl Dowkih is a
son of Meer Jaffier, the Jammada, who was
created a Nabob by lord Clive ; from w hirh cir-
cumstsnce, ttie idea of a prirtceps mi juris ceases
immediately ; and 1 believe, alter what has
been shewn, will presently ap|)ear more fully :
I need not suggest that the Company, in their
negociations, have not treated or ever const-
dered Mubarick as a prince tui juris; so that
there does not appear-the least pntot l»efnre the
Court, of any one of the five requisites declared
as necessary to be established, or a ground for
a supposition of sovereignty in the person said to
creste and send the public minister or arobas^
aador to this settlement which renders ii* unne-
cessary for me to consider how far the Com-
pany have or have not an unlimited authority
for iltnding or receiving ambassadors. From
the deficiency of evidence in sup|)ort of the pre-
sent claim. It is unnecessary on our parts to
produce the affidavits we have obtained, to dis-
prove what we thought might have been, at-
tempted to have been supported : but in order
to convince ^our lordships how ill-advised and
ill-irrounded the claim is, we shall evince, by
the affidavits of the Governor General and other
fientlemen of the old council, that Mubarick al
Dowlah is every way de|>endent on the East
India Company, who appoint his officers and
servants, allow him an annual stipend, and
themselves possess the entire foininand of the
military power of Bengal ; that he has neither
a seapoy to command, an inch of land to eujoj,
nor a rupee in his treasury, more than what
the Company may think pn>per to allow him ;
and although the criminal courts were nomi-
nally the courts of the Nabob, 3^et that these
courts were created by the Company, in the
month of August 1779, by tlieir own auihority,
without consulting or requiring his concur-
ience ; and the mode of the said province, set-
tled by the late president and council, to be
under the inspection and control of the Com-
panv's servants.

With respect to Roy Rada Cham, who is
taught to swear himself a public minister, I
believe it never entered his imagination before,
that he was more than a common vakeel ; nor'
18 a public minister ever cou8titute<l by that
name ; for at the court of Delhy, where am-
bassadors are received, and a real , power is
possessed of creating them, they are distin-
guished by the name of Elchee ; and by the
affidavits before mentioned, it will sppear from
gentlemen long resident in this country, a
vakeel was never looked upcm as a public mi-
nister, or entitled to the rights of an ambassa-
dor : hut even suppobing, for a moment, the
creation was legal anil regular, and Rojf Radm
Chum actually had been a public minister ap-
poifited in the year 1779, it appears, and is ad-
mitted, that lie was dismissed by the Naliob i^
MUowOQtbeSd of April, 1775| and is

1119] 13 GEORGE Ul. Trialtf Joseph FMkeMndoiheri^ [IIW

toot K^admitted till tome time in May foUow-
io^. Id the intermediate time between bis dit-
mNMion and re-aupoiatmeni, tbe crime for
which he is indicted wa» committed, ditco?ered,
and a prosecution for il actually commenced ;
•0 that his excellency's amhasaadorial claim» if
there was a ground for it, would stand him in
BO stead on the present occasion, and it only
exposes the wishes of those who prompted him
to make it. I therefore hope your lordships
will dismiss tbe motion, with costs.

Mr. JBrix. Mr. Newman has so fully ob-
■erved on the insufflciencv of the e? idence nro-
duced in support of the claim, that I tbinlc it
unnecessary to add aov thing to what he has
•aid on that head. 1 snail therefore proceed to
point out the definition of an ambassador, as I
find it laid down in the books, which will in-
contestibly prove that Roy Rada Chum cannot
be considered in that light ; and then proceed
to shew, from the nature of the Mogul go-
▼emmeot, how far the Nabob Mubarick ul
Dowlab comes under the description of a sove-
reign independent prince.

Ambassador is a person sent by one sove-
raign to another, with authority, by letter of
credence, to treat upon affairs or state. Coke,
4 Inst. 153.

It is therefore requisite, thst the person who
ealts himself ambassador should be sent by a
king, or absolute potentate or state ; and that
he should have leltersof credence from the
sovereign by whom he is sent, containing his
appointment and instructions. Coke, 4 Inst.
ISS.

Therefore one who hath not sovereign autho-
rity cannot send an ambassador to another,
lb. Grotius de B. & P. I. ii. c. 18, § S*

No subject, though he be very great ; nor a
Viceroy ,in whom it would be high treason. When
the Scots (inconsultoprincipe) sent Lowden and
others to Lewis 13, to treat in the name of the
whole nation for assistance, he would not re-
ceive them. Queen Elizabeth, in like manner,
refused to receive CImstopher Assonville, sent
to her in quality of minister of state from the
duke of Alva, then governor of Flanders, he
having no commission or credentials from the
king of Spain. Molloy, de Jure Mar. 120.

It is the actual exercise of sovereignty that
gives the right of sending ambassadors ; inso-
much that kioKS, tliat are conquered in a de-
clared open war, lose that right, together with
other privileges. Grot. ib.

The principal rights of sovereignty of which
theSubah Mubarick ul Dowlah must be pos-
•essed, to give bim such a relation with respect
to the India Company as to enable him to send
any person with the privilege of an ambassador
to this presidency ; are, 1st, That he is a so-
vereign mdependent prince : 2dly , That he is
in a situation to make peace and war with the
settlement: Sdly, That he appoints all his mi-
pisters, and exercises all acts of sovereignty,
independent of any other power, and without
the oootroul of this government; and lastly.
That he ii.ia all DegodatioDs conaiderad and

treated as princept tat jurtM^ Lat M aee hew
far the Siubah Mubanck ul Dowlab oosMa
under this description.

Whatever the forma of govemoient in this
country may have been in earlier tiasea, it is
notorious, that, since the establishment of the
Mogul empire, Bengal hath been a provinoa
thereof. The Subah of Bengal, daring the
time that the empire continued to maintain its
original vigour and strength^ was no more than
the king's viceroy or governor of Bengal, Ba-
har, and Orissa : as such, he had tbe com-
mand of the military forces for the defeoce sf
the provinces, and the adminiatration of crimi-
nal justice. The branch of tbe rercnae aad
justice in civil matters was intrusted to a dis-
tinct office independent of the Subah, vis. The
Dewan of the empire. In progreaa of time, as
the empire weakened, the Subahs grew stronger^
and appropriated to themselves the revenue si
the provinces ; but even in the weakest state sf
the empire, the Subahs always acknowledgfd
the emperor as their sovereign, styled them*
selves their servants, and tooK tbe invesiitum
of the provinces from them.

It is, therefore, by usurpatiou only that tbcj
at anv time exercised the rights of aovereigalj;
but these, I apprehend, entirely ceaaed with
the expulsion of Meer Cossira Ally Cava.
Meer Jaffiar, whom the Company placed ia
the Naziinut, had only a shadow ot power, sad
not even that shadow remained with either of hit
children.

The present Subah Mubarick al Dowlah ii
so far from being an independent -prince, tbat
be is in all things dependent on tiie Bogliik
government. They alone receive the reveasci
of the province ^ be has only a pension of 16
lack of rupees for his support: so far from be-
ing in a situalion to make peace and war, be
cannot even raise the smallest body of troopi,.
nor hath he the appoiutroent of any offioen.
Tt is in evidence before the Court on a lite
trial, that Rajah Goordass Roy received tbe is-
vestiture of Dewan to his household from Mr.
Hastings, when at the bead of the late admh
nistration, and the same hatli been confirmed
by the present governor e^ueral and council.

The late act of parliament, and the charter
by which tbe supreme court is established
clearly evince, that, in the eyes of the Britiib
legislature, the provinces of Bengal, Bahir,
and Orissa, are considered as a^ conquered
country, in which the conqueror hath a right
to introduce his laws, and make them obe3ed.
How can he be called a sovereign indepeo«lfnt
prince, whose subjects are at liberty to eva^
his civil or criminal jurisdiction, by becoroial
directly or indirectly the servants of the £o|*
lish Company, or of any British auliject?

ApFiDAvrr of Warren Hastings, Esq. ; Ge-
vernor General of Bengal.

This deponent maketli oath, and aaitb, 1W
the late president and council did, on or d
tbe month of August^ 1772, by tbcir own

^Ill7] Jtrfl Coniprecr/ a(;ain3t Warren
tlinrilv, >|)potDl Mnnee B^nm, relict of tlie Isle
Kabflb Mc«r JaSirr Ally Vav>a, to l>e euirdian
or liiF prcscDl Nibob Miibarick ul Uowhh ;
aoil (tajt G'H)r<taM, ton of itlahn Rajah Niiti-
docuiiiNr. 10 be Denao <>F llie laii) Naboti'i
hniiwlinlil. sliowing to llie giid Manee Bc'
^iim ■ Hilary «r 140,000 rupees per aaoum ;
■ nd to (he Mill TlBJa GiionlaM, for bimseirand
officen, a salary or 100.000 rupees per Bonum.
That tbe sail) late preiiJent and council did, no
oralraul tlie oionih of Aiigost, 177?, plan and
rouKtitiile rei;ulnraad distinct courta of justice,
ciril aod criminal, by their own authority, for
adfiiinistraliuQ of justice to tbe inliabilanls
IhrouRhoutBen^, nithautcooaullioglbeMid
Nabob, or requiring hia coDCurreoce ; and that
the said cif i1 courts were made solely depen-
dent on the presidency of Calcutta ; aod the
•aid criminal courts were put under the in-
•jieelion and conlroul of the Company's ler-
Tsnts, although osleoiibly under the name of
the Nazim, as apjiears froni the lullovring el-
iract* from the plan of tlie adoiinisinitinn of
jutoic^, constituted by the prciidenl and cuuo-
eil.

" Article I. That in each dialrict shall be
«il>bHshed two courts of juHicalure; one by
the name nf the lyiuBussul Sudder Auitaulel. or
Proiinctal Court of Dewanne*, for tbe coi;nl-
|knee of citil causes, the other by (he oame
T Fbousdance Audaulet, or Court of Phous-
iaoe, for (he trial of ell crimes and roisde-

H^ Article IV. That in the PhonsJauce Au-
, the cauzee aod muftee of ibc dislricl,
Itwotnoulafyn, shall sit lo expound the lair,
■ determine how lar the delinquent shall he
Ihy of a breach thereof; but that the col-
lorihall also make it his buniness to attend
tA the proceedings ofihe court, so far ss to gee
■hat all necessary e*ideiiceB are summoned and
vianiined; (bat due weight is allowed lo Ibeir
tetlimuny ; and Ihal tbe decision part ia fair
mnd impartial, accordins; to (heproofgexhibiiiKl
in (he course of the trial ; and that no causes
•hall be heard or Ivied, but in the open court re-
IfuUrly ahsembled,

•• Article V. That, in like manner, two su-
preme court* of juBlife shall beesiablisbed at
Ihe chief seat of goiernmenl, tbe one under
K Jke denoiniuHliun of the DewaDee Sadder
hto^aulet, and Ihe olher ihe Nizamut Sudder
■^daulet.

P*** Article VII. Tliat a chief officer of jus-
' ifee, appointed on the part of Nnzim. shall pre-
side in (he Nizamul AuJaulei, by the title of
Darroga Audautet, asaisted by lhe*cbiefcaiizee,
ihe chief miiftec, and three capable mnulivys;
that their duty ahall be to rciiae all proceeii-
iii|[S of ibe Phouidance Audaulet in capital
CAaes, by siKoil'ying Iheir approbation or diaap-
probation thereof, willi their reasons at iar^e,
la prepare the aenlence for the warrant of the
Naxim, which shall be returned into Ihe Mo-
•mwul, and Ibere carried in execution. Thai,
with mpect lo (bin court, a similar conlroul

Hasllngt, etq. A. D. 1775.

[ins

is rested in Ihe eolleclara nf the dtsliKt*; •»
llui the Company's idminiitraiion. in chanc-
ier of ibe IcinK's bewan, may besaliafied thml
tbe decrees of justice, on which both tbe wel-
lapp and talrly of Ibe country so msierially de-
penils, are not injured or pervcrccd by the eVfMta
of|>BrliHlilynrcnrruplinn."

And ibe said deponent further aaiib, Thai h*
liebefes the ntiove to be true extracts from (he
■aid plan of adminisiralioo of jusiioe, as enlered
in in the cons uh a lions.

Tbe said depunenl further sailb, Tlial Ihe
mansgement of Ibe rcteauea of the said pro-
Tince of Bengal has hir some years past been,
and DOW is, entirely iu the hands of (he East
India Company, and their reprewuiatites in
Ibis coutttrv, wilbout lbs smallest parti cipat ion
of (he saiil Nabob. And thla deponent further
sailb. That, iu cooiequcnce of ordera from the
Cuurl of Directors, daled in April 177 1. iha
annual stipend ftllowed to the said Nabob Mu.
barick ul Duwla was reduced from the sum of
3t,81,e9t,9 rupees per annum, to the sum of
1(1,00,000 rupees per unaum.

And lastly, tbe said deponeot aajlh. That
he believes all the above faets tu be publicly
known, as lliey are particularly set lorth in &
printed book, enlitled, ■• Repniis from the
Commillee of tbe House of Commons."

day of June, 1775.

:. I.111-

AfFiDiviT tn Geohcc VaMSHTjUiT.

" This deponent makelb oath, and uilb.

That, to Ibe bmi of his kuowlntge and belief,

Aliibarick ul Dowla, ibe present Nabob of

Bengal, is nol a soverei^'n independent prince,

lo make war on tbe East India Company or its
B««lltmcuu. That Ihe said Alubarick ul Oowla
dues nol appoint hi* own miiiislera, nor per-
form oibflr acts of sorereignty, inde|«ndentlv,
and without (he consent of the representatirea
here of the East India Cumiiany. The said
deponent further sailb, Tbai (be whole miti-
lary power of this province of Bengal has been
for several years pasi, and now is, solely and
entirely under the command of ihe said Ea«
India CiiinpaDy and their repreirnlalives, with-
oul being in the small'^al deforce under the con-
lroul or induence of tbe laid Nnlwb. That
Ibe Bole mauagemeni of the revenues of the
aaid province has also been for some time past,
and now is, in tbe bands of ibe renreseuUiive*
of the said Company, wiiboul the least partici-
pation of the Nabob. That a mode for admi-
niitration of juBlice both ciril and criminal to
the inhabiunta of Ibe said province was settled
by Ihe lale presicleni and council, in or about
ihemonlhofAugustlTT?, by their own autho-
rity, without coosulling lbs aaid Nabob, or re-
quiring his concurrence; and that that plan
was carried into cieculion, by which the civil
courts ibrouehoul ibe province were put en-

1U9J

15 GEORGE III. Trtdl ofJoupk FcnJce and others. [1190

criinioiil conrti under the inspection and con-
trol of the Company's servants, although the
'Utter were uominally the courts of the Nab<ih.
** That, in the year 1772, the said late presi-
dent aiul council did, by their own authority,
appoint Manee Beifiira, rehctof the late Nabub
m^f Jatner, to be guardian of the present
Nabob; and Rajah Gonrdass, son of Malia
Rajah Ntindocoinar, to be Dewan of the Na*
bob's household ; and by their own authority
ap|K>iuted salaries to the said Manee Be^i^uin
and the said Rajah Goordass. Ami tlie said
deponent further s.iith. That, in consequence
of onlers from the court (»f directors signitied,
he is intbruied, in their letter of the 10th of
April 1771, the annual sti|iend of about
S2,00.000 rupees, a^ret-d to be paid to former
Nab.)bs, and to tiie picsent Mubarick ulDowla,
was reduced to 16,00,000 rupees per annum.
. '* The said dep«Mient furttiersHith, That, dur-
iogf his residence in India, he has never under-
stood thata persitn residint; under I he denomina-
tion of vakeel, was a public minister, entitled to
theri{;hts of amitasbadors ; but conceived such a
person to be liable to the local jurisdiction of
the courts civil and criminal where he resided.

(Sit^iied) *' George Vansittart."
** Sworn belore iiie, ilie 87 tb day of

June, 1775, S. C. LEMAisraB."

Two other Affidavits were read, one made by
Mr. Hurst and the other h^ Mr. Lane (both
members of the late connril) in exactly the
iame words as that of M r. Vansittart.

Air. Farrer. There has not been the least at-
tempt to prove that the rij;>;ht of these provinces
is not in the Nabob Mubarick ul Dowlah ; his
beinflf diverted of the power is no ar<rument
against his poksessinjf the right of sovcreii^nty :
1 thiref'ort' hope, that he nill meet with full
protection from tins Court, and that his vakeel
Kada Churn will be allowed the ri^ht of an
ambassador.

Chief Justice. You are hard pressed, to
make use of that argument: the Coin|)any
will not thank you fur statin*; the rij^ht to be in
Mubai'ick ; for, if it is, the exercise of the
power must be an usurpation in the India
Company ; but I do not take it to he so, for
the treaty uhich you have produced is a sur-
render by him of all povicr into the hands of the
Company.

In the decision of this question, it will not be
necessary to euier into the common-place learn-
ing conoernindf the rights of ambassadors, nor
10 what manner they have been sanctified, not
only by the most polished, but even the most
barbarous nations. All nations, who have had
intercourse with others, ha«e held their cha-
racters sacred ; the rights of ambassadors, as
far as they relate to the question before us, /ifi
revocandi domum^ are clearly established by' a 11
the writers on the subject; nor will it he ne-
cessary to decide, whether the £ast ln<lia Com-
pany nave or have not a right to receive public
■unittcn, upoa irhpoa iU the righta of awbas-

aadora will attach : they are authorized In inaka
treaties,^ war, and peace, with tlie country
powers in India. It is most certainly uccfs-
sary, that they should receive affenia firum tboie
powers, for the transaction of their public bn«-
neas: I do not absolutely say, that it is a con-
sequence, that those agents should l»e put in
the situation of foreign mioistera at Europcso
courts ; nor would I by any means be under-
stood to put a negative upon it : it is not ne-
cessary in this case, and perhaps no case may
ever arise wherein it may be necessary, to de-
termine it. I give no opinion about it ; and I
desire that may be clearly understood : then-
fore, however this case may be detenuiofd,
the dignity, honor, and powers, of the govcra-
ment of this settlement are safe : tbey are sof
afiectetl by it : the Court will alwa} s support
them, when they are fairly^ openly, and legally
exercised. There is enough and etiouip h to de-
termine this claim, without entering into thil
question.

But, though the rights themselves are dearly
established, it will be proper to conaiiler thetras
and substantial reason that has induced tbsl
common consent of nations, which is called the
ju$ gentium^ and gives sanction to them. Ose
reason, and a common one assigned, is, Ihil
they n»present the person of their prince, ail
carry his majesty about them ; and tbcrefim
their persons must be sacred : this is ratberi
captivating and dazzling than a substantial rrtp
son ; it is a fiction. No nation was more dii-
lized than the Romans \ no nation (with voj
few exceptions) was more attentive to the pn-
vileges of ambassadors ; yet mere sacredoefl
of person did not, among them, protect fisa
justice : the vestal virgins, the tribunes of tbe
people, the high priests, the ponlifica muim
(unless actually officiating) and all others, «b»
had nothing to protect them but the sanctitv of
their persons, were subject to tbe courts of jus-
tice : I do not recollect any claim made simply
on that ground, but the exemption claimed by
the popes for the Romish clergy, < |»ersoBi
\enim quantumvis sancta sola in jus vecatiooe

* non violatur.' There is another fiction, ibal
ambassadors are not considered as within the
territory of the prince to which they arc seat;
this and what 1 before mentioned are not prs*
perly reasons, but tictions, formed to Katisf} lbs
reasonings on the municipal laws of the coua-
trics to which the ambassadors are sent : lbs
true and substantial reason is derived from tbe
necessity of protecting persons sent on maieriil
business, in which the public is concerned *, it
is, ' ne ab officio susccpto legation is avoceoliir,
' ne impediatur legatio. ne prohibeautur pub-
' lico niunere fungi ;' the main ^reat hiisiiiH^
which chiefly npe;utes to cfive this right, i^
that of making treaties, more espt*cially sucb
as concern war and peace, * f)MiH paris etf<Bd^
*■ rum sunt nuntii el proxenetu;, et s;»e his ^v^

* lium so«:ieta«i et Hinica quics salva es!%e nrqisL*
Amun:; pouons capable of making real ireaije^
anil making %iar and pi-iioe, it is aba<ilutrly le*

cestitry that thiir^ Khgui(i lie inun

I

1191] fortt CoHspiraci^ against Warren Hastings, esq. A. D. 1775.

[1 122

agents, whose pertom should he protected even
from the Iftws, lest the laws should be made
the lostrament ofdefettiRg nenrociaiions, which
tniKlit be of the utmosit coDsequeace to the
state ; otiierwise nations must li?e in eternal
war, or iu insidious peace ; for if there were
not peraom, harbintj^rs of peace, who oonld
with safety come to the opposite party to pro-
pose p<*ace, anil the terms on which it should
Ha held invi«>lable, thoui|^h the conteDding^
powers were each peaceably inclined, the
horrors of war must continue ; and when they
ware tired out, an insecure armistice would
lake plaee, to last no lon^i^er than till one of the
panias had rpoovered strength and spirits snfB-
ekfiii to renew hostilities. It is from the real
bcmaass between nation and nation, not from
My representation of supposed majesty, that
tbcir rights are substantially founded. Is Mu-
parick nl Dowlah, or was he eter, a prince in
I aitnatlon of transacting any public business
if consequence with this settlement f Is he,
^rom the evidence before us, capable of making
iraT and peace with this settlement P If not,
ibnugh there may remain in him a shadow of
naieatv, 1 think no sanctity of pertnn can be
lerived to his Vakeel, which will be sufficient
la give him the rights of an ambassador : for
bin reason 1 threw out, when this was before
neiitioned, what 1 thought would be necessary
ar the governor general and council to make
iflt, before they conid support this claim : I
[ill it, that if they could not make it out, they
aiffht have an op|iortnnity of relinquishing a
lam, which I was fully aware mnst embar-
aaa them ; they have chosen to persist in it,
nd to force the Court to a determination on a
oeation, which their counsel states to be poli-
eal ; and that to protect a man, charged (whe-
ler properly or no, will appear when the in-
ictment is tried) with a conspiracy against the
rat man in this settlement, the governor gene-
i1. Whatever my opinion may be, the gen-
emen of the council must have been clearly
Ml ri need of the justness and indispensability
r tfae claim ; or in such a case, I am sure,
lejr would not have made it.

We have said, it would be necessary that the
arernor general and council should verify, by
B^vit, that Alubarick ul Dowla was a sove-
t|gii prince, in a situation to make war and
saee with this settlement : that he was $ui
\t^ ; that he appointed his own ministers ;
\m% lie performs ail acts of sovereignty inde-
■inlently, and without the controul of this go-
muneot ; that he is in all negociations treated
I WL prince tui juris : that a Vakeel m a public
iniater, having the ju$ rtvocandi damum:
At the governor general and council have al-
■ya treated Roy llada Churn as invested with
e rifcfito which they claim for bim, and that
ley do not consider him subject to the order
Kl eontronl of this government: no inch affi-
itU baa been made; I should have been
lueb avrprised if there had ; but the reason
hren fof want of the affidavits is not the true
M ; namely, That the facts wotild not bear

VOL. XX.

them out : the reason given by their counsel
is, That the governor genersi and council could
not make the affidavits required, bccaube they
are a corporation.

I cannot imagine from what confusion of
ideas this notion has sprung ; in fact, they are
no corporation ; if they were, could it enter
into the mhid of any man, that it was sufficient
for a corporation merely to make a claim, with-
out supporting it by proof? to (ling a claim on
paper into court, antf leave it to establish itself
without evidence P Though a body corporate,
fua corporate, cannot make an atfidavit, each
mdividnal that composes it can : in fact, the
governor general has : the indiviituals, if the
fkcts would have borne them out, might, and I
have no doubt would, have made the affidavits,
especially as the Court had informed them, if
they did not, the negative of the question put
woald be taken pro conf'etso. They have Hoi
even sworn, or given any evidence, that they
themselves do now, or ever have treated Roy
Rada Churn as a person invested with the rights
they claim for him from us, nor that they do
not consider him subject to the order and con-
troul of this government: is be then to be
treated as a public minister, merely to elude
justice, and in no other respect to be so treated f
I have little doubt but that this man was ori-
ginally appointed by the influence of the late
administration; and am not surprised that
those who form the government of this presi-
dency, which undoubtedly, exercises authority
over the master, cannot swear that they do not
think the servant liable to the controul of the
government of this presidencv.

What has been prodnced m support of tliia
claim ? A paper which In called, a treaty with
Mobarick, a I^unnud of Neer Jaffier Ally Kaun,
the affidavit of Roy Rada Churn, and two let-
ters to the governor general, which are called
the credentials.

The treaty indeed, by its first article, nomi-
nally guarantees to hitn the possession of Ben-
gal, Bahar, and Orissa ; but by the other arti-
cles, all power whatsoever is taken from hirai
nothing is left him but an empty title, and
81,81,991 rupees annually ; even that sum it
appropriated, all but 16 lack, to his household ;
and it is expressly stipulated, that the remain-
ing 16 lack should be expended by the officer
named in the treaty, in maintuining the peons,
&c. of his swarry. He is thereby obliged to
keep up the ensigns of power, and maintain
the outside pomp of a pcince, by the very in-
strument which is an actual surrender of hia
sovereignty, if he was, which is not in prooT,
ever possessed of it.

It was stated by the counsel st the bar, to
induce the Court to believe that the military
power, that substantial evidence of royalty,
was in bis hands, that he kept an army on
foot: what does it turn out to beP a mere
swarry, to keep up ofteiisible pomp, and make
him appear what ne is not. It is a miserable
attempt to impose on the Court. As to the
Bannud of Hecr Jaffiofi that is produced, ta

4C

1 193J 15 GEORGE III. Trial of Joseph Fmke and oihers, [1 18(

sbew that Muharick has a right to a miot, ano-
ther mark of sovereignly : does it prove it ? It
proves that the East India Company had exer-
cised the right of coining money ; and what
they posseMed 'More, is confirmed to them by
the grant of Jaffier. By what authority the
East India Company daimcxl it before this
grant^ does not appear ; it does appear they
exercised it : but tnough Meer Jaffier might
be a sovereign, how is Muharick connected
with him ? no title has been attempted to be
derived, nor any succession proved, from Jaffier
to Muharick. Is there any proof that Muha-
rick ever coined money in bu own name ? He
certainly did not. All this is mere colour, and
•o faint that 1 can hardly induce myself to
think that the gentlemen who made the appli-
cation do themwlves believe what they are de-
furouB the Court should believe. The creden-
tials, as they are called, instead of supporting
the cUim, prove expressly that Ro;p Rada
Chum was not Vakeel to Mubarick, either at
the time the oflence charged in the indictment
was committed, or at the time that the matter
was enquired into, and Roy Rada Churn bound
over by the judges to appear at the present
sessions. He was appointed two years ago ;
on the 22d May, 1775, the last leUer was read
by the governor from Mubarick ul Dowlah, in-
forming him, that Rov Rada Churn had been
a very idle person, and that he conceived his
having a Vakeel as an useless expence, and
there^re he had dismissed him from the Ist of
Suffer, which corresponds with the 2d of April.
The fact complained of, and the binding over,
was all in April. He is reinstated the SOlh of
May. The grounds on which he was dis-
charged are worthy observation ; I cannot help
feeliiifr for Mubarick, who, by that letter, seems
to feel his own situation ; he thinks the having
a Vakeel, or as lie is affected to be called, a
public minister, was needless, and the expence
unprofitable. So it was : had he any affairs of
cun8e(|uence to negociate here ? could he make
war or peace P Why was Rada Churn dis-
missed .'* Jiecause he was an idle person, and
because he was chargeable to the Nabob ; he
is discharged for a good cause. )s any reason

ti;ivea why he was restored? Had he become
ess idle.' Had Mubarick more business to
transact ? The saving his salary could not be
great during his short dismission ; was the Na-
bob grown richer ? Why then was he restored ?
The true reason is too obvious. Roy Rada
Churn had got into a disagreeable scrape.
Mubarick was desirous of protecting him from
It. Though the idea of protecting in this man-
ner is by no means Asiatic ; 1 will not suppose
that any influence other than the personal inte-
rest of Roy lUda Churn was exerted over the
Nal>ob on this occasion.

We next come to Roy Rada Churn's affi-
davit. 1 think the person that drew that affi-
davit, and suffered him to swear to it, is most
highly to be censured. What is he made to
swear ? That he now is, and for two years and
upwards last past has been resident in Calcutta,

as the public mbister or Vakeel of Muberick,
except for about the space of tea days in Hay
last, and in no other character ; and that be
has been charged with conducting and trawact-
ing bis affiiirsa with the East India Compaajr
and others, at this presidency. That tbm ■
not any other public minister or Vaked of ths
Nabob Mubanck resident in Calcutta, as hs
verily believes. This last is, I have nodonk,
perfectly true, and he might, I dare say, havs
safely added, nor any other place wbataaever.
The letters to the governor general are ml
credentially for transacting businea with ths
East India Company and others ; but whit I
chiefljT blame is, the anSeriof him to swev,
what IS not true, that he resided as a pahii
minister or Vakeel, when he was not VakecL
It is said he did not know till these letters wcis
shewn him that he had been dismlsaed ; wkj
then did he make an exception to ten days ■
May ? He most have known it when be iwmc
the affidavit ; if he did not, the affidavit nigbi
have been amended ; if it was not ainendedl,rt
least it should have been explained lo ik
Court wiien the affidavit was read. I calM
upon the counsel, when the letter was read, li
acquaint the Court, whether the facts cliai|ri
on Roy Rada Churn, and the eiK|airy BU
them, was during the time of his dismisMii
but could receive no answer. He that dnv
the affidavit must have known it. He swcao^
he was in the character of Vakeel for two yon
last past, except ten days in May. I f that hd
been true, he would have continued Vaked tB
after the time he was bound over. He tfaoagK
or rather those who drew the affidavit tbougll^
tlie time material. It is plain thia oonU oiC
be accident. He is either made to awear nbl
is not true, or to prevaricate most abominablj.
But there is another circumstance in f» kick
the drawer of the affidavit is most highly cul-
pable. He is made to swear to what he cosU
not understand, the term *• public minister;' it
conveys ideas that are hardly to he expliM
to the natives of this country : and for wlnl
purpose ? Could it l>e expected that the Cosrt
would only attend to the sound of wordi?
Could it be thought he was nearer proving hia-
self a public minister on whom the ri^bt d
ambassadors would attach, hy using tkN
words, than if he had simply sworn nimclf
Vakeel.^ There is no affidavit of the place of
residence of Rov Rada Chum before hit frift
appointment. But it turns out from thif ifi-
davit, that he was resident here before bisbil
appointment, and therefore subject to ihl
English laws. If so, he is answerable hoti
for an ambassador, any more than another p^
son, is not to commit crimes with impnni^*
He will be subject to that tribunal to wbicbl^
was subject before he was invested with hi
public character. If he was a subject of ikt
prince who sent him, he will be subject to kii
courts of law : if he was answerable is ikt
courts of law of another priuce, he must Is
called upon in that prince's courts ; if be vH
before subject to the state in which be n c^

e:

p] for a Consfiracy against (Varren Haifings, ciq, A. D. 1775.
he will Blill

[1126

I' Iwlur

embauy )ie was not subject to llie pi
whoce employ lie is, Ilie sole a<.i ut' luikiug
bim BiobuBailor will not tn^ke dim liable to
biscourlB; except, perliKji^, in inait^rB ntiiuli
relate m liisemWKy, TUcie are itiffereocet
of u|iiiiioiui un tills mibiecl, as 1 slateit the Diher
day ; but I lake llio ivawn and weight of au>
lliurilietlu be un Ibjsaide. I tlico staled wli^
Wicqurfuft was a «lreauoug op|>oser of this
docirjue. Byukershoeck in firm in tills opi-

Thus iliitanili un lUe evidence In support of
the daioi. It is mere colourable evidence;
but when the afliilsvits on the ulher side arc
rMd, that colour liii mediately vaiiishea,

The Governor Geiier*! sivears, that the
late ailmiiiistralinn, by Iheir own aullioiily,
ftppointed IVIonur Begum to be cuardlan to the
Nabob, and Rajah Goiidasii Dewan of his
household, allowiog eacb of Ihera large sala-
(icA : that llie same admiolslration planned mid
coDalructed criminal and civil cuiirls by ibeir
ovro autliority, without turns ulting the Nabob,
nr requiring his concurrence ; the civil were
made ilependeot on tbe prc^^ideocy solely ; and
th« criminal, Ihouifh held in the uame of tbe
Nabob, are, ia fad, under the coatrnul and in-
apectiou of the servants of the Bast India Com-
puiy : that the manaj^ement of the revenue
(the sinews of war) are entirely iti the hand uf
tbe Eaat India Company and their represeala-
live*, without the smallest parlicipalion of the
Nabob : ibat. In cunseiiuence of orders from
the Court of Directors, tbe annual stipend,
which was allowed blm, waH reduced from
31^1,991 rupees, Id 16,00,000 rupees.

By what authority did they appulnl a guar-
dian f The Company had no natural conaec-
^n by blond with AIubLirick. By what autbo-
lity did they appoint the Dewao of his boui>e-
hald, and allow them large salaries? It could
only be dniie lu their political capacity, by that
luthority which Ibey exercised over bim. if
the treaty given In evidence was In the nature
tf a real treat]' »ilb a sovereign prince, where
there were mutual a|{reemeDls and cuntidera-
tioQS. how came this stipend, for so It is called,
[■ word hardly applicable to an independent
tovereii^ prince) to he reduced to ]|j,00,000
rapeesf By what authority did they erect the
eourla of law, aod exercise the admiiiistrHllun
of justice, without any com muai cation with
him t Had he himself any idea be wni a sove-
reign? Duea he complain of ibe reduction of
hit stipend, or the iofrineement of treaties?
No: He coosider* bimself^ uhat he really Is,
sbeolutely dependent on the Company, aad was
willing to accefit any pillancethey would allow
bim for his maintenance. He claims no right.
Doe* he complain that the administratiou of
JDstice is taken Into the hands of the Com-
Muy ? No : by the treaty, tbe protection of
tia subjects ia delivered up In the Company ;
tad he well knew, whoever ie held op as the
Oiteiuible prince, tbe adminlElratioa of^ justice

mu^t he in the hands of those who have poner
to enforce It.

The Governor General, who I suppose had
a delicacy to slale more than »lii.l lius been
before made public, closes bis affidavit iiiib
saying, all that he lias deposed lo he believe*
to he publiciv kuown, as it is particularly set
forth in ihe Reports of the Commiiiee uf Ibe
House of Commons. 1 knew it was there, and
therefore was surprised tti this appllitatiun. It
Is so noinrious that every body in the settle-
meni mutt have known it ; when I say every
body, I mean with no exception to tbe gentle-
men who spply to ihe courL The only reason
1 can giie for their applying if, the little time
ibey have been in Ibe country, and the want of
knowledge of former iransaclions of govern-
ment, and Ibe customs and manners of the
people. I wished tlie Governor Generst bad
pointed out the passnjfe to them ; fur, if he
had, it ought, and 1 hove therefore no doubt
would, baie prevented this appjlcalion,

Tbe Governor General's arodavil proves Ihe
revenues, iheir collection, the whole adminis-
tration of justice, both civil and criminal, and
even in sppointiiifr the officers of his house-
hold, to be in tbe Company. Mr. I^ane, Mr.
HiirsI, and Mr. Vausitlarl, all meinbei'« ufth*
late council, depOKe tbal Ihe military Is do like-
wise. They swear Ibat Ihe whole military
power of tbe province ia, and hn% been for se-
veral years, entirely under the coutroul of the
Company and their represen la lives. Tbey
■wear that he performs no acts of sovereignty
independent of and without the consent of the
represents lives of the East India Company.
Nothing therefore is left to Mubarick butau
euipty title. This has been aald to lie a polj-
lical qtieatluti, and Ibat Ihe delermiuatinn of it
against the right of the Vakeel might be pro-
ductive of quarrels with foreign nalluos, espe-
cially Ihe French. I think It can have no such
effect, for whether tbe lenitorial auquluUons
belong lo tbe crown or the company, if either
oftbem have a rlghl to execute Bovereiguiy
here, and chute so far lu postpone their own
dignity, as to set up another person, through
whom, and in whoae name, they will exercise
the power, I don't know that any foreign state
hat any riglil to complain, nor do I think this
delernrmalinn can affect the lE^alily of Ibe
courts eslablished In this province. All that ia
determined in this case u, that Mubarick nl
UowUh, who baa surrendered bis power en-
tirely Into tbe liands of the English Company,
caoiiol himself, nor can tbe East India Com-
pany in his name, protect delintiiieniK. !>ubject
to llie jurisdiction of this court. IVom being pu-
nished by the Inws of Great Britain; lliat tbe
ageuisofthe East India Company cannot, by
making bim the instruuient, do indirectly what
they would not do directly. It cannot be a po-
litical queatlon of a serious nature in tbeopi.
niooof thei^entleueii maklug Ihe claim; bud
It been to, they would not have pressed a deci-
sion on II In this very unfavourable cate. It ia
no right tlaitiied by tbe Nabob ; both be u\d.

1187]

15 GEORGE III. Trial of Joseph P&i^ mul Men^ [IttK

his Vakeel, as the Vakeel as to himself candid-
ly rnnffss«'d in h\H lueniorial, were wholly ig-
noraot of* the riuhts and pri? ileges to which
he was entitled hy the laws of Great Britaio,
aa ail nnibasKAdor, or puhlic minister : if any
material conscqupnces fnilaw from it, the (gen-
tlemen should iiuve been backward in forcing^
us to a di'i'iKioii ; for we must gite sach an
opinion, whatfrer may be the consequences, as
we think founded in law. They were to jndg^
of the politics. They have thought it rifrht to
have it determine<l. The evidence is before
lis ; we cannot determine contrary to it. We
mustjtidtre by laws, not by politics. Perhaps
this question mifjcht have been determined
merely on the dates of the letters to the |^o-
yernor general ; but as the counsel have made
the other a serious question, I should not have
thouifht that I had done my duty if I bad not
given a full ami determinate opinion upon it. 1
should have been sorry if I had lefl it doubtful,
whether the empty name of a nabob could
be thrust between a delinquent and the laws,
so as effectually to protect him from the hands
of justice. Had this been allowed, I don't
know how far it might have lieen carried ; the
rights claimed extend not only to the ambas-
sMor, but his family and servants. It is pro-
per that the public should be relieved from the
anxiety they must necessarily be under from
such a doubt. It is proper Mubarick should
be informed of our opinion, that he may not
make the same attempt in future.

The rights of ambassadors, as we have been
treating of them, are founded on jus gentium
in Europe ; it is by no means clear that pre-
cisely the same ideas rule in this great penin-
sula of Hindustan, where the laws, customs,
Aid manners of the nations, that inhabit it, are
as dissonant from those of the nations in Europe
as the country is far removed from it. We
know by history that the character of an am-
bassador of a certain rank is held sacred here,
or perhaps more so than in any part of Europe,
hut does it follow, tliou|rh in Europe the rights
of ambassadors are given to all public ministers
of whatsoever denomination, that it is so in this
country? Has there been any proof of it. ^

character which he eoaM send hiiB» ctnalhivs
any pretensions to the full ripf bit of ai anbH-
sador sent from a sovermgn iDdepciideot priaeti
The highest light sach miDister eovMbaiv-
ceived in would be (which ia cMrryiagit a pftk
wavj that of the provincial or manieipal anli^
sadors sent to Rome in the time of Ibe Roma
empire. They were oonsidered rather as Nflh
datarii or ProcuratoreSi and were ameaaUe li
the courts at Rome for ofiences commitled^a^
ing their anibassy. This coontrj doesappw
to me in some measure in the natarc of s p»
vince. I would observe, what has been bHat
observed b}' several aothora, thai the
of ambassadors from fareigo princea
ministers who were sent from the provii
towns sutgect to the empire, elewa op Htf
which otherwise in the Roman law aetinscw
trary to the ius gentium^ as now uuiluriMi
concerning the rights of ambaaaadors ; wtah
ever is said derogatory to those rights is wbai
they are treating of provincial muiricipal ai^
sters. Of the rights of those of foreigv psvai
no nation entertained, in general, an higtar»
verence, or acted with greater delieaey. h
the infancy of Ronia, when the amhaasMMtf
Tarqnin conspired with some of the Bsmi
citizens to restore him, Livy aays, I. ii.ci
** Proditoribosextempio in vineola conjeeti^*
legatis paululam addnbitatum eat, el
visi sunt commisisse nt hostium loco

tamen gentium valuit.*' They aeled endk
conformably to the present idea of the kwif

nations.

I am glad I am reminded of the appKaia
for punishment ; it would not have escaped Hi^
1 was on the point of coming; to it: it wnfr
manded in the memorial, in the letter km
council, and is again repeated Irom the essssl
at the bar. That is indeed treating this iliir
with a very high band. In my opinion, ike
application is indecent and unjust. Wheat
the persons to be punished ? The prusecrtf
and those who served the process. Whs ii ^
prosecutor? The governor general, the kt
niat(istrate in this settlement. The very f^
Kous who apply to have him punished very sd
know no punishment cau be inflicted upoo his
There'is to the contrary. Mr. liurst, I^lr. i hy the court. The caUing for it is indeoaiK
Lane, and Mr. Vansittart, who has resided long I the highest degree. A punishment cau unlflt

in this country, swear, they never understood
that a |)ersou residing under the denomination
of a Vakeel was a public minister, intitled to
the rights of an ambassador ; but that they
conceive Kuch a person liable to the local juris-
diction of the courts ciril and criminal where
he resides. What is there to oppose this? In
Europe there wns a time that these were at
some courts denied to aufents and residents. As
I have bf en informed that one oi' the gentle-
men of the council has served in the t-haracter
of a public minister, 1 will not suppose him not
acquainted with the law of nations on the sub-
ject.

I do not Sfo so far as to say that M ubarick ul
Dovirlah might not have a public minister
here ; but I tliink the minister, in the highest

inflicted for a crime ; it must he known bra*
the counsel and his clients, that, except of
son and felony, the governor gencTsI Aid
cil are exempt from the criiniual jusUceeHk*
court. Th(»se who served the pro<*e«s did il^
express command of all the jiidg^es : isH^
. cent to apply to have them puniHbed ? hi
I not like taking: out a pnicess in a civil i*
I which is the voluntary act of the party, asi*
no coercion of any order from a mai;i»trale. ^
it just that any one should lie punished mi v
arcount ? The Vuketl kuvs, he wa> igiH4»i
of ttiC rights now rlaimed for him nhes ^
was briund over. He had no apprebetwiua (^
he ha I such rights : could it be su. posed ^
those, who sened the samrauns, and tdm
under the order of the jiidgeS| ooaM besf^

P|H] for n CoHipiracy against Warren HnUings, e>q. A. D. 1?'
«4()r those righu that Roy ftaita Chi
•elf wai ignuranl off Ou what iilea i
Ibeo, can a demanil be niBile lo |iudiiIi
BBen, icljng expressly under ihe orclvr of til
Ihe judg^, fur TiolatiDK rig-hls wbicli lh«y
nef ar heard uf, anJ wliich io fact Jo Dot exist P
But, wa> it a ran for jiuLiialiiDeDI, I ihoiild bs
of opinion, Ibat a pumsiiineni sliould becletia-
•d nmilar In that inflictnl at Naples on eat of
tfae principal otticen of an ambaBsador from an
Jl«lnn pnpce ; it wa« (be Pope's nunolo. Hin
reverence had bet-n found, by the ofltcers of
tfae police, in B public brolbel; they hurried
hiin»WHy lo Ibe mapatrales ; nbo declared,
that the aanctiiy of his character exempted
faim from Ibpir juriailiclion : the reverend father
eompUined in his reverend excellence, who
omnplaine*! to the viceroy. The viceroy was
MceDsed at (he indif^ity which had been put
on so hi);h an officer of the nuncio ; and re-
solved tw piiniah il wilh all the severity due to
•a |;roH an uu(rD(,re on the law of nations. He
oondemneiJ the officers of the police to this in-
tiimoua panishmant ; that they should be car-
riad through all tbe markets, streets, sod pub-
lie places iu the cilv. with this scandalous label
oa Iheir backs: "Tbe^e men are exposed to
•hame, becauaeibey vmuid noisufTerlhe revr-
read lather, (irnt mini'der and oonlidrnt cf his
r*verend excelleocy, ibe nuncio of our holy
ftthertbe Pope, to indulge hiniaetf in tbe inno-
cent recreation of (be slews."

The more 1 consider i(, the more I am scan-
dalized at the affidavit made liy Hoy Itada
Chum i I do not so maeh blame hiiD as the
drawer: it it jcaDdalous. il is Baglttnos, to lei
ttim atvear to bis being- a public minister, an
idea which is alinust impossible M be e.vplaincd
to him ; to make him swear lo what is not
troe, aa it (urns oul, that he was a public mini-
ster, or Vakeel, for upwards of (wo years, wilh
tbe exrepiioii only uf ten days; those who
made tbai pxceplion lor him ranat have known
tliat he was wiihiiut ibai cliaracler fur a longer
time. )f I sifsin see an atiidaiit of Ibis nature,
■worn by a native, we wilt inquire who drew
Die affidavit, and the court will animadvert
nroat severely upon him : il is not to t)e endur-
ed, that the couscieaces of tbe natives, awear-
in<; io a tbreign lanj^uage, should be thus en-

I consider this to be an attempt of Mobsrich
(for I ilesire it to be understood clearly (ha( I do
vol auppose auy inflnence exerted over him in
this cnsp), (o see how tar the court vrouM nuffer
him to iater[n)9ehim»p|rbetwceii crimiiiBls and
justice; an altenipi the more bold, as the
party, tntenilnl to lie screened, was sctually
ander nrosecutlon helrire the writing the pre-
tended letters of cradeiice.

'Mr. Justice Chaniltn. I sijTee with
lord chief justice in opinion, that Hoy Rsda
Chum is not eniiiled to exemption fiom tliis
prnsnsulion, aud (hat the indiclment niicht nol
to be uuished ; though, in de)ivsrin[[ the rea-
I or my opinioa, I maj not, perhaps, ex-

fiiao

pressly and entirely assent to all tba poaiiiana
from which his lordship has dcducad that von-
cluaioD.

In cousiderini; (hia subject, I shall nearly
dlaw the method observed by tliu sdvocB(*
bo made this motion on tbe part of Ibe India
CoiBpDny ; and shell ahortly exatnine, Isl,
The ri);h( of the India Compsny to reoeive
ambassadors; Sdly, The priiilegea of ainbaa>
sadors so received; and, Sidly, Whether, id
faci, Roy Kada Churn is now, and was at tbe
time when the olfeuce was committed, actually
invested with the character of on ambaaaadsr,
by having been duly appointed and duly re-

That the East India Company has, in India,
a right to make war and peace, will not, I be-
lieve, be denied ; and I agree with my lord
chiefjustice, that the right of making war and
peace is the chief ground of seuding and re-
ceiving ambassadnrs. That law, by wbicb tba
person of an ambassador il lecured from vio-
lation, is nnicersally allowed, because universal
reason has demonstrated, that of war them
could be no end, unless some man ini^bl safdjr
propound (he trrms of peace ; and that a ceasa-
tion of hoMilitiea, produi-ed by mere lassitude,
could not long continue, unless an ambaasador
tnighl safely offer eoodilions for ita conti-
nuance. The power, (hrrflore, of receiving
amiMissadors, does not apjiear (o me (o be mcb
an incident to the righl of making war and
peace, as may or may not accompany ita sab-
lect: it aerniB rather to be an essential pto-
withoat wbicb the subject cannot exist,
such power, it would not be a right
if making war and peace, bul a right of making
war without poaailiiitty of end ; a viuhi, which
every sound moralist will allow, thai uiao can
neither pnsseas not conter.

Many instances miifht be given of viceroys
and generals, who, by vlviiie of a ilulegated
power to make war, liave sent awl recnvad
ambassadors. In the preteni case, as tite
power of making war, delegated by the crown
to the East India Company, is conpnieil to
the East Indies, their reception of ambassa-
dors must, I conceive, have the same limits ;
and an amhasBsdor to the EaM India Company
may be received in thia eelllemrot by Iha
Company's repreaenlatives, tlie governor and
ooiineit.

2. Tbe privileges and exemptions of am-
bnsiadors so ret-eived must, I ronwive, be
the same, which they mii;hi lawfully ilaiai if
Ibey had been rereiieil in England by the kini;
himself. The Eiiil India Company can nei-
ther wage war. nor receive nn aintaassador, bj
any in[rinsic authority nf its own t it di>es
boib by ihe aulhorily of the king of Great
Rrilnin, and nmler sanclian of his sovereignty.
The ministiT, whiise public cbiracler ia ae-
knowledged hj- virtue of this «lvlr«iile'l power,
may be considered as acknowledged by Ihe
kint; hinisrtf, and may theirfore euppct from
the king's court tbe tiumunitiea due to that
character.

wlihoii

1 131] 15 GEORGE IIL Trial qfJot^h JFVw^ and others^ [IIS

. 1 hafe already said, that the firtt peat im-
munity of an amliaisador, the seeonty of his
Jife, depends on natural law aniversally oh-
■erred; and it may not be improper to add,
that it is obsenred by Mahometan princes, twen
towaids Christian enemies, not merely by imi-
tation, but as a reli^pous and moral duty ' que

* sine peccato committi, nequeunt,' I say this
on the credit of Relandus, in his Treatise, * de

* jure militari Mohammedaooriim ooutra Chris-

* liaqos helium g^erentium ;' but 1 mention it
rather as matter of curiosity, than of impor-
tance to the question before us ; because he
says nothing of other privileges that pass be-
yond personal security ; and also, because I
take it to be clear, that in Eog^Und the ambas-
sador of the most inconsiderable Mahometan
state is entitled to the same exemption from
eivil and criminal jurisdiction, which is allowed
to the minister of the most powerful prince in
Christendom.

3. It is of more importance, in the present
case, to enquire what the facts are on which
Roy Rada Churn founds hia claim to be exempt
firom prosecution. He states himself '* to
have been for above two years (--*---) Vakeel,
or public minister, of Mubarick ul Dowlab,
Nabob of Bem^al, 6cc, and changed with the
Gonilnctinff and transacting his afiairs and con-
eems with the honourable East India Com-
pany and others, at the Presidency of Fort
William." This is by no means a dear and
sufficient description of an ambassador ; and
it is certain, that our 'ideas of an ambassador
are not necessarily comprized in the term

* Vakeel,' which generally means no more than
agent, and b frequently applied to very low
people, employed by private men in the ma-
nagement of their afiairs. It is true, that if
lie be really a public messenger sent by a sove-
reign, with authority to represent his person to
a foreigp power, he must be intitled to the
legal privileges and exemptions of an ambas-
sador, by whatsoever title or denomination he
is distinguished. But I know that the term
(•----) Elciiey is as much appropriateil to
the office among the Mahometans, as ambas-
sador is in Europe ; snd it has not been proved,
that a public minister, either of the first or se-
cond order, is ever jcalled a Vakeel : neither,
if proved, would it in any degree avail Roy
Rada Churn, who appears, on examination,
not to have been in fact employed by Mubarick
ul Dowlah, either at the time when the offence
with which he is charged is sworn to have
been committed, or at the time when the en-
j|uiry into it was set on loot. The Nabob savs,
in one of his letters now given in evidence, that
be had dismissed Roy Rada Churn from the
1st of Suffer, that is, from the 2nil of April
last ; and the subsequent letter replacing him
was not received by the governor general or
council till the 30th of May ; during which in-
terval both these events happened : this, in my
opinion, entirely puts an end to his claim of
exemption ; for surely no one will say, that his
second appointment as Vakeel ought to put a

stop to a prosecution already commeneed, far
an offence committed while he resided here as
a private man.

In the last centory, Wicquefort, m native sf
Amsterdam, who had an employment with a
salary under the Sutes General, was appoiolcd
by the duke of Lunenboarg to be hia nsideit
at the Hague : while he remained there in tkit
capacity, be was tried by the oonrt of HoUini,
for revealmpf, by letter, some secrets of the re-
public, which it was his duty to have ooa*
cealed, and was condemned to perpetual ib-
prisonment and forfeiture of goods. Of tlM
treatment, as of a violation of the law of na-
tions, he complains in a work which he pok-
lished soon after. While those, who defended
the decision of the Dutch court of justice, is^
sisted, that if a native, or settled inhabilastrf
any country, is appointed by a foreign prisee
to be his ambassador in that country, ne cosli-
nues subject to the same iurisdiction as bdr«f ;
this has been, among the writers of natsnl
law, a disputed question ever since ; sad, to
avoid the necessity of determining it for the h-
ture, both the sUtes of Holland ami the Frendi
court have resolved, that they will not here-
after receive a sulyect of their own as an s»
bassador. But had Wicqnefort's offence bare
committed, and the prosecution against hia
been commenced, before the duke of Lssa
bourg made him his minister, 1 believe no osc
would have dreamed that this new chands
could stop the -course of justice, and eies^
him from punishment.

Being, for this reason, clearly of opiaios,
tliat the indictment against Roy Rada Cbsm
ought not to be quashed : I thiuk it unncea-
sary to determine, whether the ^'abob Ma-
barick ul Dowlah is a sovereign indepesdcsl
prince, who can give to his messenger the
privileges and immunities of au ambassador.
Were there no objection to his sovereign^
and independence but his nominal subordiai-
tion to the Mogul, 1 should not |>erhaps bcfi-
tate to say, that if he and his ancestors. Sob-
ahdars of Bengal, have exercised the power «f
making peace and war, they have as good •
right to receive ambassadors as the princes aoJ
free towns in Germany, which owe a nomiaal
obedience to the em|>eror and laws of the eoi-
pire ; but the difficulty which I feel is grcslir
in itself, and more perplexing on accouniof
its consequences : on the one hand, it appesit
hy a very solemn treaty, very lately executed,
the English India ComfMiny have guaranteed
to the Nabob the possession of the three pre-
vinces of Bengal, Bahar, and Orissa, with tbi
title of Subahdar : on the other hand, it is ma-
nifest, partly from the depositions of the go-
vernor general and other gentlemen, that be
has no military force, no revenue except s pes-
sion from the Company, and no share in tk
distribution of justice throughout the couoinr,
except a nominal superintendence over IM
criminal courts.

In this state of things (the cause before res
not calling for such determination) 1 sboold ast

1 133 J for a Compiraeif against Warren Hastings^ esq. A. D. 1775. [llSt

think myself obliged, wbaterer might be my
private opinion, unnecessarily to decide, that
the king my roaster is not sovereign of these
provinces ; and to decide that he is, I would
wish likewise to avoid, because the parliament
seems cautiously to have avoided it, by found-
ing the jurisdiction of this court, over those who
do not reside in Calcutta or the inferior facto-
ries, on personal not on local subjection ; and
because such a decision might engage us in
quarrels with the French and other European
nations who have possessions in Bengal.

Mr. Justice Lemaistre» I desire to testify my
acquiescence to every part of my lord chief
justice's learned and ingenious argument : and
desire to be understood as giving no precise
opinion m to the question, whether or no the
Bast India Company can or cannot send and
receive ambassadors, or public ministers,
upon whom the rights of ambassadors or pub-
Kc minbters (as acknowledged in Europe) will
atuefa.

Though I am very far from acceding to my
brother Chambers's opinion, that such right
actually does exist in the East India Com-
pany, as a necessary incident to that Kmited
light of making peace and war, which they
bave, from his majesty's charter, for the pro-
taetioo of their settlements ; I think it a ques-
tioo of great consequence, which will admit of
a considerable degree of doubt, and ought not
to be determined without argument, and upon
mature deliberation.

Every definition of an ambassador, or public
minister, that 1 have met with in the book, is a
person sent from one sovereign to another,
with authority, by letters of credence, to treat
opon affairs of state. I cannot admit any right
of sovereignty in the East India Company ; in
avery charter granted to them by the crown,
there is an express reservation of soverei(;nty
to the king of Great Britain, his beirs and suc-
ccaaors ; and 1 am inclined to think, by some of
the late charters granted to the East India
Company, that their rights under former
charters nave been very strictly cooftrued, and
that no more jura regalia have been allowed
them, beyond what expressly appears upon the
fSnee of such grant.

When the East India Company had taken
plunder, it was doubted if that plunder could
le vetted in them, without the king's grant.
IL charter was therefore applied for, and granted
lor that purpose.

When they were inclinable to conclude a
treaty of peace, they had considerable doubts
how far they could give up any forts or places,
the sovereignty of which was vested m the
grown. Application was made for a charter to
Ilia purpoM; which they likewise obtained.

Surely the having the property in plunder,
ind the right of surrendering forts and places,
Bkeo by their forces, are as necessary incidents
lo a riij^t of making peace and war, as the re*
imwlng ambassadors ; and if the king's law
lilccra doubted as to these pointSi and dkl not

I consider them as incidental to the power
granted by former charters, I think the pre*
sent matter full as doubtful and deserving of
consideration.

With regard to this phantom, this man of
straw, Mo&ricfc ul Dowlah : it is an insult to
the understanding of the Court, to have made
the question of his sovereignty.

But it came from the Governor General and
Council : I have too much respect for that body,
to treat it ludicrously ; and 1 confess I consider
it seriously.

Mr. Justice Hyde, I am very happy to find
I agree in opinion with my three brethren, that
Roy Rada Chum is not intitled to the privilege
claimed for him by the Governor General and
Council, not claimed by him.

My brother Chambers seems to diff^, but
does not really difi*er, from my lord chief jus-
tice ; for no opinion was declared by his lord-
ship on the right of the Company to receive
ambassadors.

^ My brother Chambers hat declared his opi-
nion, that the Company have such a right. I
desire to be understood to give no opinion on
the subject, whether they can or cannot receire
ambassadors, who will be entitled to all the pri-
vileges annexed to that character. It is unne-
cessary to decide the question in this ease, be-
cause the situation of the person sending is
sufficient for the decision : but whenever it
does arise, it will be a question of great
consequence, and will deserve much con-
sideration ; the safety of this town may de-
pend on it : if it shall be understood that public
ministers, with the vast retinue which the cns-
tom of this country requires to attend them,
are exempt from any legal restraint, it may be
attended with great inconvenience ; ev#n the
possession of the town may be hazarded.

The substantial reason for the privileges of
ambassadors is, that persons may with safely
come to treat of peace or war ; but it does not
appear to me necessary for that purpose, that
they should be exempt from all legal restraint.
When the question comes before us, it may
be necessary to be informed, and to consider,
what rights are understood in this country in
Hindustan, to be conferred on ambassadors ;
and whether the customs of this country do not
make a distinction in the degree of the person
sent, giving to one styled elchee, privileges
which are not given to a vakeel.

By the treaty which has been read, it ap-
pears, Mubarick ul Dowlah deprives himself of
the great ensigns of sovereignty, the right to
protect his own subjects : he declares that shall
be done by the Company.

The act of parliament does not consider him
as a sovereign prince ; the jurisdiction of this
court extends over all his dominions, to such
persons who sre servants of the Compan}' or of
any British subject, and to every one of his
subjects who chooses to submit himself
to our jurisdictk>n and exempt himself from
that of his courts, by making a oontroul above

1 185] IS GEORGE UI. Trial of Joseph Fmke snd M^Sf [1 IN

MO rbpees in value, n4 dedarin^ any dispute
on it shall be determined in this court only; to
that, if we allowed.thU claim, his vakeel would
be the only person in his dominions, to whom
he €*ould extend the arm of protection.

Roy Rada Churn has not produced his in-
■trucuons, which ou^ht to have been done, to
shew he caciie on public business, such as is the
proper subjrrt of treaty between sovereign
powers ; for whst appears, if this were a proper
place tor it, his busmesaas a vakeel might be
to buy liurses.

On the whole, theri^fore, I am of opinion,
the defendant is not intitled to the privilege
claimed tor him, because 1 think the situation
9f the person sending him is not such as will
enable him to confer the character of ambas-
sador.

July 6th, 1775.

Present all the Judges.

The Chief Justice oommnnicaled to the
Court, the following liCtter, which he had re-
ceived from the Governor ^jleneral and Council,
iDoiosing a copy of a Letter from the Nabob
Mobarick ui Dowlah*

" To the Hon. Sir Elijah Impey, knight, Ro-
bert Chambers, Stephen Cfcsar Lemaistre,
John Hyde, Esqrs. Judges of the Supreme
Court of Judicature.

" Honourable Sirs ; We beg leave to trans-
mit, for your information, the translation of a
Letter, which we have just received from the
Nabob Mubarick nl Dowlah ; fVom which it will
appear that he looks upon himself as Soiibah
of these provinces, and Roy Rada Churn to be
his vakeel ; we request that you will be pleased
to inform us in what light we are to consider
those declarations, which we understand have
been made from the bench, publicly denying
the sovereignty of the Nabob, that we may
know how to act when any case occurs with
Tesi>ect lo the signing of warrants for the exe-
cution of criminals ; or what answer we must
^ve to foreign companies,^nd particularly the
French nation, who, the better to a<tsert their
claims of independency, maintain with us the
same argument which we understood has been
used by sir Elijah impey, that there is no dou-
ble government in this country, and conse-
quently that tlie proceedings of the Courts of
Dewanny against their subjects, who reside
without those places which have been assigned
to them by the treaty of Paris, are direct
attacks of the English nation against that of
France.

<• If it be true, that the sovereignty of
Mnbarick ul Duwia be not admitted by the
•upreme court, we are persuaded that the chief
justice and the other his majesty's judges will
tee how im|>ortant it is, not only to the tranquil-
lity of this country, but likewise to the preMr«
vation of the Pjeice which subsists between the
king and the Bttropean povren who are settled

in this coantTf, that we should oot be left in
doubt as to the right to whom the sovereignty
belongs. The late act of parliament, at we ea-
derstand, only sukjecta such of the. natives to
the juriadiciion of the British laws, as 8ie,or
were, employed in the service of the Company,
or of British subjects, at the time when tat
suit, action, or complaint, against them aroie;
from whence we are led to conclude, thai though
the king's sovereignty were admitted to beei-
tended over those who are so particularly ds«
scribed, yet it does not follow, according to sar
idea, that it includes the rest of the natives if
Bengal, Bahar, and Orissa.

■'We are, honourable Sirs, year iiKMt akcs
dient| humble aerrantt, (Signed)

*' J. Clatsbiho.

** Geo. Monson.

<• Ph, FRAMCtS.**

Fort Wiliiam, July 3, 1775.

The above Letter, lieing altered hj the Clerk
of the Crown into the Ibrm of a lotion, vm
filed.

Copy of a Letter from Mubaiuck ul Dovua,
to the Governor General and CounciL

« Roy Rada Chum has for these three yort
been my servant, and is now in Calcutta, ia Hi
capacity of my Vakeel : 1 am now acqiMiMri
by him, that somebody has complained agalHI
him to the Court. As the aaid Koj is new le*
tually employed in the affairs with which ba ii
entrusted by me, and for these three years hsA
been in no other service but mine ; I beg lean
to represent to you, that, if complaiota ofHil
my Vakeel are to be admitted in the Cuwi, I
will re6ect the greatest disgrace and indiwfcj
upon me. You gentlemen, I hope, will oil
approve of such a proceeding ; but speak ii
such terms to the gentlemen of the Couil, ti
will prevent my affairs being impeded or di^
graced ; in doing this you will confer tbi
greatest favour upon me."

(A true copy from the translation.)

W.M. Bruene, Sub-Sec

The Chief Justice Ae^i^er&A the sentioscntl if
the Court, in the following words :

It is with the deepest concern we find tk
Council still persist, notwithstamling the fre-
quent declarations and unanimous opinioooftkl
Court (for it is a mistake if it is thought ttf
brother Chambers was of a differefit opinioB)*
address the Court by letter.

We declared our apprehensions that it wmM,
if the opinion of the Court and that of the Cs*'
cil should not agree, lead to altereationi ; At
least ill consequence of which wo«td be, fk*
lowering both the Court and the Covocil in At
eyes of the public, and would be prejudifiill*
the affairs of the Company. We havedsac
all in our power to avoid it ; and, assailed ai at
have been both in and out of court, we wiH Ml
be provoked to depart from that aobrirty «f
sentiment, which is pectditily nwciMiy florfW
stations.

I

1137] Jbr a Cotufiraeif offwat Warren Httitings, etq. A. D. 1775.

[IISB

I shall erer be for furoisbhig the East India
Company with every rviht and every aasiatance,
indicuiiy or extrajudicially, which I think 1
leipdly may, be the application ever so im-
proper, or the conduct of their servants io ez-
oentionable.

VVe have asserted the impropriety of this
mode of application ; they give no attention to
oar representations, and pay no respect to our
unanimous opinions. There is no power here
to decide between us ; they still persist : no-
thing but absolute outrage will provoke us to
appeal to his majesty, or their honourable em-
ployers : we will not increase the embarrass-
ment his majesty's ministers must labour
onder on account of India affairs, nor add to
the distress of the East India Company : the
proceedings will be sent to both : our conduct
•hall speak for itself, without a comment : in
the mean time, we must steer between creating
oonfusion and losing our dignity.

The letter from tne council encloses one of a
most extraordinary nature from the Nabob Mu-
iMfick: his situation is such,that thereis no man,
cither in England or in India, will believe he
would be induced to write such a letter, was it
nut either dictated to him by the agents of those
who rule this settlement, or unless he was per-
fectly convinced it would be agreeable to, and
eoiucide with, their sentiments. We always
have and always shall consider a letter of bu-
nness from that Nabob, the same as a letter
from the governor general and council.

He says in that letter, that, if complaints
against his Vakeel are to be admitted in the
Court, it will reflect the greatest disgrace and
iodignity on him.

There never was such an idea entered into
Hio head of an Indian Nabob with respect to his
Vakeel. The Ynkeel, in his memorial, has no
auch idea ; he claims only as a new right given
to him by the laws of England, of which right
he was wholly ignorant.

That is not all : 1 have au affidavit in my
band, made by Itoy Rada Churn for a different
porpitse. He says, ** I never heard of the word
* public minister:' I understand vakeel; but
what is the meaning of public minister 1 know
Dot ; vakeel is one thing, elchee is another. I
never liefore imagined 1 should have been ex-
cmpte<l from punishment because I was a va-
keel. Pe«>ple every where respect the vakeel
of the Nabob. I never before heard, that if
the vakeel of the Naliob, or even of the Ring
biioself, should commit a crime, he would be
oxeiupied from the punishment established for
aoch a crime. Perhaps, if the Nabob or King
was to M rile a letter, the vakeel might be for-
gtven."

I will order a copy of this affidavit to be de-
livered, with the minutes of the Court, as it will
^ve great lii^ht into this matter.

Can any one. after this believe, that the Na-
bob himself really entertained the sentiments
which he adopts in the letter ?

If this was the opinion of Roy Rada
Cburn, it would have been candid in the coun-
VOL. XX.

sel for the Company to have laid it before the
Court.

But the close of the letter is really alarming ;
it is addressed to the governor ifeneral and
council : speaking of complaints bemg received
in the court ; he says, ** You, gentlemen, I
hope, will not approve of such a proceedings
but speak in such terms to the gentlemen of
the Court, as will prevent my affairs from
being impeded or disgraced." Did the Nabob
ever write in this style to the governor and
council before ? The letter is transmitted to us
after our opinions have been given. If it is the
real opinion of the Nabob, that we can be spoke
to in auch terms as to influence our judgments,
from whence did he learn it ? We have a right
to demand of the council, that, in answer to
that letter, they do acquaint him, it is highly
derogatory both to the honour of the council
and the Court, to entertain any idea that the
council would speak in the terms he desires ;
and if they did, that the opinion of this court
could be in the least influenced by thetn. We
think it necessary, on this occasion to assert, if
a contrary idea should any where prevail, that
there doth not reside in the governor general
and council any authority whatsoever, to cor-
rect or control any acts of the judges, either in
or out of the cojirt, be those acts ever so erro-
neous : and that no supposed necessity whatso-
ever can authorize any check or control over
those acts. The law of necessity is the law of
tyrants: if the governor general and council
should assert such a right, as they make them-
selves judges of the necessity, they, and not
the king's justices, would administer the law
in this country.

We could have ho|>ed that the governor
general and council, mstead of transmitting
this insulting letter to the Court, desiring such
illegal interposition, would have acquainted the
Nabob how highly criminal it would be in them
to comply witli his solicitations.

I cannot help observing a small circum-
stance. 1 have, since the claim made by the
council for Roy Rada Churn, received two let-
ters from the Nabob directed to myself, and
one original letter from him, directed to the go-
vernor general and council, inclosed in a letter
from them to the court. Though improper,
we took no notice of that letter. I haa before
received letters from him ; they had the usual
alcob, the same that is given to the first in
council. The letters to me since the dispute, to
give him a higher air of consequence, make
the alcob much inferior. The same artifice is
made use of in that sent to the governor ge-
neral and council. The alcob sent to the go-
vernor general and council is infinitely inferior
to that formerly sent to the first in council and
myself. They best know whether at any
other period they would have admitted a letter
from him with that alcob. They best know
whether the Company in future is to be treated
with the same inferiority.

This observation will not be so striking to
those who are not conrersant with the customs

4D

1 139] 15 GEORGE IQ. Trial of Joseph Faake and oiktrtj

[1140

Unil ideas of the natires, and do notkoow bow
teuacioufl they are of that addrew.

If our opinions are carefully examined, we
thiok no doubt can arise as to the question of
finning' warrants for the execiitinn ot criniiiialR.
But, If^ they niay have taken tbeir idea Af
our judi^ment from loose notes and partial re-
presentations, the Judges hoi-e wntlen their
opinions, which were delivered on the late
question, and will transmit them to the ipover-
toor i^eneral and council, with the present opi-
nion of the Court. Mr. Justice Chambers, hav-
ing taken no notes of what he said, has deli-
vered his opinion from his recollection and
such notes as the Chief Justice was able to
fiirnish him with. The opinion of the rest of
the Court is, ai near as may, in the very words
they were delivered. But, lest any doubt after
that bhonid remain, and to prevent any possi-
ble occasion of impeding or obstructing the jus-
tice of tkie country, we explicitly declare, that
thei'e is nothing, in the opmion of the Judges,
which ought to prevent the warrants beint'
ligned ai usual by Naib Nazem, who is paid
out of the Khalsa treasury. Nothing is decid-
ed by that judgment, but that neither the East
India Com pan v nor their servants, both being
subject to the laws of Great Britain, can, by
interposing the name of the Mabob, screen any
%Hminal from the justice of this court.

We have expressly said, that our opinions
did not aifect the country courts establislied in
this province.

How far Mubarick is a sovereign, with re-
spect to the Company, in the opinion of these
gentlemen, is apparent, by putting the ques-
tion, bow they are to act with respect to the
■igning of warrauts for the execution of crimi-
nals. It is plain, we do not differ in opinion
upon that question. Nobody, either in Eng-
land or ill liiilia, will dispute to the chief jus-
tice the making use of arguments because they
have been used by the French ; nor can it t>c
1hoii|r|it that arguments are weaker because
they have occurreil (o others. What the chief
justice said, was not simply his opinion ; if it
was not in every circumstance the opinion of
the whole Court, it was that of the majority of
the bench had not be been there. But, in tact,
neither the chief justice nor any of the jus-
tices made use of the arguments attributed to
them. They never asserted there was roy
double government in this country. All that
a negative is put u|)on is, the illegal exertion
of the powers of a double go verument to dcfieat
tlie king's laws. They were very far from
drawing the consequence imputecl to tJiem,
Daiiif^jy, that the proceedings of the courts of
Dewanny, agaiust the French who reside with-
out those places that are assigned to them by
the Treaty of Paris, are direct attacks of the
English nation against that of France. We
never thought of the Treaty of Paris. We
thjuk the positron itself, as stated by the
French, not true ; and are astonished to see it
nsserted as our opinion. We have affirmed
the very coDtmy. We bars fineqaeotly de-

sired, to prevent partial and nttidoni npre*
senta'tions, that the Company would employ a
person able to take down the opinions of tbt
Court correctly.

1 can foresee no political conscqnenopt frm
our decision ; but be it remembered with whil
reluctance we catered into the question. We
flung out what it was necessary' for the cooadi
to maintain, and told ibem the oonsequenmsf
not maintaining ir. We did it to save the ho-
nour of government. We did il that ibcj
might not persist in a claim which we feared H
would be im|)OssibIe for ihem to aunport. IVgr
were judges of their own politics. They mgd
us to a decision we wished lo avoid. We vac
obliged to judge, from the evidence before m,
of the legality of the claim, not of the pditid
consequences. If, which we do not befictt^
any ill consequences follow to the stale, Ibqr
who unnecessarily' arged us to a decision, M
we who are bound to decide according to liv,
are answerable for them. Did they cxpid
that we, who must administer justice aom-
ing to our oaths, should, contrary to evidnee^
determine thil, %ihich, though within their sn
knowledge, they would not take upon IIkb-
selves to swear to ? We do not know a wsni
character than a political judge ; we do ■!
know a more dangerous one. Can any m
believe this strong Ktruggle with the Court ■
simply to protect Roy lUda Chnmf kk
dignus vindicef It is clearly to serve olhn
pur]>oses, which for fear of prejudicing Ibea-
suiug trial, 1 will nut mention. But tbe il-
tempt is on mistaken principle. The ndn
of a state should be very reserved in briifiif
on political questions of real iuiportanee, d-
cepttliey are sure the law ou the subject ii
with them. They must not expect eoai^
saoce from judges. AVe must execute ftrtB
justice. Were judges 10 look to p^ditical coi-
sequences, they mufst ever he dictated to k/
tho.se that hold the pucrs of the state. It wV
necessary to determioe that question in ihJ
case. Mr. Justice Chambers avoided it, id
hinted something like wluit is advanced now bj
the council ; but the other judges could tk
rest their opinion simply on the dates of tbi
credentials. As Mr. Justice Chamliers was d
opinion that an ambassador, a subject of tbi
stale in which he is employed, is not amesil!^
to the courts of justice where be resides ; lUi
Chum, being a vakeel, and so accepted by ib
East India Company (if that should give hii
the right of an ambassador), on those priodflv
otight not be amenable to tliis court, tbosK^
the offence was committed when he was Bottf
ambassador. The chief justice, though cf*
different opinion, advanced what he saiil ■
that head with a degree of diffidence ; aoddc).'
gave his opioiou on which side the weizfcl ^
authorities lay. The other justices Mu^
thought the same.

As to the question put concerning tbe dt^
of the sovereignty. of tliis coontr}* ; it mtm^
m as if it was meant to draw us into a dikS'
ma ; but we were never lesi enabarrasied tit*

li41J Jiir a Conspiraci/ againtl Warren

lb* slate or Mubarick ul Duivlub ; we linve be-
fc» (Ivclarn), il is nol alwretl bj \\m ilerlsimi.
Am to the queslion belweeo itie Crnwa anil ibe
Ciamuan;, ilUuf k Tcry Heltcsle nsture i Uilli
tfie Crown anil the Coii)(iHny hove Iweumxi'ius
M aToiil britigin^ il to a lieciiion : n-e ihererorf
*ra ipocli auriJnseJ (bal tbe tatoM* uC ilie
Company iboulcl iirfsi aii e\lrajudiciil 0)>i»iuti
njiiMi it; nor, irgiien, ilu wecoDcei'e ii >Tniiiil
operftle upon their cuixlucl. We ibuiilil be
luucli conceroeil if lliej bmughl a cnae before
■U which would make it necei^Hry for \\a lo
(lelermiae il. We would sToiil it it' we ciiuU.
Il' il became absolulely iiecttaary , we would
nnl reltacl t'toiu yivia^ our ojiiniuni but we
would unt give it uDliI we bad beard etcry
thiug llint could be laid on rilbvr aide, nur
uutil we bad oblained all llie light* and inrur-
■nation ibat cnald be oblaiued on ibt-iutgecl.
But wa must decline p reel jiitBlely and wan-
touly giviiit; An extra-judiLial ojiiiiioa uf lo
■nnch coiiseqnenee, especially as such bigb o(-
fenra was lakeo, tbal the Cuiirl bad tried an
iBdiclmeat, in which a robbery wbieli waa
comiuitted bcre was char|^eil t<> he cummitled
on tiM kJDg'( biubway ; il lieins ernineouflly
OiuleMlood that the Court thervhy had Inkeii
upon itself To dcteriniije tbe (cry iiuesliuii nutr
[mpiHed lu the Court, thuugb il bad bfvii, and
■MiMl haie been, lUe furin ur the inUiclineut
■rbeii ll>e preaidptit and council were juslii'M
of Oyer and Terminer and Guol Diliicry.
We will net enter into an argnnient on a niat-
ler of law wiib ibe geuileiiieu ; much IfM
break inig their pru*ini:e, lo ilevide u|iiio inat-
l«ra of puliticB. ^Ve ahould have declined
lakio? any uniice of ihii letler, ha*d ite not
KmeJ thai occarion migbl have been taken
from our silenw lo put a ilo^ lo the criwinat
jii>lieeioilie protineeK.

We lake ihia opnoriiiQily tn declare, Ibat the
«al*bl>«hn)enl uf lliis diurl hnih uiade on ulto-
tuion in riw)iei;t tu the ailiniiiiatrulion of ori-
Btiaal jiiitice, except nuly id this luwn anil
Ute lacloriea aubardiiiale lo this letllemeni.
We declare il, thai, if ihcre n a aiopiia^a of
iuHin, it may be cleai that it i* nut octatioiied
\g ibia Court,

Hy brtiiber Cliauibers W pomteil out tn me
» pMaagv in Roy Kailu Churn'a affidavit, wliicb
] had neglected to make any obiervaliou upun.

He nya, ■ Ilu ihioka be is ubiiged lu obey
■ the orders of ilie cuuiicil, and Ihal Ihey may
••wmnion him. That, in tad, he wai calle'd
' lo appear belore the cinncil ithrn ibnueiten-
' tlvtneu, who make the claim fur

Haati~gs, esq. A. D. 1775.

i^m

*er*

He

)r the

■mJaTit, ■ It wai not left lo my \\\i

• lb«r I woutdcome ur not ; il waa said, Cunie.'

WUat iben was Ibe senae of these geiille-
men, aa to hia having tbe ri^'bla of au ambaa-
Milnr T la be not lu lie canaiilci'ed merely to
•lude the justice of iheCuurt?

The abi>tr, baviug been signcil bj all Ihe
Judges, »■« nenl, t<>getber wiib their former
Opioiona and th« Wllowing At&da\il, to Ilie

Translation of tbe AstiOAvrr made bv ftor
Rad* CHtkN. beliirc Sir Elijah Impey,
koigbi, tbe 4lb day of July 177^.
" I knew nollhinif wjih rBsped l» the righU
of a Vnkeel, or Jilchee, till Mr. Farter iwbed
me wliai tias my emptoynent; lo which |
aiuirered, ibM 1 wai a Vahtel of the Nnhub.
When Mr. Parrerand Mr, JarretwereloBrlber,
I ineulionedlutbcmlliBllliad been the Nabob'*
Vakeel fur near three years ; «ad ibey caiuej
an orzee to be written, which 1 sigurd. I
imagine lliat ii naa necessary fur m« la obey
any order iasaed lo me hy the council, and lliat
I must attend upon them in oonfuimily tu any
summona ibey may aenil lo me. 1 wai odc
day calleil lu appear before llie council, or
committfe; ana atlendeil accoidingly. TU*
ijavernor, the general, cUonrl M<ini«iti. aad
nir. Prani'is, were present; Cumaul O Dceu
bad before that presented suioe papers In Mr.
Fowke: tlie ^ullenien uf the council asked
me, it' he had Kiteu tbe papers lo Mr, Fuwk«
lo keep, or with the iuluilion tbal they oiighl
be preaented lo tbe rmiucil.

" Mr. Parrer and Air. Jarrel caused a paper
lo lie written nut in the English langutige, 19
tbe truth nf Ibe cunlenia uf which I swore be-
fore Mr. Hj'de ; but ibey never explained the
words ' iiublic miuislcr' lo me, they ouly tneo-
li»ned Ihe word ' Vakeel.' I know nmhing
nilh respect tn my hnMOK- been dismissed friun
Ibe service nf the Nibob fur ten days. Tbe
Nobob never wrote any ibinfc of it lo me :
Mr. Farrerand Mr, Jarret may ha>a
'd it from report. Mr. Farrer said to tue,
:utheNabob'Es«r>'icefiir|eu<Isy»i'
and Slid nolhinif more. He probably heard ibia
I'ruiii others. I never heard any tbing of i|
from any one. lUr. Farrer never told me that
I bad been ilismisiwd from the beginning of Ibe
mMuth of SuSer, One day 1 went lo Ihe house
of culotii-l Uonsou, who said, I'erhsps you was
ilismisiied fur some day* from tbe service of tbe
NaLuta'. do you know any ihiog of it? I an>
sirered, I know nothing of ii. This conver-
saliun passed alicr 1 bad made the affidavit be-
fore Mr. Hyde. I never heard ihe worda
< public minister,' I understand vakeel ; but
wbaiis ibe roe.-ioing of public minister, I do
not know, Vak«el is one thing, sod Elcbee i*
anolber. I nevrr hefoie iiuai.'iiied 1 should
have h'en exemptrd from puBisbment lieenuse
I was u vakeel. Penple every where r^Kpect
the Vakeel of Ihe NuIhiK I never brliire heard
that if tlie Vakeel of tlie Nabah, or even of
tbe King himself, ahiiuld coiumii a crime, he
would be eKem|ilcd from tbe puuishmeDl eaU-
(ilished fur such Crime. I'er bans. It the Nabob
nr K'uig was to wrtle a leller, the vakeel migbl
be forgiven.

'• Mr. Tarrer ssiil lo m^. 1 heard ihatyoti
were disuussed triiiu the Nnbob'* senice lor
leii ilsys : ibis was al\er I had made ibe affi*
davil : 1 never before bad heard ■ word of Jl.
(Signed) " Ran* Culilh."

iierbaps &

IMS]

15 GEORGE UL
THE TRIAL.

Indictment,

and CMifff

[UM

*« Town (4' CaJr \ To wit. The Jaron for
tutjbaandFaiioryiix^x lord the king, upon
^ Tort William f their oath, present, that
tn Bengal^ j Joseph Fowke of Calcutta,

gentieroan, Francis Fowke
of the same place, gentleman, son of the said
Joseph Fowke, Maha Rajah Naodocomar,
Bahader, late of the same place iohahitant, and
Roy Rada Churn also of the same place inha-
bitant, all of whom are subject to the jurisdic-
tion of the Supreme Court of Judicature at
Fort William in Bengal, being persons of evil
name and fame, and dishonest reputation, and
wickedly devising and intending Warren Hast-
^S^9 esuuire, governor general of the presi-
dency or Fort William, in Bengal aforesaid,
Dot only of hia good name, credit, and reputa-
tion to deprive, and to bring him into the ill-
opinion, hatred, and contempt, of all his ma-
jesty's subjects in the said province of Bengal,
and of the native inhabitants thereof; and by
that means, as much as in them lay, to dbturh
the good government of the said country, and
the management of the commercial concerns of
the honourable East India Company therein,
"Which are so eminently intrusted to the said
Warren Hastings, but also to bring upon the
■aid Warren Hastings the ill opinion and hatred
of the king himseli; and of the two houses of
the parliament of Great Britain, and of the pro-
prietors and directors of the said East India
Company, did, on the 19th day of April, in the
151 h year of the reign of our sovereign lord
George the 3rd, by the grace of God, of Great
Britain, France, and Ireland, king, defender
of the faith, and so forth, in Calcutta aforesaid,
in Bengal aforesaid, conspire, combine, and
agree among themselves, falsely to charge and
accus'e the said Warren Hastings of divers
enormous and scandalous offences ; particu-
larly, tliat he the said Warren Hastings had
then lately, by divers sinister and unlawful
means, procured a certain false accusation
against the said Joseph Fowke, in the name of
cue CummanI ul Deen Allee Cawn, to be made
and wrote, which said false accusation he the
said Warren Hastings had himself presented to
the governor general and council at Fort Wil-
liam aforesaid, knowing it to be false ; and also
that he the said Warren Hastings had hereto-
fore, corruptly and collusively, received several
sums of money from the said Cummaul ul
Deen Allee Cawn, in the nature of bribes, for
services rendered or to be rendered to him the
said Cummaul ul Deen Allee Cawn ; by that
means representing him the said Warren
Hastings as guilty of wilful bribery and cor-
ruption in his office and duty. And the jurors
aforesaid, on their oath aforesaid, do further
present, that the said Joseph Fowke, Francis
rowke, Maha Rajah Nundocomar, and Roy
Rada Chum, on the said 19th day of April, in
the year aforesaid, at Calcutta aforesaid, in
Bengal aforeaaidi according to the aaid couspi-

racy, combinatioo, and _
selves as aforesaid, did^ hAm^j and wickedlyy
for the evil purposes aforesaid, mme and mske^
and caused to be framed and amde^ a ecrtaia
paper writing in the Persian lanffoage ; par-
porting, that be the said Warren Hastines kai
then lately, by divers sinister and notawM
means, procured such false aocuaition as afsra-
said, in the name of the ssid Cumsnaul at Den
Allee Cawn, to be made and wrote agaiosl the
said Joseph Fowke, and had preaenled the sane
to the said governor general and cooncH at Fait
William aforesaid, knowing it to be false;
thereby falsely and scandalously represeoliBr
the said Warren Hastings as guilty of the wm
offence of procuring the said Joseph Fowke ti
be falsely accused. And the iurors tilonuii,
on their oath aforesaid, do farther present, ikiC
the said Joseph Fowke, Francis Fowke, Mahi
Rajah Nundocomar, and Roy Rada Ckaii^
afterwards, to wit, on the said 19ih day tf
April, in the year aforesaid, at Calcutta ann>
said, in Bengal aforesaid, according to the eo»
spiracy, combination, and agreement alowisi^
between them had as aforesaid, did, for ik
purposes aforesaid, by certain sinister and as-
lawful means, to wit, by intr^-atifs, proiaiM^
and threats, procure the said Cum- co«»pirarT,«<
maul ul Deen Ally Cawn to alfix «* '^
his seal, containing the impression of his
to the said paper writing, so framt^ and
as aforesaid ; and that the said Joseph Foekc,
in pursuance of and accordini^ to the ooMp-
racy, combination, and agreement, heiwMS
him and the said Francis Fowke, Maha RajA
Nundocomar, and Roy Radachuni,so as »hn>
said had, afterwards, to wit, on the said llib
day of April, in the year aforesaid, at Calcutti
aforesaid, in Bengal aforesaid, did, airainallbt
will and consent of the said Cummaul ul DifS
Allee Cawn, and notv«iihstanding the t*X|ircn
declaration of him the said Cuiiiiiiaul nl Dtct
Allee Cawn, that the said paper wiriiin*; hU
been forcibly and illegally obtained, and ibil
the contents thereof were false, take and carry
away the saifl paper writing, and presmi die
same to the governor generul am) council si
Fort William aforesaid, or to Si>me or one rf
the members thereof, as an arzee or petitioaof
him the said Cummaul ul Deen Allee Cawa It
the said governor general and c4»unoil. Asd
the jurors aforesaid, upon their oath aforesii^
do further present, that the said Joseph Fowkc^
Francis Fowke, Maha Rajah Nuudocoour,
and Roy Rada Churn, afterwards, to wit, «
the said 19ih day of April, in the yearafort*
said, at Calcutta aforesaid, in Bengal afor^
said, according to the conspiracy, C4HnbiBft-
tion, and agreement aforesaid, between then
as aforesaid had, did, for evil purposes afor^
said, unlawfully, wickedly, and onjusdVi
frame and make, and caused to he fraiuvd aM
made, a certain paper writing in the Peraiia
language; uurporting, that the said Warm
Hastings and others had, indirectly sod eoUa-
sively, received from the aaid CuminattI si
Deen Allee Cawn, by way of bribes fibr

1 1453 J'"' * Ccn^urnetf t^uintt Warn* Hastings, esq. A. D. 177&

[1148

reiMlered or to be rcDdered to him, sandry turns
of money ; to wit, the said Warren Hasting,
esqnire, the sum of 15,000 rnpees, Richard
Harwell, esquire, 45,000 rupees, and to Hoshyar
Jung, thereby meaning George Vansittart,
esquire, 12,000 rupees ; and that the said Jo-
seph Fowke, in pursuance of and aooordint; to
the conspiracy, combination and aj^reement,
between him and the said Francis Fowke,
Maha Rajah Nundocoroar, and Ruy Rada
Chum, so as aforesaid had, afterwards, to wit,
on the said 19ih day of April,intheyearafore-
said, at Calcutta aforesaid, in Benfi^f aforesaid,
did, by divers sinister and unlawful means, to
wit, by force, threats and menaces, procure the
•aid Cummaul ul Deen Allee Cawn to write on
the said paper- writing certain words,' purport-
ing^ that be acknowledc^ed such sums to hare
been paid by him, notwithstanding the express
declaration at the same time of the said dum-
naol ul Deen Allee Cawn, that the facts there-
by pretended to be acknowledged were false ;
and notwithstandiiJ^ in truth and in fact the
•aid Warren Hastings has not received such
•everal sums of money, or any part thereof,
nor is guilty of all or any of the charges or
accusations so made against him as aforesaid,
to the great damage of him the said Warren
Hastings, to the evil example of all others in
the like case offending, and against the peace
of our said lord the king, his crown and dig-
nity. And the jurors of our said lord the king
lariher, upon their oath, present, that the mid
Joseph Fowke, Francis Fowke, Maha Rajah
Nundocomar, Bahader, and Roy Rada Churn,
all of whom are subject to the jurisdiction of the
•aid Supreme Court of Judicature at Fort Wil-
liaai in Bengal aforesaid, being persons of evil
name and fame, and dishonest reputation, and
wickedly devising and intending Warren Hast-
ings, esquire, governor general of the presi-
dency of Fort William in Bengal, not only of
Ilia good name, credit, and reputation to de-
|Nrive, and to bring him into the ill-opinion, ha-
tred and c«)ntempt of all his majesty's sulijects
io the said pfoviuce of Bengal, and of the inha-
bitants thereof; and by that means, as mnch
as in them lay, to disturb the good government
of the said country, and the management of the
affairs of the honourable East India Company
there, which are so eminently entrusted to the
•aid Warren Hastings, but also to bring upon
the said Warren Hastings the ill-opinion and
hatred of the King himself, and of the two
Houses of the Parliament of Great- Britain,
and the proprietors and directors of the said
£asl India Company, did, on the 19th day of
April, in the 15th year of the reign of our sove-
reign lord George the third, by the grace of
God, of Great Britain, France, and Ireland,
bin^, defender of the faith, and so forth, at
Calcutta aforesaid, in Bengal aforesaid, con-
•pire, combine, and agree among themselves,
nlsel^ to charge and accuse the said Warren
Hastings of divers enormous and scandalous
oflenoef ; particnlariy, that he the said Warren
ilastiiigi DM then Utdiy, by di? an tinister aiid

unlawful means, procured a certain false acco«
sation against the said Joseph Fowke, in the
name of one Cummaul ul Deen Allee Cawn,
to be made and wrote ; which said false accu-
sation he the said Warren Hastiugs had him-
self presented to the said governor genenil and
council at Fort William aforesaid, knowing it
to be false. And the jurors aforesaid, on their
oath aforesaid, do further present, that the said
J. Fowke, F. Fowke, Maha Rajah Nuodocomar,
and Roy Rada Churn, on the suiil 19ih day of
April, in the year aforesaid, at Calcutta afore-
said, in Bengal aforesaid, according to the said
conspiracy, combination and agreement among
themselves as aforesaid bad, did falsely and
wickedly, for the evil purposes aforesaid, frame
and make, and caused to be framed and made,
a certain paper writing in the Peniian lan-
guage ; purporting, that he the said Warren
Hastings had then lately, by divers sinister and
unlawful means, procured such false accusa-
tion as aforesaid, in the name of the said Cum-
maul ul Daen Allee Cawn, to be made and
wrote against the said Joseph Fowke, and had
presented the saime to the said governor gene-
ral and council at Fort William aforesaid,
knowing it to be false. And the jurors afore-
said, on their oath aforesaid, do further present,
that the said Joseph Fowke, Francis Fowke,
Maha Rajah Nundocomar, and Roy Rada
Chum, afterwards, to wit, on the said 19th
day of April, in the year aforesaid, at Calcutta
aforesaid, in Bengal aforesaid, according to the
conspiracy, combination and agreement afore-
said, did, for the purposes afbreuud, by certain
sinister and unlawful means, to wit, by entrea-
ties, promises and threats, procure the said
Cummaul ul Deen Allee Cawn to affix his seal,
containing the impression of his name, to the
said paper writing, ao framed and made aa
aforesaid ; and the said Joseph Fowke, in pur-
suance of and according to the conspiracy,
combioatbn and agreement, between him and
the said Francis Fowke, Maha Raiah Nundo-
comar, Bahader, and Roy Rada Chum, ao aa
aforesaid had, aflerwards, to wit, on the said
19ih day of April, in the veer aforesaid, at Cal-
cutu aforesaid, in Bengal aforesaid, dNi,againat
the will and consent of the said Cummaul ul
Deen Allee Cawn, and notwithstandipg the ex-
press declaration of him the said Cummaol nl
Deen Allee Cawn, that the said paper writing
had been forcibly and illegally obtained, and
that the contents thereof were false, take and
carry away the said paper writing, and pre-
sent the same to the said governor general and
council at Fort William aforesaid, or acme or
one of the members thereof, as an arzee or pe-
tition of him the said Cummaul ul Deen Allee
Cawn, to the said governor general and ooun-
cil; they the said Joseph Fowke, Franeie
Fowke, Maha Rajah Nundocomar, and Roy
Rada Churn, thna endea?ouring to represent
the said Warren Hastings as having procured
the said Joaeph Fowke to be falsely acoueed ;
whereas, in truth and in fact, the aiod Warrea
Hattingi is mot gnUty of aU or any oT tha

1147] 15 GEORGE III. Trial qf Joseph FomAe and Mertp [1148

charKVi or Bcctnationi to made aii^mt biin as
aforesaid ; to the |<reat dama^ of him t be said
Warren Hastings, to tiie evil examjile of all
others in the like case oflendin^, aad atifainst
the peace of our said lord the kiogf, his crown
and dignity.

signed, Jas. PRrrcuARO,

CI. of the CroifD.
June Id, 1775. W. M. BECKwrru,

Clerk of IndictiiieDts.

Comaul 0 Deen Cawn examined.

Are you acquainted with Maha Rajah Nun-
docomar ? — Yes.

Were you so in February last ? — Why slkould
I not know him ? 1 have known him for tliirty
3'ears.

Did you ever apply to him to borrow money ?
—Yes.

When the last time? — fn the month of
Chile, I applied to him, to b^trrow 3,000 rupees.

Di«l any ciinversation then pas** i* — At that
time this Gouversation. I went to MahaHsjuh
Munduoomar ; be desireil me to $it down, and
said to me, Do j'ou know any thing of the
barramot in the business between the governor
and me ? I answered, 1 have lieard something
of il; I have not heard all. He said, There
has bfcn enmity between Mr. John Graham
and me : he was my enemy, I was his. I was
think og of the enmity between me and Mr.
John Graham, anil of that nitli the governor ;
and the governor has, without cause, been
angry with ute, and forhid me his house ; and
has told lue, I will do bad things to you ; be
upon your guard. Being remediless, I took
the advice of Mr. Fowke. Mr. Fowke gave
this answer : Until you get the paper of l>ar-
rumut, till you produce barramiit against the
governor, Mr. Harwell, Husbia Jung, meaning
Mr. Vaiisittart, and other gentlemen, I cannot
•ay any thing to the gentlemen in your l»elialf ;
but if you do this, I will get you the kvllaut of
Aumeeu. Being remediless, I gave the bar-
ramut papers, the barramut in the business of
Munny Begum; and 1 have proved the go-
▼ernor culpable. Do you likewise consider of
this. I (C. O Dern) said, What you yourself
have done, you have done well. But in the
bearing of the world, it will appear shameful,
that you l>eing sucrh a man should do such bu-
ainess. When .Malm Rajah heard this, he
laughed, and said, To it, and write a bond for
the rufiees, which }0u have apfdied through
Hadu Ciiurn i'or on loan, and get the rupees
from him ; and two dayit hence the Burdwan
]>eople will receive ihe kellant ; and then 1
will converse with you. He then gave me
two pauns, and my dismijision. Nothing more
passed then.

Had you ever any demand against the dewan
of the khalsa for any sum of money ? — He was
not my ilebtor. 1 bad a demand on him for
the Tuka Cotlary.

Did you ever send any areees to Maha Rajah
Nondocomar or Rov Rada Chum, with respect
to tliit demand?— I depoaitcd two arsees with

j Maha Rajah Nandocooury but did Mt
' complain.

Did you present these arzen to Maba Ba-

jah, or Roy Rada Chora ?— To Rada Chwtt
and desired him to explain to Maba R^b.

What passed when yon preaentcd tke wrwem
to Rada Churn?--! said to Rada Cbura, Da
you take these two araeea io deposst ; 1 doat
deliver them in aa complaints ; was 1 la oaa-
plain, I wookl complain of what ia true. !■
order to frighten hinn I have wrote wbat 1
pleased myself. Do you take tbeae aa a ds-
posit: when Moooshy Sudder O Deen comt
fn>m bis out-house, then we shall w^nSnt it
among ourselves ; and at that tiine 1 will tsfct
these two arsees of you agaio. 1 will gift
6.000 rupees; 4,000 rupees to Maha Bajik,
and 2,000 rupees to you. I gave lim tbea It
golden mohurs.

Did any particular cooTersetioa |Mas?— I
came to my own place, after having givtn bis
the arzees, and desired him to explaiD tbea W
Maha Rajah. I went agairt the next iiionii«f
to Maha Rajah's. Maba Rajab aeid, I hut
ii<-ard from Kada Churn that you have dtp-
sited with him two arsees againat Guoga Goris
8ing; why don't you present tbem to ihl
council? I will procure for yoii from Ihe {t-
neral ready money to the amount of the di*
mand, and I uill settle it with Gunga Go*ii
Sing. Mr. Fowke is at enmity with yon ; ds

J^'ou go with Rsda Churn, ami be reconciled li
lim again ; and being reconciled to Mr.Foekf^
he will introduce you to the general, iba cs*
looil, and Mr. Francis; and lie will get yM
the appointment to Purnea; and 1 abaM, ii
three or four days, obtain llie kellaul of tk
aomeeny of the khalsa. I replied, When its
have got the kellaut, I will get introduced by
your means to the gentlemen ; but ii does Obi
sigiiify being introduced to Mr. Fowke. I
cannot go to-day, 1 \ull go with Hoy Rtdi
Churn to-morrow. lie said. It is well. I
then went home to my own house, ami wcsi
the next day to Mr. Fowke, with Uada Chan-
Mr. Fowke was laying U|»on a couch io tW
hall ; I presentetl him with a nuzxeer of five
rupees: he put his hand U|K>n the uwzietf,
but (lid not take the rupees. He told me to sit
down. 1 sat down. He got up, and wentiats
a room. Then Rada Churn took me with hi*
into the room Mr. Fowke went to. Mr. FovU
shewed me tokens of kindness ; lie gave at
lieetle, rose-water, and ottar ; and told m^
Do you do what Maha iinjah shall tell %uS>
I ha?e heard your praises from Maha Rajak;
do you be perfectly conteotetl. Do y<>n dt
what Maha Rnjsh tells you, and 1 w'illyiM
^ ou the business of I'urneah, and confer nMSj
favors on you. Having given me beetle, iwe-
water, and ottar, 1 took my dismission, vd
went home; and staid ut home two days: I
neither went to Maha Rajah'a, or Mr. Fowitf'i>
I thought the business bad, and therefort M
nut go out of my houae for two da^s. Tkt
third day, in the evenHi|f, I went to MalnBi'
jab \ and told bim, 1 will go tm Ha^gblj ^

1119] Jbr a Corujnntejfagainit Warren Hastings, etq. A. D. 1775>

[1190

liny, I haTe private business of my own ; I am
roine to ^t in^ dismission. He said to me,
That arKoe winch you (fave in to the governor
in Mr. F<mlce*s nniiir, tJiil you give it the last
oft'Au}|^hun, or the first of Poos, and when the
Governor fjfave you the arzee back ? Where is
that arzee? Uriog it mc, I will see it, and Mr.
Fowke wants to see it ; do you brin^ it to me
to-morrow evcnins;, and then go, I then came
to my own house : the man who was my old
Moonshy was gone home at 12 o'clock; the
next day I made my new Moonshy Kewder-
nawaz write out whatever I remembered.
Having made him write, I kept it myself; and
in the eveninfr, having put my seal to it, car-
ried it to Maha Rajah's, and said to him, Sir,
this is the arzee. He took it, and then gave
me my dismission.

U'hat else passed ? — I don't remember.

What was the business you thought bid?
State it, if you can. — J looked upon this as bad
business. Maha Rujah told me to give this
barramut against the Governor, Mr. Barwcll,
Air. Vansittart, &c«

Who asked voa to give tlie barramut? —
Ifaha Riyali Mundocomar and Rada Churn
told me. 1 saw his heuse was a cutcberry of
barramuts; the Radshaky man went witn a
barramut, and others went with barramuts. I
was a pour man, and was frightened.

Did you see the Radshaky men go with
barramuts?—! saw thoRadshaxy people there;
all the world know they went with barramuts.

[Question repeated. )—i4. J sat in the dewan
eonnah, and saw the Radshaky people there ;
»iid from hearing from one and another, my
own sense |H)inted out to me that they went
with barramuts.

Was the liarramut which Maha Rajah spoke
to you about already made, or one that was to
be |>repared ? — They told me to prepare one :
bow should it he ready ! had 1 a barrninut cut-
cherry, that it should be ready ? (Comaul O
Deen desired to go on with his story.) Having
received my diitmission from Maha Rajah, I
went to my house at Houghly ; four or five
days alter I heard that Moonshy Sudder O
Deen was come to Calcutta. I came to Cal-
cutta, aud one or two days after Moonshy Sud-
der O Deeu arrived : after he arrived, the busi-
ness between Gunga Govin Sing and me was
settled. 1 went to Maha Rajah's, and told
him, that the business between Guuga Govin
8inff and me is sittled, by means of Moonshy
6uflder O Deen : give me Imck the two arzees,
'Maha Rajah then said to me, What is to bap-
pen in relation to those rupees you conversed
with Roy Rada Churn about ?'^J said, Sir, 1
have not received those rujiees vet; when I
receive back the arzetrs, I will make the settle-
ment with vou, and pay yuu ; and, if you
please, 1 will give it you in writing, 1 will
^ive yuu a receipt for it. Maha Rajah then
Mid, Roy Rada Chum has, without my
knowledge, given the arzees to Mr. Fowke,
and be haa translated tbem. I Mid, I had not
gifcn tbem to Mr. Fowke ; I bad not com-

I plained ; I deposited them with yon : what io
the reason of your having given them ? He
then said, Never mind the arzee which you
presented against Mr. Fowke by directions of
the Governor: do write thus, that the Go-
vernor and Mr. Graham made you do it by
force against \our will ; give a writing to this
purpose ; and Mr. Fowke, from seeing it, will
be pleased with you, and he will remember
you in his own mind ; he will give you that
arzee and the two arzees back, when yon have
got the bnsiness of Purneah. Do then give me'
an arzee of this kind. I was then remediless,
and considered in my own mind bow 1 ahoulil
get back the two arzees ; and came home, and
wrote down whatever occnrred to me, i. e. 1
caused it to be written. At noon I went again
10 Alaba Rajah's ; Maha Rajah was nut at
borne. 1 aat down till be came. I gave him
(he arzee, as he was getting out of bis palan-
quin. Maha Rajah read it; and said. This
arzee is worth nothing ; you have not wrote
well ; do you bring your moonshy with you in
the evening, it ahaJl be wrote here. 1 wac
ADIfry, and tore that arzee, threw it away, and
came home. 1 went again in the evening, took
m^ moonshy, and brought him into the presence
of Maha Rajah. Then he called his own Moon-
shy Doman Sing; having called him, he caused
my moonshy to write out a foul draught ; and
then directed his own moonshy to write it out
fair. 1 am not sure whether he made Doman
Sing or my moonshy write out the foul draught.
After that Maha Rujah took it, and struck out
some thio^ w ith his pen, and made my moon-
shy write It out fair. When Maha Rajah took
the pen to alter the draught, 1 told him I had
a pain in my iiell}', and wantetl to go home,
and that my moonshy would write it out fair.
Then Maha Rajah said, Are you in a great
deal of pain ? I said, 1 am. He then said,
(><i, and come to-morrow morning ; Rada
Churn will go with you to Mr. Fuwke's, and
will there cause the arzee to be given to you :
1 will speak to Rada Churn to that purpose.
1 went home, and then it was about a par or a
par aud a half of the night ; my moonshy and
Shuk Yar Mahomed came from Maha Rajah's.
Shuk Yar Mahomed said, Maha Rajah sent
this arzee, do you put your seal n|>on it. I
said, There was no agreement between Maha
Rajah and me about sealing it. I then gave
Sheik Yar Mahomed my hooka to smoke, and
then he went away. At ihat time my seal was
not in my tkand ; it was in my ch- fct. In the
morning 1 went to Mr. Fowke^s ; Raila Churn
was sittins; in young Mr. Fuwke's room ; 1
went and sat dowu there : when I had sat down
Rada Churn went in to old Mr. Fowke. Rada
Chum staid a gurry or two with Mr. Fuwke.
Then Rada Chum came from there, and aat
down where he sat before, in young Mr. Fowke'e
room. In a few minutes Accour .Bluniiah
rame and called me, and told roe that Mr*
Fowke wanted me. 1 went to him ; Mr.
Fowke was sitting on the beil, and gave me a
cbairtoiitdowBoppoiiletobiw; beiuitaaid

1151] 15 GEORGE IIL Trial of Joseph F&aAe and olhen^ [liS2

a few civil words to me ; be tbea took the
arzee from the bed, and deuired me to seal it.
Tliere were two Tringy waiters sod two Ben-
gallies staudinff behind ine, one of the Beii-
gallies was Aiiuos Muno ; the other I do not
know. Mr. Fowke said, Seal this, and give it.
I said, there is no agreement between Naha
llajah and me to seal ; it is not an arzee; it is
a jabob sawaul, Who is the person to whom
the words Gurreeb, Puriver, and Adawlet
Gnosten apply? and who issaes the order?
Mr. Fowke said, Leave that to me. Then
|blr. Fowke was angry with me; when be was
angry, I grew afraicL When I saw be was
angry, I put my jamma in this manner about
iny neck, and fell at his feet, and said, Mr.
Fowke, this is all a lie ; I am a poor man ;
dnnU ruin me. Mr. Fowke, hearing this, took
up a book, and cried out, God damn you, you
aon of a bitch! When he took up tne book,
and called me names, I said, Bring it, and I
will seal it. He then put down the book ; my
body shook for fear, and 1 sat down on the
ground in this manner ; 1 cried, and sat on the
ground. He tben gave me the arzee. and
I sealed it He tben cried out. Tell these
people to be witnesses ; I said. It is very well.
He then took out a furd, and shewed me.
Within three years have you given 45|000
rupees to Mr. Harwell ; t. c, 15,000 rupees per
annum? I said, I have given it. He then
■aid. Did you give the governor a nuzzeer of
15/)00 rupees? I said, I gave it. Did you give
Uusheia Jung 12,000 rupees ? I said, Yes, I did.
Did you give Uajah Ragibullub 7,000 rupees ?
I said 1 did. Did you give Cantoo Baboo 5,000
rupees? I said, I did. He said, Sign this.
Upon some of the names 1 wrote, 1 had given;
upon others I wrote, I delivered. Having
taken this from me, he saiil, Go. I ran away
from them, wiping my face. Running away
from thence, I came to the stair case, and stood
there. Samsheer Beg was standing there ; I
said to him, ^)ee, this force is put upon me.
Samsheer Beg said to me, 1 see that you are
shaking ; but what is the matter? I have not
heard. 1 said to him, Will you hear what is
the matter? Young Mr. Fowke and Rada
Churn came out laughing ; and stood at the
door of thu iiall. 1 then said to young Mr.
Fowke, Give me back those papers which
your father has taken from nie by force, or 1
will go and complain to the t^eneral and to the
colonel. When J had said this, he told me to
stay ; tiiey both went in to Air. Fowke ; they
came out from thence, alter having staid a long
time. Young Mr. Fowke brought out a cover
of a letter of this size, and said, Your arzees are
all within this; I will put them to-day in my own
chest ; do you come liere in the morning; Maha
Rajah will come also : whatever Maha Rajah
■ays, and will be your pleasure, shall be doue. I
was remediless, and came to my own house.
When I ;rut to my own house, I eat nothing ;
fear arose in my mind. When tour gurries of the
day were remaining, I went to moonshy Sudder
O Dtwa'Si and said, iU)y Rada Churn lias dealt

treacherously (dagger) by me; they have*
ed me to write a very scandalous paper of ba-
ramuds : if in the morning Maha Rajah givci
me back this paper, it is very well ; if be does
not, I shall ruin myself: do you enquire ate
me in the morning, and acouaiot Mr. Barwd
and Mr. Vausittart, that this oppresaon bu
lieen used upon me. 1 am going now to Hahi
Rajah's, and at night I will come to too.
Having said this, 1 went to Maha Rajah'i ;
Maha Rajab was in private ; Roy Rada Chora
was with him : Samsheer Bieg. Shirk Yar Hi-
homed and I sat down in the gateway. I vai
to them, Four para of the day thia opprcsM
has been npon me ; that 1 have yet four pui
of the day to remain in this manner. I aiM
Yar Mahomed for a glass of water ; and hs
^ve it me. Samsheer Beg and 1 in the cvn-
ing said our prayen together. After sayiir
our prayers, I went to Roy Rada Churn, aai
said to him. On your account I have bm
abused and disgraced by Mr. Fowke ; and hs
has, by force, caused me to write a paper I
cannot prove : I cannot sit, give me a piUse
to lay down. He then gave me a pillow, aai
I laid down. Roy Rada Chum said, I haw
explained this matter to Maha Rajah, and heii
very angry with Mr. Fowke. Maha Rijik
will just now come ; do yon go to him, he wl
tell you all. I lay there about a gurry or bior^
when Maha Rajah came out into the Devai
Connah : I tben went to him, and sat dona
Maha Rajah said, I have heard every thiif
from Roy Rada Charn : never mind, I will p
in the morning to Mr. Fowke's ; w hatever ml
content you shall he done. He then gave m
beetle and my dismission. I then went ts
Moonshy Sudder O'Deen, and told him wbl
bad passed between Maha Rajab and me, vd
then went home. The next moriung 1 went
again to Mr. Fowke's; and there was Mr.
Fowke, Maha Rajah, and Roy Rada Churn;
I do not know where young Mr. Fowke »<f.
For fear, I stood on the stair-cuse, and did wi
go into the room. About a gurry after Mr.
Fowke came out of the room ; 1 salaromtJ to
him; he took no notice of it, and went odi:
then Maha Rajah and Roy Rada Churn came
out; then I asked of Maiia Rajah, W'hat bare
you done for me? He answered, I liavec|iok(
to Mr. Fowke about it, but lie does nut heir
me: do not you mind. In saying this, 3Ubs
Rajah got into his palanquin, and went awaj>
I culled out, Duoy on the king, and thecourtt
the cjfovernor, and on the council. Haitff
called out Duoy, I tore my jainma, and crii)
out, Mr. Fowke, Maha Rajali, and Roy W*^
Churn, have caused mc to write out 'a f>te
baramud paper ayfainst i^entlemen, and J la
t;oing to the court to complain. Then Ytf
Mahomed and Neiloo Sincf laid holii of n/
hands, or one of them ; having disengai^t^ sir
hands, I went into my own palanquin. Man/

Seople, 1 do not know whethi r Mr Fuwkr'ii
laha Rdjah*s, or Roy Rada ChurnV vest
sciiflling along with my pcMiple and my beirrrt
as far as a house of l(ajah iUjibuUub'i» liiiik

1 159] fir a Contfimey agmtut Warren Hdttingt, etq* A. O. 177&

rii5i

Counab. Then they webt back. I came
«Dd gaT6 notice of it to tbe chief justice loH
8aub. i am (inv veara old ; I liare seen tbe
I>uriiara of Souban and Kiogv, and luch a
court I ba^e never seen. I have read of such
« court that now shah wan ; and at the time I
lodfi^ the complaint, I had no idea it was
«wch a court. I understood that Mr. Fowke
was oppressive and powerful, and Maha Rajah
Mid Rada Churn were so likewise; and did
not eipect to have found such justice to a poor
nan. I thoug'ht to myself, I shall he ruined,
my post will go from me. When I |^o away
min the Ailawlet, Mr. Fowke or Maha Rajah,
who are the masters of the G4>untry, will im-
|iriaon me, and very great ruin will ensue ; and
BO ruin will accrue to you« from hearing Mr.
Fowke*s, Maha Rajah's, and Rny Rada Cbnm*s
words. From doing this business to the plea-
sure of Mr. Fowke, Maha Rajab, and Roy
Rada Churn ; I tliouifht, if I would agree to
take a falne uaili b<'fvre the conimitiee, no ruin
woaid ensue ; hut my religion would go.

Did Mttlia Rajah or Ri>v Rada Chum ask
you tor the harramut P and did they tell you
in* what ptir|Mise they wanted it ? — Wbat Maha
Rajah tuid ro*.' almnt it I have caused to be
wrote down, almut the gfovernor's being put to
•haiiie in Europe : Mr. Barwell, Mr. Vansit-
tart, and Mr. John Graham, and their consc-
ience ill this affair, will be less.

From M horn did you hear that the governor
«Dd tbe other gentlemen would be brought to
Bbame? — I heard ii from the Maha Rajab, Mr.
Fowke, and Raila Churn.

When you had sealed the arzee, was it rc-
tnmed to you or Mr. Fowke .^ — Mr. Fowke
kept it.

Do you know what use was made of the
Srxee? — f know nothing of it.

When you say you know nothing of it, do
yoa mean, yon have never seen it since P-— I
can't say I have never seen it since ; I saw it
«t lord Saule's, and in tliat room, (pointing to
tbe Grand Jury room.)

Did you give those sums to the governor and
the other gentlemen ?— I never gave any body
4re ropees.

Then why did you say to Mr. Fowke that
yoa had ? — Mr. Fowke had taken up a book,
umI was in a great passion. I did it through
ftsr; if yon was to frighten me, you might
make me sign an assignment of the kingdom
flf Indostan.

How came yon, when you was frightened,
to lay Yea tn tlie questions pot by Mr. Fowke f
—I was frightened; if he did not intend
that I should say Yes, why did he write the

**crh

by did you think it would be agreeable to
Mr. Fowke? — Whatever Mr. Fonke would
kftTe bid me write, I would have written.

Why should yon think Mr. Fowke would be
angry if you said No p — I was in his power ;
bo was in a passion, and angry with me.

Doo't you know that Mr. Fowke wanted
joa to aay, i did sot giYoF«-[CoaM gtl no

VOL, XX.

other answer to tliia question tbad wbtt wa«
given to tbe last.]

Wbat did Mr. Fowke say to you about tbo
ford ?— >He aaked me if I bad given Mr. liar*
well 45,000 rupeea? 1 answered. Yes; 1 was
so frightened, I should have said Yes to any
thing Tie said.

Could you collect, fh>m the manner of Mr*
Fowke's putting the question, that he expected
you should answer Yea P^-1 knew very welf^
if I did not say Yea, 1 should be disgraced.

How did you know that.^ — When I waa
sworn at« and called names, and tbe book lifted
up, what remained bot to answer as Mr. Fo\i-k«
pleased P He did not tell me to say Yes ; but
he asked me if I did ; and I answered Yes.

What reason bad yon at that time to sup«
pose, that Mr. Fowke wanted yon tosay tlioso

ftfutlemen fiad received money P— At first wheA
went to Maha Rajab, be asked for a barramut|
and for tbe barraniut of Hidgelee. Why am
I asked this question, when be baa a cutcberry
of barramuts P

Who do you mean by heP Mr. Fowke or
Malta Rajab P— ft was first held at Maha Ra<«
jab*s, afterwards at Mr. Fowke's. Who is liei
that all the world should go to him P he is no
counsellor : there is no other person in Calcutta
tliat has such an assemblage of black people at
bis boose.

Who ordered the persons to follow your pa«
Isnquin, when you went from Mr. Fouke'sP^-^
I do not know.

Whose servants are Sheik Yar Mahomed and
Netto Sing? — Maha lUjah Nondocomar's.

Did any body else touch you P — Yes, all the
hircarrabs.

What i\o yon expect would lie done to yoii«
if your people were less powerful than theirs?
•—How do 1 know whether they would carry
me to the general's or elsewhere P I thought
they would either confine me in their own
house, or carry me to the general's.

Why did you particularly think they would
carry you to the general's, more than to any
other of the council P — Mr. Fowke used to go
to three gfnilemen, the general, colonel Mon«
son, and Mr. Francis. 1 have seen it with m/
eyes. ,

ft' Mr. Fowke had wanted you to a wear to
this i'urd, would you have done so P— If be had
kilted me, I would not have sworn falsely ; but
if he had demanded of me to promise to sweac
it another time, 1 would have peniiitted it |
bot 1 would not have done it.

You say, you have seen the Radshaky peo«
pie, and that it was bad ; what did you mean
by bad P — I saw them there ; and I thought
the keeping a cutcberry of barramuts was Iwd*

Do you know Barnassy Gbo^e P^ 1 do; he
is a ryot uf mine.

Did he make any complaint against jon P—
Yes, he did, to the general ; be sent for me ;
he Isid his handnpon the nuzzer of five lupees
which 1 ofiere<l, but did not lake ii, and gave
me beetle, and told me to come to- morrow.
His Dewao toki hiflB I was come ; tbe gaaeral

4JK

1155]

IS GEORGE UL Trial ^Joi^pk

andoihin^

ri\w

wrote a chit, and sent it and aneCher paper, to*
crelber with me and Baroasay Ghote, to Mr.
Fowke, and Mr. Fowke woald enquire into it,
and report it to him ; then the ipenerara man
went with roe and Bamaiay Ghoae to Mr.
Fowlce'a hooae ; be went up staira, and left ua
two below ; the serrant then came down ; and
laid, he had deliYered the chit to Mr. Fowke ;
that Rada Chum waa then with him ; aud
when he was gone, we ahoiild be called up.
He went away in about four gurrys. We went
up ; Mr. Fowke was sitting upon a chair ; he
(hen begah to enquire of ae about Hodgelee,
the rcTenues of it, what it waa worth, and
CTery circunstanoe about the salt, and all
other matters about that country. fiar-
nassy Ghoae then told Mr. Fowke, that I had
rented the Tecka Collaries,* of Engliab gen*
tlemcn, at a Tery great ezpenoe.

What do.you mean by a very greatexpence P
— Baruassv Ghose told Mr. Fowke, that I had
expended large suma of money on bribes to
English gentlemen for the Tecka Collariea.
Mr. Fowke then asked me, Does this man

rk truth ? I said, He lies. Mr. Fowke re*
I, You haTe giren rupees to the English
gentlemen. Then young Mr. Fowke came,
and there was a great deal of conreraation be-
tween them ; and then young Mr. Fowke gare
me my dismission ; and told me to come next
day. f went Accordingly the next morning ;
and Mr. Fowke anin interrogated me, as
to all the business of the country ; and again
asked me if I had not given money to Mr.
Vansittart. I answered, It is all a lie; and
then Mr. Fowke was angry, and he and young
Mr. Fowke talked English together, and dia-
missed me. I went again on the third day.

What date was all this? — I do not remem-
ber accurately the day 1 received the chit from
the general ; this conversation was either the
last day of Aughun or first of Poos.

What passed on the third day ? — Re asked
me what 1 had given to the English gentle-
men, and what to the Mutsuddies.f He told
me to tell the truth : if I did not, I should be
greatly punished. I said, 1 had given nothing
to any body. He said, you speak this without
reason. I then said, I am a farmer, and no thief.

Did any thing more pass on the third day?
•-I only went to my own house.

Did you go to the general's ? — I went ; but
I did not meet with him at home.

What did you next ?— 1 came home and con*
sidered in my own mind, whatever has past
between Mr. Fowke and me, if I write, and
give. so much, 1 do not know whether the (^o-
fernor will be angry with me. What did I
know that the governor would be angry with
me ! therefore J did not write much ; but, hav-
ing caused a little to be wrote, I went and gave
it to the governor, and I told hitn all by word of
inouth. The irovernor said, You have wrote
in your arzee little, and by word of mouth yon

* 8Alt Contracts.

t Clerks or Wriierk io the Public Offices.

aay a great deal; wbatefer yon tell ne by
word of mouth write down io an vice, and I
will inquire about it in the eommittee. 1
answered, 1 have not nav naoonah^ witb ase ; 1
will write it out, and briog it to mermr
morning. The governor nnawered, Ifyoo bait
not your moonshy with yon, take mine ; wd
whateTor yon haye la write, lie wiU write k
The worda the goyemor tbeo used, ia ihi
Hindustan language, I did not onderaHni
He desired Mr. Vansittart to expbin them w
me in Persian ; then Mr. Vansittart explaiatd
them to me, that the governor had aaid, Hj
moonshy is here ; do yon caaae it to be wraw
by hiss. I agreed to it ; and the soveisv
Gilled his own moonshy Shereit Onllah Ca«%
and told him, whatever this man has to vrin^
do yon write for him. I then caused bia n
write whatever had passed between Mr. Fseks
and roe : having wrote it, J gaye it to the ft-
vemor ; and the governor having eauaed it n
be read to him by the moonahy , he kept it, mi
gave me my dismisaion, and returned meihi
amall arxee I had given him. I then caaKli
myown house.

Was what you dictated to the moeaahy I
true account ?— Whatever paaaed between Jlr.
Fowke, Bamassy Ghose, and myseir, I casMi
to be wrote truly.

Did the arzee contain any thing nrioietitt
what passed between Mr. Fowke, BamMj
Ghoae, and you?— There might be a ward «
two wrote more, about my own affairs, which I
do not remember, whether relative ta Ml
Fowke, Bamassy Ghoae, and n>ysetf.

After you went to Rajah Rajebullob, vfc*
did you first apply to ? — I first applied to ikt
governor; he said, I cannot ud minister jsuifli
to you ; they are three gentlemen ; 1 an b«t
two.

Who did he mean, by three and two grBtI^
men ? — I do not take upon me to explain tki
governor's meaning. He said, If you biff
any complaint, the king's court is here ; kip
your complaint there.

Did you lodge any complaint ? — I then nid,
How shall I gel to the Adawlut, to' lodgsev
comulaint? Mr. Fowke's people will take ei
on the road. Then the governor 8|ioke tos
chubdar,* and said. Do you go a!on<r with Ikii
man to the chief justice's house. I then vat
to the chief justice's, and came inui kil
presence.

(Mr. Sumner produces two arzees, andalc^
ter io which they were enclosed.)

Prom whom did you receive these ? — 1 1^
ceived them from one of the secretaries of tki
public department ; I received them from Hr-
Auriol.

Croti' Examination qfCcmaul O Dsem.

Have you eanversed with any bodysaiki
anhject of your ezaminalioo ? — With nobsdj.

* A ataffbearer ; one wbe waits with a loaf
stsff plated wNh silver, and runa bsAn bii
masteri prociaimingelaud Ihi Mm,

IrsCampmuj/againH Wmrtn Hatting, etq. A. D. 1775.

Rare yoo giten ko
or wriliD)[, directly or imlirectly ? — I h»e
•aid any ihiap li> any body, or nwd ibu ap-
p«ftrKnce gl' jmii aod ink.

Ha* any niaonihy T—l dn not know tbatany
tnooDvhy liai; I was above; he was beta w ; I
tlJil ml BiiRlb to him abniil it.

Ttit lbs ilay of C'liile yoa went to borrow
nioniy of Miha Kajah Nundooomtir.''— 1 fint
4c<iiBDdc<l il on iho lirsl nl' Cbyle ; I got tbe
nine* on ilie ]3lli or Itlli.

I>id yoii rcceiro the money F — Vet; I wu
^aid iiiguIJ muliurs.

"■■ you gire any MCurity ?— I gaio a

[1158

IVhcn did you ap(ily In borrow tlie monev?
—I oflen More borrowed money orbim ; lliia

>l the I

borronrtrd ni

« aa il withii

noneynrMaha RnJaliP i
■wo or rour nioDthi f— Nol wilbin Iwo or loi
IBMIllll.

[Question repeated.} It was between ii t

Un

Are ynu sure it wb« not moref — I paid Ibe
•aUiice due tu illaha Hajah.

[Quealiun repeated.] Il waa two or fnor
«««■« aince I borrowed, when Rupca O Din
Cawn wai Phouadar* of Hougbly; I hare
burrowed none noce ; I borrowed ihrau);h the
■WBiia of Koy Rada Cburo : il was in the
year of the laiiiioe, fire or lix moolhi before
titB Taruiue -, 1 canifiL exactly Hx the date.

Dill you never apply between thai time and
Chyle to butruw money ? — I never made any
■pplieuioa.

Had you ever visited between ? — 1 had fre-
fneoily.

When did ynu latltiail him before the monlh
of Chyle ?— My aon was married in Ihe miinlh
•r Phau^UD, anil I ilivn |Hid tlie cuslomary
oomptioieiii 10 Mabo Ksjah of Mnding aweei-
Biaau.

When did yon *i«il the Maha lUjahP— I
cwTted ihe iwralmeala niya«lf, and preaemed
ban with a nuzseer. We were on terms of
fneoiltihip a Juiik lime Wtiire.

Uuw liinf; iMlore the nionlh of Chyle, in
wllicb vou bomiwed the money ° — li was tbe
Imh ofPhaugun,

H'by did yuu apply to borrow money } — 1
bad oecaaiou tor il; iherelnre I borrowed it.
The bond carriea no ioieraat of ooe rupee per

Had yon any cnnrrraatlnn on any other tub-
JMt with Muli4i Rajah ? — Wlieoever I weal, he
.conrennl with iiwoa no other lubjeclbul itie
batamnl.

What Gonteraatloii had you the day you re-
eeivad the mouey t — I diil nol aee Maha Itajab

■ilh Uaha Uajah

Wben 1 reeeiveil tlie money.
Ilail you anv oooirraaiHi
l^'lfca lime he desired you to go to itoy
mUf Chtira about the mimry F— There
^^^■•■•mation about ibeHunny Be^u

Ik

\ Qu. Fvnidar, a polict iiagitiiau.

Did Maha Ra|ab ask any qiirstiona of you
vourselfi'—HeBalied roe if i bad heard nbal
had pBMed belweeo ihe governor and hitn }
be said, 1 waa not hia enemy ; 1 waa Joba
Urahatu'a.

Did he oak aay other question ?— [He re-
ialea word tor woni what he saw yeaieiday,]

Did lUaha Rajab ack any particular (joes-
lioDiP— -Hear me wlial I am going to relale:
be aahed barramiitn.

What did heaak about barraroiita f — Heaaid
to me, That when Ihe ifovernnr told me, I will
be revenged on yon, I, Imng remedileaa, eoti*
anlied withHr. Powke. It'ynii will br^og loroo
tbe pepera of barraniula aeainit il>e gniernor,
Mr. Uarwell, and Mr. Vaniitlirt, those gdille-
n>eu will mvel with ahanie at home, anif 1 wiU
give yoii tbe buainesa of Aumeen of iba
Khalia.*

Did be iik yon any other wori1« except
Ihote about Ihe barram uls f — He aaid, Do yoti
lbi< buainesa of Hedgelee Comgeer, Tunilook ,
and the salt Hhaala.t aod from wherever you
can. By business, I mean bsrnimuis.

Did this coBvenialton pass on ihe day Maha
Rajah bid v<iu apply to Roy Itiula Churn f-~
Vea, thai ilsy ; and he laughed and lold me,
When tlie Burdwan Rajah geta bis drea^
Ibeo 1 will confer with you.

How came this pamcuUr conversation lah«
iutrnduccd? — How should 1 know what wm
Muha Rajah'a reaieiia for introducing it ?

there to tiiil him ; he told me all these wordi,
and gave theae antwers.

Tell the coDveraaiion.— Pirit, in the monlh
of Phaugun I weni lo Roy lUda Churn, and
tuld him, Uo vou tell Haba Rajah, that Ihert
is to be a wedding of my son, and beg him la
receive Ihe sweeimeals. Huy Rada Churn
taid, Malia Rajah wilt take the aHeelmeala a)
your aon'a wedding, and will sliew you maoy
Kindnesses; this is your old home ; you must
be on lei;ms of friendship wiih Malia Rsjab.
He has taken ptoper measures afiuut the Go-
vernor, Mr. Barwell, and Mr. Vanailtart, and
other genllempD. What Ihey have ale, lliey
will be obliged in diignrge ; aud will be piii to
shame in Iheir own country, and will be called

or d<d he say that Alalia liaisti nunilo>
aaid BOF— -It Haa what Maba H^jah

Go on. — And \a proportion to the bad name
that ihe geniiemen have given to Maba Rajab
lirre, he will have a good one in England. 1
(l.'uroaul)Baiil, There used to be great fiiend-
ship between the Governor, Mr. Barwell, and
Maha lUjah. Was ii this ? What i< ilie r>fa<.nn
nl their Beoaralion ? Ho answered, Malin Rajab
waa Hr. John Gralian'a enemy i he waa oM

• Cnmmi»<ioiw>rorthoTrea*arj.
I Properly molt, n

1159]

15 GEORGE IIL Trial qfJatefA Fmie and aOen. [HGS

•1 eoemy of the GoverBor or Mr. Barwell.
Tne Governor aufl Mr. Birwell bad tliem*
selves marie the Maba Rajah their eoemy,
•«d had forbid him to go to their houses ; and
mi&m the Governor prewe&dlaha Rajah to come
to bin house ; and Alaha Rajah aays, I will
never see his face ; 1 will never ^o ; and I
shall cooHider well of htm. I then askc^, Why
does Maha Rajah go to Mr. BarwelFs and Mr.
Vansittart'd ? Roy Rada Churn answered,
They are always calling him, in order to re-
concile him to the Governor ; but Maha Rajah
will not. I said, Great men know the business
of great men ; J am a poor man : go and tell
■o much for me to the Maha Rajah, that I am

going to the weddinir of my son, and request of
im th^t he will agree to accept of the sweet-
neals. He then said. Do you sit down ; lam
Ifoiiig to Maha Rajah. He returned in two
gurries after, and aaid, I have aatisfied Maha
Rajah ; he will accept the sweetmeots. If you
•re to go to Houghly to-day, go, and send the
sweetmeats; and if you do not go to-day,
come to-morrow, and get your dismiuion from
Blaha Rajah. I said, I have taken dismission
from the governor, and all the gentlemen, ex-
cept Mr. Cottrell ; I will go to-morrow and get
my dismission from bim ; and at a par and a
half of the day I will come to Maha Rajah, and
iret my dismission from him. 1 went next
morning, got my dismission from Mr. (Cottrell,
and at a par and a half or two pars of the day
] went to Maha Rujab's. He was not there,
nor Roy Rada Churn. I sat down in the De-
vrsn Connah : just as I sat down, Maha Ra-
jah's sewarry canoe, and he also came. 1 then
went down, and Maha Rajah wasirot out of his
palanquin ; as Jie was ^;oing in, I paid my sa-
Jams to him ; Blaha lt«jah slopt, and said, f
have heard from Roy Rada Churn al>out your
marriage: may Gud prosper it ! Undoubtedly,
when there is a marriage at} our house, and
you send sweet oieatii, 1 will receive them ; and
if there is a marriage at my house, I will send
stieetmeats to vou. He calU-d lor the puodur,
gavfc me lieelte, and my dismission. I then
went to Houghly ; and at the marriage of my
son, I sent the sweetmeats tu Maha Kajnli and
Itiila Churn ; they both accepted of them.

the particulars ; bat people ia gvacnl say, tkit
there was great friendship between the goter*
nor and you, and now there is m great diuxccs ;
people laugh at this. If the xmindan* bad
done it, it would not have ai^i6ed ; but tbit
you have done it, is very bad. Then 31aba Ra-
jah said. What can I do? I wax to escape froB
the governor's bands. If 1 had not done it, I
ahould not have escaped from the goveraoKs
hands: being remediless, I did it. Hetbcs
began to relate what 1 related yesterday vak
to-day. The conversation went on as 1 jci-
terday related it.

When did yon speak to Roy Rada Cbiifi
about the rupees on loan.' — When I wcntsp
to Houghly. Msha Rajab then told me tap
and get the rupees from him.

What passed about barramnti «m this ImI
day you mentioned ?-»W bat I have rdalc^
interpreting many during ibe course of the
examination.

What was said about barra mats? — Heiaii
I was an enemy to John Graham, and be an
to me. The Gorernor said, Be on your gmid,
I will consider of you. I have consuhcd aiik
Mr. Fowke. BIr. Fowke says. Do yoa giit
me harramnts against the Goeemor, Mr.
Barwell, Mr. VaosiiUrt, and other gnth-
men ; they will meet with shame in their on
country ; and I will pnvcurc for vou the kalW
of the aumeen of the khalsa. I, being me-
diless, gave in a barramut against the Gonr-
nor, on account of Munny Begum. There ■■
a conversation in the council about the gorcnnr
and me till one par of the night. I have pftr*
ed the governor to be in the wrong. Do jn

* landholders. The terra zemindar is ^
rived from the Persian words zamin^ land : vA
duTy holder or keepi'r. Uuiltrr the Mahomrw-
dan government of India, the zemindar wasii
oliicer charj^ed wiih lliesuperiutendanreulilje
lauds of a district, financially con^ifterfd, ike
protection of thecuiiivaiurif, and the roaliuM
of the fjoveriiment »hi«re of the produce; ed
of uhich he was ailowetl a commi«i3M»
auiountiutr to al.out 10 per cent., and orcaUtfC-
allv a special grant of the i^overumeut Nb^rti
a pai t of the p'oduce, for his subsistence, tens-
I returned the first of Ch^le — 1 do not know | ed a 2suuncar, \% the appoiiitinent to iLi
whether the 30th f'hauguu or 1st of ('h\lc. | office Has generally coniinuetl in the same fv'*
The first day after ni^ arrival I h( nt topav'niy j son, ami IreqnentU tu his heirs, bo, in |iii>cns
respects to the Govcruor, Mr, Vjubittart,' ^\A i of time, and thion^h the dfcay of th«: ruii:;
all the trei.tiemen. The^d day 1 went tu Maha ; powers, ami the confusion wlucli eu^urd. ui
K:i)ah*»i. Maha. Huj«h was not there ; 1 went \ hereditary right (at Ih-si only prtrscriptne- *>
and sal down in the Dewau Connah; in alitile claimed and tacitly ackno\«letl|;e<l lo be is w
time Mdha H.ijah came. I presented him \ ztmindun ; aud (iiarticuiarly iu the prc>«;x*
wiih a liUzz^iT of one gold mohur. He took it, I of Benir:il) from bfini: the mere Kup^^•DU%«■
and desiietl inetosit d(»wn ; which I did. Jle I ants of the land, tnf\ have been dei-ia^t^t 0>
first asked me about my health, and the mar- { lieri'ditary proprietors of the soil ; and Utf ^
rias^c. He theusjjd, Did you hear at Houghly I fore t)uctu.uinir dues of ^ovt-riinicui fea<Ci
what paSM'd httweeu the ffoveruor, and howl I under a perniinent settlement, lieen urs:
have pro\e<l him to Ik? in tlie wronif .' I said, I
have uol hea.d particularly ; but 1 have heanl
you gave in barraunils against the tfovernor,
and that you have been before the council with

iMped 10 ibe htfr«Duiiii | h#vc ii«t beard

biy lixeil in pe petuity. — For further ilT^^
iMiu on this suti|( ct, see the Fitih Hgy^ ■
ihe hon. Ht>u<»e nil-mmnon^) nn the Aii-'^d
the Kusi India C'nmpauyi and Ihc
tliereuDio Mpexed,

1 161] Jor « CMMptrne^ agia»A Warren Huttings, etj. A« D. 177&

[iiii»

bring barramute of Hiilgeleey 6ec. agiintl the
tame ureutlemeo.

Did Maha Rajah desire you to get fmlae
barraiDUtsr— He said nothing to me of false
barramuts ; he desired me to bring such as I
could get.

Did he desire you to get false barramuts, or
of such people who had actually gireo mooey P
—He never said false or true.

Did you understand that he meant false or
true ? — How should I know what was in his
breast ?

If vou had been willing to oblige biro, do
you think false barramuts would have answer-
ed that purpose ? — What 1 know, and he said,
1 tell. 1 cannot tell what he thought.

Was the matter of the arzees, oumplainiog
of Giinga Govin Sing, true or false .^— I did
not me them in as complaints ; I did it to
i'rigbten him. 1 wrote therem whateTer I
thought.

[Question repeated.] I did not do it as a
complaint ; 1 wrote much to frighten him.
There was some money due to me : I pot in a
^eat deal more to.

What is the amount of the money demanded
by the arzees P — You have the ariees, look at
them.

Was the whole of the money due demanded
_M the arzeesf — It is the custom of farmers,
where one rupee is due, to put in four. If 1
complained, 1 should specify ; if on oath, 1
should specify. There may be mooey due
ikom me to the Company : I should, if asked,
My there was none due.

Is that matter settled between Ghinga Covin
Sing and youP — it is, by Moonshy Sudder O
]>een.

What did you receive P^No one talks of
their own riches.

[Question repeated.] IfNr. Cottrell waste
4cDow what 1 received, he would, upon my
.going away from hence, immediately imprison
me. 1 am iodebteil to other merchants: if
they were to know I had received money, they
would come upon me. Whatever was wrote in
he arzee, I got.

Did you get 26:000 rupees, which is men-
liooed HI the arzee P — 1 did get 26,000 rupees.
Farmers engai^ed in business have various ac-
compts. I owed him iiiuney ; that was de-
4lucted. I received some money.

Did you receive the whole in money, or
was the debt of yours to bim set off?— It was
•e«tle«l by Moonshy Hudder O Deen. What
was due to me 1 got ; what was due to him
beg|>t.

Did you get 6,000 rupees in money or seco-
lilies P — I got more.

Did you get it iu cash P— I received in ready
money more than 0,000 rupees.

Did you receive more then is due P — I got
10,000 rupees in ready money: 16,000 was
4lue from me to him ; that was allowed him.

Waa the matter of complaint in the arzees
4nie or false P — What was wrote in the arzees
pictly true, Mid pvtly extgganaed from

the enmity between us. I had separate •€«
compts, by which piurt of the business was
settled.

Was that 16,000 rupees due on accompi
mentioned in the arzee P — It was not; thai I
wrote to frighten him ; I had not Iodised a com*

flaint, I bad not taken an oath. Now I have,
will answer whatever you ask.

Were the 10,000 rupees due on the reasons
in the srzee P — Gunge Govin Sing, as Dewaii
to the Committee of Revenue, should have made
advances to me on account uf the sali-Horks:
instead of making them, he detained as a de-
posit, and made over that sum as a traasfery
for my account of land revenues.

Was you greatly indebted ou account of your
land revenue P— I waa indebted a Urge sum of
money.

Did Nondooomar ever tell yon, that Roy
Rada Chum had informed him what passed
when he delivered the arzees P — Yes. Thai
when the account came before the council, the
general would see that justice was done. How
do I know what was in his breast P What he
told me, I have answered.

When did you first afVer go to Mr. Fowke's T
—I don't remember the day.

As near as you can recollect? — 1 think the
dsy following.

Who did you see at Mr. Fowke'sP^How
can 1 tell P There was a cutcberry there.

Do you remember the names or any persons
you saw there P-i-I can't tell the name of any
one. There were a i^reat many people; ze-
mindars, moguls, liootaus, aud hircarrabs.

Do you know the name of any one persoB
you saw in the house? — I did not go to write
down their names. I mivlit have seen msny
whose namfs 1 knew, but don't recollect.
There was one of Mr. Fowke'8 Noouahys^
either that or the next day, I don't k»ow which,
quarrelled with me; and Roy Rada Chum
threatened the Moonshy.

Did you see any one the first day whose
name you recollect.' — I do not recollect the
name of any one.

Did you see Mr. Fowkep — I presented a
nuzzeer to him.

Did yon see yonnofMr. Fowke?— He was
in the room ; 1 saw him sit writing in his rooni.

Did you s|ieak to him P*-No.

Was there much conversation between Mr;
Fowke and Roy Rada Chum ? — Much laugh-
ing and joking.

Did you tell Mr. Fowk^ what had pre*
viousiy passed between Maha Rajah and you?
— Not at that lime. [Do what Maha Ra*
J4b bids you.] I neither understood it to be
with respect to Gungs Govin 8iug, or any
body else. 1 understo«)d m n»y own bresst, I
understood Msha Rajah and Mr. Fowke talk in
this way. I said to myttelf, I am poor, don't
go into such compsny ; ami I went to neither
of them for two days. I went on those two
dsys to pay visits ; why should I go oo this
business ?

Whm waf Mooutlty Sudder O Deco »t ttutt

1 163] 15 GEORGE IIL

time f— He wm at bis out-houte ; not in Gal*
eatta.

Did you make any ohjectioni to what Maba
Jlajab ftruek out of the arzee? — No.

What were the words f — 1 remember, Oe*
reb Poriver (and repeats some other words ;) I
heard it read ; Jl)Ut do not remember.

When did yon ^ again to Mr. Fowke'sT —
The next day, at nine in the morning, or rather
After.

Who was in Mr. Fowke's room wbea you
went in?— Accoor Monnah called me, and car*
ried me with him. Mr. Fowke was sitting on
bis bed, with bit faet up ; there were two Ben-
gallies and two writers standing beliind me.

How long did the two Bengalties and two
writers stay there ? — As long as there was good
conTersation between Mr. Fowke and me, I
know that fonr men stood there ; when he took
up the book, and 1 threw myself down on the
ground ; 1 then looked up, and said, Bear wit-
ness ; and after that, I don't know who went
or oame ; I was down on the ground crying.

When you called to bear witness, were the
two Benfirallies and two writers in the room ? —
1 do not know whether any one was there; I
hardly saw myself. When Mr. Fowke took
up the book, and f sat on the ground, and called
out. Bear witness, 1 do not know whether there
were a hundred or none : I was distressed at
xnyown situation.

Did any body say any thing to you ? — No.

Did any person in the room do any thing .^—
What should they do?

When you ««cnt into the room, was the door
fastened ? — When 1 went in, it had been fas-
tened ; when I came out, it was not fastened ;
when I went away, it was opened.

Were there many people about in the fe-
randa ? — At that time there were but two or
three people ; it was past noon ; they were all
gone.

Did you offer to go away when Mr. Fonke
threatened you? — How could 1 go, without
Mr. Fowke's lea?e ?

Did you ever ask leave ?—Wliv should I
ask leave ? I put my clothes round my neck,
and laid down.

Did any person be^des Mr. Fowke threaten
yon? — Young Mr. Fowke shewed me kindness.

Was be in the room then? — No; when 1
eame to the stair-case, I saw young Mr. Fuwke
and Rada Chum.

Are you sure you had not sealed the arzee
before these threats ? — I did not.

When you sealed it, did you sign it? — I do
not remember whether I signed the arzee or
no : I think not.

Do you mean by signing, putting your name
to it, or putting * volaab' to it ?— I was at that
tioie out of my senses ; I can say with cer-
tainty, that in my remembrance I did not
•ign it.

Was yon ever threatened by Mr. Fowke
BKMrethanoBceP — Not after the other dispute
in the month of Poos.

DidlwtkrMin ikenr— Itwii lunk odd

■

qfJo9eph Fmke and othen^ [ IIM

versation ; but not ao bad as the last. I have
not seen him since, except at the chief juslic8*s
aod here.

Are yon sure yoa did not see him agam thai
day?— Why should I? Young Mr. Fowka
comforted me : I went away to my own bous^

At the time the book was taken up, who wers
there F — ^The four men were there ; but not
when I was crying on the ground.

Did you write on the ground ?— Yea.

Did you carry a pen and ink with yon ?—
There was a sicca dewat, pen and paper, ready
upon Mr. Fowke's bed.

Do yon recollect what waa wrote?— Fiis^
the name of Barwell was wrote, 15,000 raaees
per year for three yeara, 45,000 rupeea. The
governor, in a Nazziirana, 15,000 rujiers, tbs
word governor waa not naed, but Mr. Ila8tiog|&
Hushier Jung 13,000 rupeea. Raja Rajcbal*
lub 7,000 rupeea. Cantoo Baboo 5,000 n-
pees.*

Had you ever seen that furd before ?-»Na.

Have you since P — No : it ia oot a furd ; bat
such a piece of paper aa this, [abowiog a ahcH
of white paper.]

Was there any other writing? — Nathiaf
more waa wrote; what be told me, I wralc;
nothing else was wrote: the words I wiili
were * Rusaan nedum' and * Dadum.*

How many times did you write tbtti
words ?-^0n the first name I wrote * Rimu
nedum,' 1 wrote one or the other oo tba iif
names.

Did Mr. Fowke read the furd to yoa ?— Bt
took it in his hand, and aaked me. Have ysa,
for three years, given 15,000 rapeoa a year is
Mr. Barwell ? He did not tell me ao from rtad-
ing the furd. I answered, Yea, Sir, I havf
given it.

In what language was the furd wrote?— Is
Persian.

In whose hand did it appear to be writteoP
— I don't know ; the letters appeared to bi
Haila Churn's : 1 speak from guesa.

Uowcame you to say Yes, rather than X»,
to Mr. Fowke's question ? — He held op a bnok
to me, when I refused to seal the arzee ; I ia-
tended to say No.

Did you think Mr. Fowke would strike yao,
if you did not say Yes? — When he held np
the book, upon my sa^'ing No to his desire a
sealing the arzee, I conceived he would bsre
struck me if I had answered No to the quesuos
put as to the furd.

What distance of time was there betwera

* The Rupee is, as a silver coin, of compa-
ratively modern currency ; for there do ooC
exist any specimens in that metal of a date sa-
terior to the estabhshment of the Mobaraai^
dan power in India ; of gold a great rossy
have been preserved of far higher antiqiittj*
The imaginary rupee of Bengal, caUed tfa
current rupee, in which the Companv'ssr
counts were formerly kept, waa nominally ft-
lued at 3i. and the real ooiii, or sicca rmpitt If
par canl. bettarlhiiilbe nuiiBt ropai.

. t

■RiBS'

i] Jot a Compiracp againtt Warrtn flaslings, eiq. A, D. I77& [lljK

wroie, Tbe geaeral has ref«tred me to Mr.
I«1I the mo- Fowk«; Mr. Fuivke basiaid suaadso loinei
aad (hen, liiTiug given va llii; smuK anee In
Wtts done will), Mr. Fuwke proJuced the tbe gorerQor, 1 told bim ercry thing b; wwil
furd. of moulh.

tVai it the smftll wxee that was sealeil tnd
eenl lo Mr. Fonke, auil then carried la the go-
vernor ?—Wbeo lUaha Kajah requiivj the
arzce frooi m^, llic man ubo had been inr
MooDshy nas giinc botne. I caused lo Lie wrots
whatever WU iu isy renkeiukrance by aty aew
Monnsby.

'" thai the oame Uial wasgiven lo the go.

IV thinK paw, Wt*een yoor aealiog'the
arzee and Mr. Puwke's producing the furd ?—
Nu : noihinn piiHeil.

Did yuu sfe ibe long arzee nilrnvsed ? — I
did not spe il ; ii wh< nnt bel'ure me : Mr.
Pr>»k^ aaid, Be »i(iieFiEFa lo it.

Were Hie two Trin.y wriiers in the room
black or ubite^—BIack; 1 koDiv une; the

Where uas ibc little araee aealed t — la my

Did yoii !phI any other arzee F— Two Bgainil
Gimea G^iin Sng, in niy nun bouM. 1 aeul-
ed nn oilier in Mr. Fowke'a bouse.

Wa< ihpre any body in tbe room beiides
Mr. F"«ke and joiirseir? — Yes, there were

Do

1 heliei

3 the »

A* !H>nn B« Mr. Fuwke luld iiie to go, 1 weal

Did yini ubaerie any diflcrenl people In
room, at tbe time of your recollection ? — H
do I kouH ? I went auay wiping my face.

At tbe lime Mr. Ponke lifted up the book,
what position vtai he in ? — ile lal upon the bed,
with hia feel banging down.

At the lime you aeaW the lai^e arzee,
where wasiiP — Mr. Pnwke toi^ it from Ihe
bed. near the pilloiT ; and asked ma whether
] had given thai araee ? I aaid, Sir, ibis is not
an araee; il is a jabobaawiiuh Maha Rtyah,
having taken a draught, has given il for your
Mtiat'aclion. When I was upon liie ground,
he gave it inio my hands, and 1 lealed il.

Did jrou either sigu or seal tbe furd ? — I

[Qiiealian repeated,] — 1 neilherpot my seal,
nor wrote my name. I wrote Ruasan nednm
and Uadum. WbnteverMr. Foitke bad tolJ
tDe, I should have dune.

Did Mr, Fuwke bid any hoily be <viliies«es
la the furrl P — I put my duakeel lo ihe furd,
and Mr. Fuwke bid me gi>.

When Mr. Fowke pave yon Ihe furd, did be
bid yon do any thing with il f — He told me lo

After ynu had wmle upon il, as Mr. Fotfke
£d not uiuler^itand Persian, did he desire any
body lo explnin it ? — Nn.

At the lime you went lo the goffrnor, why
did ymi carrr an arzre dilfereiiL lo that whicii
jou aflenranls wrote by ihe goTemor's Moou-
■liy 7 — Tbe general had referred me to Mr-
Fowke for enquiry. Mr. Fuwke is nn Engliab-
■pan, and I «in a |io<>r farmer : ilie governor is
the mailer ot ihe country. Gml knows wlie-
Iher he wdl be angry with me if 1 wiitea long
BTKee. therefore 1 wrote a liiile, and said a great
telbjr iruil 111' ioodUi. IntbelitOeuxeewu

jab, Il
ttyali

-Itw

At tbe time the barramtils were lirsl men-
tioned, by tvhuni were Ihey tpeuliooeilf —
When I spoke about Ihe aHeelineals, lUiI*
Churn Arel luld me.

Did Rada Churn lell you to gel barramulj,
or did he tell you that Malta Rajah wauled
Ihem ?—At that time he told me what I hara
repeated abuul their cwming to ahamt: in Euk>

Did Roy Rada Churn ever desire you to get
harramula? — Whenever I saw him, he aaked
them from me.

Memion the parlicular lime when. — Whea-
ever people hare nny business with Bluhalta*

' Ihey first apply to Rada Churn ; Malii

' ' Ihe masler, Rada Churn tbe son.

Examiued by Air. Fanike.

Dill Gunga Govin SIqi;; know that you bad
put the arzees against hjra into mine or Rada
Churn's hands? — Gunga Govin will lell you (
how should 1 know f

Did any body else knawF-^Hoi* ahoold I

How could Gunga Govin ^ng be (Kghleneil,
if he did not know it? — There was a conver>
lalioQ upon it between Gunga Goviu Sing auit

Repeal that a
Govin Sing, Pa, n.- -^ . . . ,
nol, Mahn Rajah's doors are open for bamu
muts; 1 will go, and having nrilteu a great
deal, will present an arzee against you to iba
Maha Rnjdh. Gunga Govin ^ng said, What
will be tile elTect uf your giving an arsee ? at
tost you will he put on your oath on it in the
English Durbar. Do 1 forbid you pviug im
an arzee ? whatever tialance is due from you
on account of the revenues, I will imprison
you, and gel from yuu ; or else lei Moonahy
8udder O Deen come, we will settle it among
ourselves ; if not, and you wish to be a great
man, go and take a false oath before Maha Ra-
jah. I said. Give me my dismission, and f
will go to the Moonshy, and I and the Moon-
shy will come together. He said. You are at
liberty to go or stay ; why do you want dis<
mission from me r get dismission from Mr.
Coitrell. Tbe uext morning 1 cauaed the arzea
to be written.

Did you ever acquaint Gunga Govia 8\ag
that you had actually lodg«il It P — Gvw^ ife.-^

. — I said Id OungQ
rupees; if you da

1167]

IS GEORQE III.

hui>hpd, and t 1ai))t1inl. We itaid in upec-
Ulinn of the MfHinxh v'li cnminK'

Did you. rI any 'lime, acknowlpi!^ yonr
■enl la be pul in iiir gmt arm before mLi.
nemeN?— Friim thai lime I liife cuiniilainni,
(hal Mr. Fodki- vauaeil me to |>ut my ifal to
Uk ariee by force.

Hon oneii did ynaga to fiait Mr. Fowhi;
senior b«-^ire llie Umtc arzee was aeairrl ani!
wiine»-eil?— AtloKt^ilier I went almiil (Ijrte
time* to ti« hniite ; nheo I came frmu HougL-
ly, I liu mit ivinemhrr,

WItrn was the finl time? — Eirry tl)in^
WBt from (be eail of Cbyle Ui ilir 7ili of By-

KnoKin|{ Mr FoHke'ibnuMtobetculdier-

Bol* harminiil-, hon came ynu lo gn lo ji ? ~
jilia Kiijah loiJ me to yo, and be ncuuciled
tohiin

Did you ever tcti a
ffivei. tHr -u:ns ...en-i-m
hail t,'iT('it, I Kiiniild liai
had,il I liadimif

biidy that yna hai.1
in the r>iEil?— If I
ihould I My I

rtotJ

Eiciuiioed by the Court.

Was any ibm:,- iHiil almiil mrrying ihe arzee
to council F — Mr. Fniibe deiiired me lo go;
tiitu [I] aaiil lo Ruy Hada Clium and youn);
Ur. l-utike, Aa yau bare cauaeii me lo vriit
thia arxee by thriw, and you will (end it ta
council, bavini; my lurii jdiumab, I tviil go ta
Ihe council bernre it.

Did you e'er deiiire of Mr Fonke,
Rijah.'that the arxce aliaald
the council? — At the lime I

>r Mali^
riie<l Id
le out or 31r.
Fonke senior's ronm, I laiil lo Roy Ratln
Chnrn anil youn^ Hr. F'lU'ke, Gire me back
that arzee and I'util which Mr. Fowkt hai
cauaeii me lo liiro, or 1 will iraniediaiely go to
the council bud complain.

Did you ever a»k Mr Fowke to return the
•rzee? — I drm:inded il ol' liini I lie De\t ilay, iu
the roviD ; AInha Itajah «m ibcrc, Roy Itaila
"■ I, and Mr. Fo»ke.

Trial qfjotepk Faa^ taid othert, [ I IBS

with two Ensliah tranalaie* of tbeamwt. I
am aecTFtary lo ihe revenue conueil. It if eot.
tomary to remnre papen from one offiee w
aniithiT, when they are lent by miatake. h
ahould have been leat oritfinally to mv office
PmentioK an arzee it the rooile >if initilatinf
an enqiiirv. 1 haie known cetMiirei bihI pa.
niiihmFiiti inflicted by the board in cuii!H>f|anM*
nfarzeii. I bate known esaiiiiorl

both on oath and wiihitnt ; llie pnrlin aratnad
exmniiied : I believe, I hare known the pai^
accuaed emmined onuiib. Tbraubjeclof At
arzee was proper mailer lo be eii(|uiml jnM it
my deparlnieot : I aliude lo Ihe lai^e arzee.

Mr Aitriol. Vnung; BIr Fowke railed h
n* one m'Tniiig at brtaktiiat, and tfavc mr I
letter aildressvd lu the goiernor K>'<>eral hJ
council ; whiHi, as the* werr to cii that man-
PAired mii;hl be (lelivereil to lino.
Tii'at letter cunttiued these papers. I drlivrrel
lliem to the council ; the governor ^neral •■■
present. I received no iiriler mprdiae
them, till Mr. Pouke had aeol • Keconil Ittitr
to ibe hoard, applyinir for oriifinul papen ht
had before delivered in. ) waa then direclcl
lo send theae papera, exceplini; tlie I'ettii^
whicli wat ordered to be translateil, a* tbs wi-
Efinsl papers which Mr. Fowke appheil for Jul
Iwrn recordnl ia the revenue department; tti
to deoire Mr Sumner to alteni) the boanl wiik
aJI the paper* applied fur by Mr. Fom ke ; llr,
Sumner sccordinffly attended the board ; ul
received further intlractions lo rarry ibttB w
Hr. Fowke, at the chief jutlice'a Louse.

DiU y

Wu the pen En);li«h ii
■uHindoataniie
aicca dewat am

Halt yon an.^

It lo liave that arzte de-
-r did.

-I n

r Persian? — Il was
silver ink'Slaiidj the
in.1 wire both silver
toihinkihiil.MrKowke
IT ol ynur comini;? — The ni^ lit before the
draught of the iirzoe hail been wrote at Maha
Itaiah's, lie sent to call me.

fVhfu did he send locall ynu ?— In thfeven-
im;, when 1 was ^'""'4 to t[et my disinis>iiin,
Mi>b3 Rnjah said, Mrile an ^irzee. and carrv il
to Mr. Fouke ; Ruy R^di Churn will gu wiili
you ; an liircarrab of Rida rburu't ihe next
day calleiJ me to c« lo Mr. Fuwke's, when 1
was al Mr. Cuiirell's.

Were ihe sums in Hie furd in word* at
lennlh, or iu lii-urps 7— The

ords; Iheti

' in Rgi

IVhlt son of ligur
Is Penian.

Hr. 5amner. I receiveil two arzeti encloted
im Ibii letter, aigaed, Joaeph Fawhe ; togctbar

[Mr Auriol says, the lelter waa dated Ihi
I8ih; and he received il on the 3ath, lheil«t
ihe parlies were hefnre khe chief justice.]

Q. ta Mr. Sumner. Ho ynu know lliit
paper ?—A. I received thia paper the aJ J
June, of &ir John Doyly ; I received il at ic-
crelary to the revenue department.

Sir John lioyly. I believe thia lo be iht
paper I tent to .Mr. Sumner, by order of ibe
council. I received the paper from the a«-
vernor, or one of the secretaries, and delivenJ

Comaul O Drcn. Tiiia is the true arzee. 'I
it the arzee I delivereil to tbe governor, M if
liver 10 the council. Il wai not my cutlom It
affix my seal to arzeet : I did to tliose of Mr.
t'owke's and Maha Rajah Niindocomtr'*. U
"as nut mv custom lo write niv name I"
arzees : the Moonshy wrote it. | aealed ihi*
liecause the cenllemen deaired il. Mend Ut

oiber arzees I have ifiveo in to the cninmilKf.

and see how many nf them have my an!* ti

ttieni. Ask Mr Collrell for my arzeca, ta*

see how many of tliem have my aeals.
I>u ooi you teal all arz<«t ? — 1 never f*

il no C. arzees : but I do on daikhauslt ipi*-

]H>sals to frnverniDeDI.]

Why did Tou put TonrMsl to ymtvtlti

VII. thcHull we.'— If 1 b«l MM fu m/mI

1 109] Jar a Coiupiruy agaiiut Warrtn HaiHi^*, eiq. A. D. 177&

[1170

to it, Maha RaJAb would not bate (pven credit
to ic I ba? e put my seal oo the arzeea of
Maba Riyah and Mr. Fowke, and oo all tbe
arzees in their pocaeaeion.

Why did ^oa put your aeal to tbe arzees
■Kaiuat GovioSingf — To pre? ent their beiog
c^ahged, as a mark. It' tbe goferoor tells me
to put my aeal, I put it. 1 auould of my own
accord, to koow my ovrn paper, lloy Rada
Cburo would not have taken it if it was not
lealed. That I sent to Yar Mahomed was not
•ealed ; 1 did not intend that should be deli-
vered ; therefore I did not seal it ; (the large
•rzee) Mr. Fowke desired me to seal it.

Detendant's Couusel sliews him a paper.

Do you know this arzee? — 1 delivered two
or three arzees ; one from myself, the other
two from the zemindars. I will send for the
copy, and tell you whether I delivered it or

BOt.

Don't ^ou koow your Moonsby's hand-
writing ? — No.

Can't you write Persian ? — I can read, but
not writ** w«!l.

Did your Moonsby ever write in yonr pre-
tence ?-— Ye8, always.

Are tiie seals to the great and little arzee
yourt* ? — Yes, they are.

Mr. Fowke admits the Letter enclosing them
to be his

Mr. William Chalmers proves the translste
of the itrzees marked A. and B. also of that

irkeil D.

The Governor General ezamioed.

Are iiieite arzees uf course sent .upon the
conhulutiuu? — i cannot say of course; but
tbene are.

Are they sent.^ — Not yet; but they are to
be sent.

Q, to Mr. Sumner. Are these srzees trans-
■ttted to Eiii^lsud ? — ^They are upon record,
and will be sent.

Mr. Fowke's Letter read. — Arzees read.

Mr. E/liot ex|)lains his sense of the word
* barraniut:' *' An account of the receipts of
money improperly received, which may be
cither true or false, fttrming an accusation, or
reflecting a di*<t(race, on such person by whom
tbe money is said to lie received.*'

Captain Camac. A harramut is a paper de-
livered in, either before or after an auroeen is
displaced ; when it is delivered before, it is
meant to get him displaced ; if after, to accuse
bim of money received in his office ; is often
«za«erated ; it may be either true or falt»e.

Mr. Htdjcarn. An accusation that may be
either true or false.

Mr. DucareL The same.

Kewdemawaz sworn.

Whose servant are you P — I am ComanI O
Deeri's Moonshy.

Do you know Maha Rajah Nondocomarf —
Yea.

VOL. XX.

Were you ever at bis bouse ?— Yet. I was
never but once, which was upon the occasioi&
of this arzee; I went with Comaul O Deen.
He went into tbe Dewan Connah : I staid
without. He sent for me; 1 went and paid
aaladn to Maha Rajah ; who said to me.
Come, and sit near me. When I had aat
down, be gave me pen, ink, and paper ; and
bid me write out the foul draugrht of an arzee.
I wrote out a foul draught according to what
he told me. When I had wrote out the foul
draught, be took it into bia hands, and theft
looked at it, and gave it to Doman Sing;
whoae name I waa not then acquainted with,
but have since learnt it, and told him to copy
it over on another paper. When Doman Sing
had wrote it over, Maha Rajah, having altered
it wherever he aaw a amall difference, told me
to write it out fair. Then Comaul O Deen
said, I have the disorder of the piles, and a
pain in my belly, let me go away ; my Moon*
shy will stay, and write out the arzee accord-
ing to your instructions. C. O Deen thea
said to me, I am going tmroe, do you atay and
write out the arzee according to Maha Rajah's
ioatructions. He went away ; I ataid till about
a par and a half of the night ; Maha Rajah
was sitting, and I was sitting writing tbe arzee.
When I had wrote it fair, I gave it into Maha
Rajah's hands. Maha Rajah, having read tea
or twelve lines of it, said. This is the fair copy
of the arzee I bid vou write ; it is wwy well.
He said to Yar Mahomed, Go with the Moon-
shy, and get Comaul O Deen to aeal the arzee.
We then went both together to Comaul O
Deen*s house. He was silting smoking hie
hooka. Yar Mahomed salamdl: 1 likewise
went and sat down. Yar Mahomed sat near
C. O Deen ; I at a diatance. Yar Mahomed
said, Maha Rajah has sent this arzee to you ;
having coosidervd of it, put your seal to it.
Comaul O Deen, having read it, said. There is
00 agreement between Maha Rajah and me
for putting my seal to it. If I should put my
seal to the arzee now, and aboold be called oa
to prove the circumstances in it, I shall not be
able to prove it. 1 will by no means put my
seal to it : whatever I have wrote, I wrote to
please Maha Rajah. Yar Mabonied then an-
swered, Maha Rajah is the noiaalar, he baa
sent to you ; you may either put your seal on
it or not, aa you please. During the converse*
tion, Comaul O Deen gave him bia hooka to
amoke, and he soon went away.

How long have you known Mr. Fowke ? — I
have known him only since the disputes. 1
never went to Mr. Fowke's except the day of
the dispute, when I weiit with Comaul O
Deen.

Relate what passed.— Comaul O Deen went
up stairs. I staid below. In about three or
four gurries Mr. Fowke came down, and be-
hind him Maha Rajah, and then Comaul O
Deen. 1 donU exactly Ax the uumber of gur-
ries.

When did this happen P— It waa next day
after the arzee ivai brought lo Comaul O Dean.

4F

1171] 15 GEORGE in. Trial of Joseph Fawke and oiherf^ [llTl

Mr. Fowke and Maha Rajah got into their pa- | When yoo were before the jiNtieei, wcreywi

lanqiiinfl. Cnmanl O Deen stood opposite j asked, whether j^ou had been Bt Mr. Fowlw^Br

Muba Riijah, and said to him, For God's sake, ' .... * . m.

give me back that false paper of barramuts,

ifvhich you hare forcibly caused me to write.

I cannot prove what is wrote in thdse papers

•gainst the gentlemen. He then called out

Dnoy on the gentlemen of the Andaulet. He

eaid,' his life and honour will be affected by

this. Maha Rajah gave no answer. Comaiil

O Deen then tuok the collar of hisjammah,

and went to go into his palanquin. Then Yar

Mahomed, Nettoo Sing, and others, took hold

ofComaul's hands, and said. Where are you

going? He then got his hand away from

theirs, and got into bis palanquin. When he

got out of the lane which leaiis to Mr. Fowke's,

a hircarrah went and stopt his sawarry, and

•aid, Where are you going ? come back. And

they kept disputmg in this manner, till they

got to the Bitah Connah of Rajah Rajebullnb.

He then got rid of them, and went along the

high road.

Were you ever examined concerning this be-
fore?— 1 was; at the Chief Justice's, and
once before the Audaulet

Do you know Ooolaum Hussin ? — Yes.

Do you know whose servants they were that
•topt Coniaul O Deen ? — They belonged either
to Muba Rajah or Mr. Fowke.

Do you know whose servants Yar Mahomed
and Nettoo Sing are ? — ^They are servants to
Blaha Rajah.

Did Comaul O Deen make any objectiona to
the alterations in the arzee made by Maha Ra-
jah ?•— No, he said nothing. He went away
while the fair copy was writing.

Did Comaul undersUnd the contents of it,
after the alteration ? — I do not know whether
he did or not.

What time of the day was it, when yon
went with Comaul O Deen to Mr. Fowke's? —
It was about a par and a half of the day.

How long did you slay there ? — I cannot
exactly tell ; it might be about three or four
gurries.

Did you hear any noise up stairs, at Mr.
Fowke's? — How should 1 hear any noise in
the upper apartments? J was down below.

[Mr. Farrer produces a paper, and asks whose

— I WHS not asked as to mj beiog at Mr.
Fowke's, before the chief justice.

Where did you ||^o atler yea left Mr.
Fowke's?— I went with CouAura palan^aii
on foot, to Rajah Rajebullub.

Hussein Alii exmmioed.

Whose servant are you P — I •m CoDiamals
Comaul O Deen.

Do VQU know Yar Mahomed •nd Kewdo^
nawazr— Yes.

Did you ever see tbem at Comaul O Deoi^
house P— Yes,

Relate what passed. — It waa about oae fir
of the night when Yar Mahomed and Kev^
demawas came to Comaal O Deen'abaoflii
1 don't remember the da^ ; it mav be a iMBdi
or a month and a halt ago. iVo or thne
days before the disputes, I met Kewdereavn
on the stair-case. He said, Comaal O Deaii
going to seal a paper ; do yoa briog the mss
dewat, and the box where the oeal ii. I
brought ihem. I did not carry them into thi
room where they were : I ga^e them both ts
Hutto«>. He took them, aad atood with tkca
on the stair-case. I told him, Wbeo they ol
for them, do you give tbem. I went in whm
Comaul was aitting, and saw Yar MaboflMi
sitting near him, and Kewderuawaz at a db-
tance. About a quarter of a gurry, or net is
much, Yar Mahomed went awajr. Tbm I
went out, and said to Huttoo, Perbapa tbel^
siness for which these tbinge were wanted vi
not be done; let us take them away at^ais.
I took them; and put them Id the Toiia
Konn«h.

Did Comaul O Deen call for the seal whils
Yar Mahomed staid ? — No.

Dill he seal the arzee 1* — No.

if he had done it, should you hare seeokf
— 1 must have seeu it; the seal was io ay
possession.

Were you ever at Mr. Fowke's with Comasi
O Deen ? — Yes, 1 was there the day of thedii-
putcx ; it was three or four days, 1 caaiMt
exactly tell which, after that 1 was at Hr.
Fowke's.

Relate what passed. — I do not know wbit

writing it is .^]— Mine. 1 wrote it in Comaul's > passed above stairs. At the door way, first Mr.

presence. It is a paper about the Andaulet.

Who difl you give it to ? — I gave it to Co-
inaul O Deen ; he is my master. I gave it
into bis hands.

Q. to Comaul O Deen, Do you know this
paper?— /I. Yes. I gave it to Roy Rada
Churn ; it is a durk. Rada Churn said, it
would have no effect ; and therefore it was not
•eale«l.

Kewdcrnaaaz^s examination continued.

Is that Comaul O Deen's seal on the arzee ?
*i-It is.

Did you see Comaul O Deen afterwards P— •
When he had gone from the cutcherry to his
awn houae, I (ud not see him.

Fowke came out, and got into his palanqoii ;
then Maha Rajah came out, and got into bif
palanouin. Then Comaul O Deen, addresao^
himself to Maha Rajah, said, I cannot prorc
the false Barramuts you have made me mrtt
out : this is very bad business, and I shall bt
ruined ; get me the papers back from Ifr-
Fowke. Maha Rajah gave him oo answer.
Then be began to tear his jamma, and call od
Duoy 00 the king, the company, and aodM-
let ; and said, See, they have caused me 10
write this paj^er forcibly. W'hen he attempt''
to get into his palanquin, Yar Mahomed sarf
Nettoo Singr held his hands. They are servasH
to Maha Itajah N undocomar. Comaul O Dcea
himself from them, and got idIo kit

1 17S] for a Compiracy against Warren Hasiingiy tiq. A. D. 1775. - [1 174

palaoquio. At he went oat tif the bme to come
<m the great road, two hiroarraha atopt the
Dalaoquin, ami aaid. You muat oome back.
He went on in hia palanquin. I l«fl htm : I
had busineaa in the Bazar. 1 could not (fo so
last. 1 saw as far as Rajah Rajebullnb's Hiah
Connah.

Do you know whose hircarrahs they were ?
— ^They came out of M r. Fowke's house. I do
not know who they belonged to.

CroiS'ExamifUitian.

Hare you charge of Comaul O Deen^s seal.'
«-The seal is always in my possession. When
Comaul goes out, or to the Durbar, he puts his
small seal upon his finger, and a bundle of

Japers into his cummerband. When he comes
ome, he pulls off his cloaths, and puts the
ring into the small box again ; and that box is
■nder my care. Whatever he has is under my
care.

In wliLt language did Corocul O Deen ad-
dress Maha Uajah, when getting into his pa-
lanquin at Mr. Powke's ?— In Moom. What I
beard, I remember. 1 was about two yards
distant when bespoke lo Maha Rajah.

Did you tell any bnily what passed ? — I told
it to the grand jury ; to no one else.

Did you not mention it to Mr. Durham ?—!
don't remember that I did. Comaul <> Deen
asked me, You was there, did you bear what

Est P I suid, Yes, 1 was there, and beard it.
e wrote out a paper of wbat past, and 1 wit-
nessed it. Comaul said, I have wrote down
what passed ; do you wiuiesK it. I witnessed it.

Did you read it bef'oie you witnessed it P—
1 did.

Jn what language was it wrote ? — In Persian.

Do you understand Persian ? — Yes.

What were the contents of this paper ?— He
first wrote and prepared the paper, in which
was written, ** Let those who are Mussulmen
Qpon their oath of God and PropheU, and those
that are Gentoos on their oath and Water of
the Ganges, and their conscience, if they know
any thing of this paper, let them witness it.*'
He first wrote it, and then shewed it to me and
others.

Q. to Mr, Elliot, Is it customary to draw
oot such impersl* — A. It is. I scarce ever
knew a cause in a country court, in which a
nuruthal* was not produced on one side or the
other.

Keemageet examined.

Do you know C. O Deen ? — Yes.

I>o you know Mr. Fowke?^Yes.

Were you e?er at Mr. Powke's house with
C. O Deen P — No, never. I never saw C. O
Deen near Mr. Puwke's.

Relate what you know respecting a fray
which you saw, between Comaul O Deeu and
others, in the street. — I was going on the roail
near the Hish Connah of Rajsh iCijebullub ; I
naw Comaul O Deen in his palanquin, with his

* Frovnsirat'i-hdlf Pert, the statement of
in writing.

I collar torn. There was one hircarrah running
by C. O Deen, and cryinir, C. O Deen, su>p
your palanquin. C. O Deen did not atop bis
palanquin. The hircarrah ran up, and took
hold of it; and having taken hold of it, said.
Where are you going P Maha Rajah calls, aud
the gentlemen call you. Comaul O Deen
called out Duoy on the king, council, audau-
let, and governor ; they have taken a writing
from me by force, and now they send a hir-
carrah to make a disturbance. Having said
this, and disengaged himself from the hircar-
rah, he went on.

Do you know whose hircarrah he was P— >
What do I know of the hircarrah P

Mahomed Ghote Newag examined.
Whose servant are you P^N(>l>ody'B,
Do you know Comaul O Deen ? — Yes.
Do you know Mr. Powke?— Yes.
Did you ever see C. O Deen at Mr. Fowke'b;
house P — Yes, 1 saw him there the day of the
quarrel ; it is about three months ago.

What past there P — First Mr. Fnwke came
out, after him Maha Rajah. I was standing
below. Behind Maha Rajah was C. O Deen.
■When C. O Deen came out, he addressed him-
self to Maha Rajah, and said. Those falfie papers
of barramnts yon have canseil me to write give
i me back again ; I am a poor man, I cannot do
j this business, it will niin me. Maha Rajah
I gave no answer. C. O Deen got in to his pa-
lanquin, and tore the collar of his jammah, and
crie^ out Duoy of the Audaulet : when two
men laid hold of his hands, and stopt him. He
did not mind them. They went on disputing
as far as Rajah' Rajebiillub's Hish Connah.
As they were going there, a hircarrah from
some distance behind, cryed out. Bring back the
palanquin. He came up, and seized the
bearers, and stopt the palanquin ; and said^
Come back. Comaul O Deen then calleil out
Duoy of the Council and Au<laulet, and got
away. Where he went, I do not know.

CroU' Examination.

Whose servant did you say you wercP — 1 am
a atudent ; employ my time m reading ; am
nobody's servant. 1 never was a servant.

How long have you lived in Calcutta?^ It
f* about eight or nine months smce I came to
Calcutta.

Where do you live P — I live in the Mutchee
Bazar, in a place I have hired of my own. I
give rupees, six annas, per muuih for it.

Do you know Moonshy 8udfler O Deen ? — I
have liVAfd of his name. I do not go back-
wards and forwards t(t him. He somelimes
tiroes to the Durbar; I goto the Durbar: I
have seen himgoiug there in his palanquin. I
never s|K>ke to him. He never sent any of
his people to me. As 1 know the name of
M(»onshy Hndder O Deen, 1 do that of Comaul
ODeen.

Did you atop when you heard Comaul O
Deen cry out Duoy i — Yes. lie called to the
peoplf lo l>e witness.

Did any conversation pass l>etwcen you and

I lib] 15 GEORGE III. Trial qfJoiepk Fimie and oihertf [UT6

Commal O Deen P — I did oot tpeak to him on
the day of the dispate, or since.

Ha? e not you ntcntA a paper P — ^No.

Have yoti not si^fned a surutbal ? — No.
C. O Deen, when he called out Dnoy, said,
Ya« will all be called on at the Audaulet. 1
TCceited a aummooa to appear here ; a peon
^?e it me, and to five othera. I never told
any body my name, or where I lived.

Where were you, when the summons was
Ipren you ? — At my own house.

When did you fint see Comaul O Deen P —
When be began to cry out Duoy.

Beinf( shewn the paper called the surutbal,
mnd asked. If his nsme is to it in bis own hand,
he says. Yes, and calls it a Dewan Potny. At
last he said it was a surutbal. Then he
called it a Recidaad, and said. If yon had asked
me if I had signed a Recidaad, or any paper
concerning this business, 1 should have an-
swered I had. Being asked, If the pa|»er
which be calls a Recidaad is not a paper, he
•ays it is.

Kewder Naraz re-examined.

Do you know the last witness?---! certainly
do. lie is my own brother. He is a witness
to what passe«f in the dispute with Comaul O
Deen at Mr. Fowke's bouse.

Are you own brothers? — We had the same
father and mother ; look at his face and mine,
we are like ; but he is a fool, and has denied
it tbrunifb fear. He knoiis nctbing of business,
and never did sny in his life. I am tbrced to
^ve him victuals and clothes. 1 was a servant
of Comaul O Deen's at Calcutta ; he came to
me ; be was present with me when the dispute
happened; Shake Mahomed, Hussein Ally,
Msbomed Gose Nenaz, Mushurer Rabroaun,
and Keemageet were there likewise. At the
time of my father and mother I maintained
him ; and if out of six brothers one happens to
be 9enMble, would he not maintain the otbeis?
BIy brother knows Comsol O Deen throu$*h
my means. He lives with me in mv apart-
ments at Comaul O Deen's house. iFle is a
nan : if he has made himsrif witness upon any
business, he understamls it ; why should he not
know truth from falsehood ?

Q from Mr. Fatrer. 1\ hether you bid your
brottier go to Mr. Fuwke's house that day? or
whether any body else tn ^our koonledtre bid
bim go? — A. Nobody biifhim go. l\v went
of his own accord. Hussein Alii and 1 are
Comaul O Deen^s servants. We neiit by his
dirvctinns.

Is it cnstomary for you to go with C. O

l^*n.'^-W'her«*er he carries me wiih hiai,
Igo.

Huiuin Aiu re-examined.

l>o you know Mahomed Co<e Newaz? — Yt^.
His brother and he liw with lue m Comaul C>
Dccn*s bouse. He was with us at the time of
the dispute at Mr. Fowkt*s bouse.

Is be a sensible man. or a fool ? — He is not
a sensible iiim« wmI j ol nol ^uite aa idcoi.

I

li be meh an idcot, u not t» luitw hmh^
ther P— No, I think not. If he was, he woaU
run about naked.

Does be smoke bang ?— Not that 1 Icmw.

Is he more sensible at one time than la*
other? — Yes. But I never sawr bim in audi i
state as not to know bis own brother : or est is
know who is his brother, if the quiHiaa ii
asked him.

Jiluthurcr Rhamaun examined.

Do you know Comaul O Deea and Mr.
Fowke? — I know them both.

Were you ever at Air. Fowke*a when C. 0
Deen was there ?^I was. It may be absot
two months w two months and a half ago.

Relate what you saw. — 1 waa Mandinf M
the door, and aaw Mr. Fowke, Maha Vbj/ik
Nuodocomar, and Comaul O Deeo ooine oaL
Comaul O Deen said to Miha imah, Givevt
back that paper which you have forcibly caowl
me to write. 1 have never ^neo money,*
caused any to be lo^^n to any body. I kaav
nothings uf the contents ol the paper; (itt
it me back aj^ain. Tlien Comaul O Dtsi
called Duoy upon the (▼uvermir and {renikMra
of the conncii, and suid. Give iDe hark tW
pa|»€r. When they did not ^ive him back ibt
pitper, he tore his clothes, the r«»llar of his js»
niah, and made a threat piece of wuik: asJ
caileil out I'l Gentnob and MiisMilmrn inkrsr
witi.ess. He cot ioto his* ow n paUiM}i;m tind «fsl
an ay. .A hircsrraii ran aftt-r tlie palan^ais,
took hold rf It, and sHid. Maha iCajsh ao't Vr.
Fowke Cdll vou ; vou must ctMUt* Uick. C 0
Deen. C. O D^en went lu\«ard» the flfotcraw^
bouse, and I weut b\ the court- houbc to vj
owu house.

CroU' Kxaminat ion .

Who bill you ;r«i to Mr. Kuwki's ihat ir.nni»
ini; ? — Siimeho.!\*s vakeel. 1 am tjktr! «f
F\znllah Issalhin rif H^iiirh.! Ii i<i ii>\ l-ihi-
nes« to i;o tn evt ry b':d\ 's iluriiar. J i:i • (•••l^>
particularly to Iiin.

DitI vou s::rn the siiruihal : — | i«it:i€M«4
the suru'h;il. an'l s-ijriei it lu iite atie oiM
ot thati^.iv. 1 i!i>l nut >ei tlu ^uruixal la OJ
hanil At the time lit- iTifil \^^ nv.

What time ot ilie lUv was it .' — I cannot n-
actly tejliihst ho^jr of the day it mjs; but
kiclieve thf-re wa^ three or t<»iir*i;urrii» «>i i^
day reuuiniiij. W hen :t>e disptitt hj^ipeac^
tlu re Here.ab'>nt >ix i^urries t»f liit* da\ ailfaac-
•"il. I ^i&roetl the suruihai at mv own bnuff-
('«i:raui t) Deen broutrhi it to me'hiiiitelt. ctf-
neil me to rvsd and si^n it, and went away.

"*t/A.'i>'jL >-i./ir O Dcci «*xanniotd.

O-* \i-!i know t oiinul O Oeen ? — Yes. I
hx^s K::iinr. iiiiii nir^re or ii^s ttian '20 \rsfi;
Wvcr IS f. \i\eniWu.\i betwir'n u<.

Di j iie cvcftc'!! youan_\ thini^ about arzKf'

' — Oae ciny in lue U)onih ul Rysaak. CiHnauld

Hc'^n t<^id mo »o much ou the bu$ioes*iil i^

T^cka Collir.PS. that the dispute which vi>

j Uj'orc : Mahi Kajaii wants me to wriieaa v*

P*":

] for a Con.^piracy ogainit Warren Hailhgs, esq. A, D. 1775.

wxf, an J thai ibere may be luch a mcaDln^r put
■u Ihsl arzee by wbicb the GoTernor and Wr.
Jobo Graham mangels bad name: hebasde-
aired tne to write it ; but 1 will not da it ; and
1 (fill not bring so bad n name iinnn myself'r
you are myfrirnd, and tbcrefure 1 havecom-
■ouuicsted it to you. Thia was In Ihe nighl,
upon the busiuess of arzees, he told me to

that in Byaoak?— It wu
' I'ourtb, 1 do not reraem-
all that passed upon Ihe
rritod goes lo viail another,
— ihjects ; if yon mention
' ■" all. Again, ibere
eighth By Baa k ;

diey talk of

»ay particular subject, 1

was B GOoiersaiion

Comaul O Deen cnme to me, anif eaid, I bave
been at Ur. Povrke'ahonse, to get back Ihear-
Kecswhieh I gaie against Gung« Gorin Sing.
U« baa uol given me back Ibe anee:!. He baa
cauced me to pnl my senl by force lo an arzee
on tlie huhiueM of tbe tecka collariea, and he
baa made me algn a furd ; but aflertvards I told
bitn, Do noi du so, When I became my own
maaier, I said, Sir, do not ilo so. Then Mr.
Fooke said, Do not be in s hurry, Maha Ra-
jah will be here lo-morrow, and tbeii we will
•etile il, don't niiike a diiiurbaNce. (Comaul)
] am now ^nine In Msba Rajah's, if he will
procoie me back my arzeea and papers very
well; and If not, to-morrow I will make ■ dia-
turbance; ur, 1 will destroy myself. You are
■B]r friend, a cquainl Mr. Bsrwell and Mr.Van-
siitartwilh it. Having said tbi*, be said, lam
immediately going to Maha Rajah. I will
come Imck again at night, and tell you all the
patticutars. Hewenlaway. Hecamebackst
nighl. I »peab from KUecs, it roighi be aboiil
five or six gurries alter Ibe night. There wan
tbis canversaliun between us; seeming pleased,
be said, " Maha Rnjab will give me back Ibe
«r«ei* and all Ibe pajiers ; he has lold me lo come
lo-tnorrow. Do you now bear all ibe particu-
lars : the arzees which I gave against Gunga
Covin Sing, and deposited iiilb Roy Rada
Cburn. with the knowledge of Maha Rajah,
vpoa this ciindiiinn Moonsby Suddar O Deen
is Eone ; if my dispute with him can be aellled,
i will lake back, and I am lo give him 6,000
rupee*: 4,00u rupees lo Maha Rajah, and
S,000 rupees lo Rada Churn. Tn o days ago
I desired Maha Rujab to give them back again,
but Mr. Ponke sujs, Write out an arzee on
the business of llie lecba cflllariea, and Uien
TOa'U get back yoar arzees against Gunga
bovin Slog. I (C. O De^n) said, Maha RsjaJi,
how can I write this ? Maha Rajah said. It
does not signifjf ; do you uue tiling ; do you
wileon one subject; having shewn it to Mr.
Fowke, that siury of yours shall be lorn ; and
you will receive back the arsees against Gunj^a
Gavin tNDg ihat are with Mr. Puwke. I said,
I have the disorder of tbe piles, and a pain in
Iny lielly i I will go ; my moanshy will re~

Maid. JUalia Hajah caused ibe moonshy lo

wrile the dictates of his own heart ; and in Ibe
night Alaha Rajah sent it by Yar Mahomed
for the purpose of getting my seal upnn it. I
lold bim. There was no agreement between
Maha Rajah and me Ibal 1 isbiiuld put a seal
lo it. I did not (lut ■ seal to it. Yar Halionied
went back again upon that business. Mr.
Fowke baa to-day forced me lo put my *eaj,
and lishcd up a book lo strike me, ai.d woa
very angry with me ; for which reason 1 seal-
ed II, and gave it lo him. He took out a ford,
In which wa« wrote llie names of Mr. Harwell,
the Governor, Mr. Vantittart, Cantoo Bahno,
Rajah Rajebultub ; iIkeg tiames, and cerlaiu
sums, were wrote in the furd, and desired roe
to put my diiskut lo it." 1 asked him what
duakut keir he had put upon it : Comaul O
Deen said. In some places I wrote Rusaan ne-
dum, and others Uailum. And be lold me a
great deal about his being in a great roeaiuce

Gunniisan Doss, beiog asked as la Ihe dif-
ference belweeu Duskut and Diiskut Kier ;
says, " Dusknl generally among great men lo
ioftriors means a mark of sulheuticalion, wiih-

Moonthy Sudder O Deen. It may be either
a signing i.r a single leller ; or anj^ mark they
chuse lo make; Ihe same fmin an inferior to a
anperior, as from a guperior to an inferior.

Are llie two Persian words menlioned br
Comaul O Deen a.diiskul?— Yei. For which
reason 1 asked him what duskut he bad put lo
il; and undoubtedly I ihought when he lold
roe what it was be had put, 1 LiMughl il a du»-
kut. *> After haiingnroie ihem, I (C. O Deen)
made a disturbance. All this I tnhl lo Nuodo-
cooaar ; who said, To-moirow you shall gel
back again all your papers and aizees,"
Sudder O Deen cross, ex ami oed.

what passes in the court ; saime are good men,
some Lad ; and bave told me, at diffrreut timet,
Cninaul O Deen gave such and such an evi-
dence. Nobody came to my huuse to inforro
me nf bis evidence.

When did Comaul O Deen Brsl inform you
of any disputes between bim and Uunca Covin
Sing r — He lold me of it when I came from my

Did Comaul O Deen desire yon lo olitain
from Gunga Govin Sing any sum of monej
which he had upon him? — C. O Deen aaid lo
me, I have on your accounl deposited arieet
against Gunga Guvio Sing ; do you get tbe
business settled forme.

Did you settle it? — I did.

On whatiermsF What sura of money waa
paid lo ComaiilP — When I came home, Co-
maul complained much against G. G. Sing;
and he afterwards lold me, He ia now in my
bis IVieod and mide-, il'^<itt;».

power ; you at

1 179] 15 GEORGE III. Trial qfJateph F&uke and others^

[1180

settle it, wety well ; ifoot, there will be a dis-
pute ; 1 will injure him ? ery much. He be^^n
to talk angrily ; and 1 said, Disputes are Dot
IJTood: why should there be disputes between
friends? Such con?ersatioD passed etery day.
They were both my friends; for which reason
I told them it was better to settle it ; and about
the 6th day I settled it, for 10,000 rupees.

Was 10,000 rupees the whole paid to Co-
maut O Deeo, either io money, or any other
consideration ?- — Coma ol O Deen claimed
526 000 rupees ; G. G. Sini; said, 1 hafe writ-
ten off this to your rereuue account : you hare
no claim upon me. I told this to Comaul O
Deen ; who then said, I am much in arrears,
on account of the tecka collarips ; and my
character will go ; if I can get 10,000 rupees,
I shall escape. I then told Guuga G. Sing,
You are my friend, and he too ; it is not well
to quarrel among ourselfes; and now the times
are such, that it behoves every ^ood man lo
avoid having any complaint against him ; it
is necessary f«ir you to give C. O Deen 10,000
rupfH^. Then Gunga G. 8ing said, You say
this to prevent quarrels ; it does not siirnirv ;
what you say is very well : you tell me to give
10,000 rupees ; the remaiinog 1G,000 rupees
shall be written off on his land revenues.

Did ComanI O Deen mention any other
arzees than those against G. G. Sing?--- He
said somfthine almnt having given a duskut fur
the Audaulet of Hidgelee to Maha Rajah.

When C. O Deen spoke to )ou about the
book being held up to him, was it abont G. G.
Sing?— It was to seal the arzee about the
tecka collaries. He told me nothing of the
contents of the arzee, that was wrote at Nun-
docfimar's when he went away and said he
was ill, which was carried to his house to he
sealed, and about which Sir. Fowke held up
the book.

Was it that arzee, or any other, that Mr.
Fowke made him heal ? — From his telling nie,
J know it VI as that arzre.

Which Mr. Fowko was it, that bid him not
luake a disturbance ?---I did not ask which ;
be said Fowke Sauh.

Did you ever advise Comaul how to act,
when he went to Mr. Fowkf'»?- — No, never.

Did you, in your own name, or io an^ other,
ever pioniise Comaul O Dei>n anything, for
giving the evidence he has given ? or told jiiui,
that advantage would result to him from it?---
No, never.

Did \ou ever desire him to write an arzee
against Mr. Fowke i*"-No, never.

Air. Ilmthigs examine*!.

mutsuddies, for the grant of the lecka collir-
ries, or the adjustment ofaoonants relative Is
them; I am not certain which. These wrre
salt works, not originally included in the lease
of the farm of Hidgdee, but worked by other
fanners, by people brought from other parti,
and afterwards given to the farmer of Hidge-
lee, to prevent competition. I toM him, I
would not receive a verbal complaint ; if bede-
sired me Io take cognizance of it, he anil
commit his complaint to writing, and deliver it
in M riting. He did so ; bnt in terms so brief
and general, tiiat I returned it to bim, teHis^
him, that, as he had stated it, it did notamonst
to a complaint ; that I would have noUiing li
say to it ; but if he wished I really would tike
notice of it, he must mention the facts by vbick
he thought himself injured, in writinff, and le-
late their circumstances. I think, while I wsi
talking to him, Mr. Vansitlart arrived is tbe
apartment where we were conversing. 1 nU
him what had passed, ami what I h^d ben
Haying to Comaul O Deen ; be repeateilthe
same injunction to him. Comaul O Dees
said. He would write down tbe complaial, tsi
make it fuller and more circumstantia) ; tel
that he had no Mooufthy with him. 1 told bin,
Mine should write it, if he would dictate iL
He agreed to it, and wrote the first ar»i^
Hhicli has been read ; it was then brought it
me, I believe by Comaul O Deen, and I Uirf il
before the council. In conversation bHiws
Ci»maul O Deen and me, other pariicutars nnj
have hap|»ened, which, if there were, I camil
recollect, and have totally forgot.

Did ComanI O Deen ever tell yoo tbatthoe
were falsities in the arzee, to which he esoU
not swear?--- No, uever. 1 andertiood «bit
was written ; and believed it to be true, as 6r
as I could believe a single witness ; I put seve-
ral que^tions lo establish my belief, so far as it
lay it before the ouncil.

What directions did you uive, as to the dnw-
ing up of the arzee? or what did \ou sty os
the occ:ision ? — I only said. All cirruiiistanoei
must he related. I believe I ini<>|it sav, If it
is true, as you have said, that Mr. Fotil^e \(Ai
you it would be l>etter for you to make decU-
ration ; and, if not, you \tou!d be. piiDr»lMtl:
this is material to the complaint, and should be
miutioned. 1 1/elicve 1 ini;rhi huve said ^,1k-
cause I think, in like circumstances, 1 sbaitf
do so now.

Did the arzee contain nothing more thauikt
accosation, as related by Comaul O Dftu:—
The circumstances put in I he arzee did out is
the least, 1 believe, varv from the accusauoi

I in essential {mints ; only iu a dilFerent maaiMr
Do you know Comaul O Deen Cawu.'— . of Vf laling the same lacU: they appeared*
Yes, I do. me the same.

Did be make a complaint to you, in the
month of December last? — Yes ; i will endea-
vour to relate it hat passed : Comaul O Deen,
in the month of December, complained that
Mr. Fowke bad altempteil, by promise and
threats, to extort from him a declaration, that
he had giren bribti to English gentlemen, aad

Had you not connections w ith Maha Rfjak
Nuuilocuiiiar ?— I certainly had ; thai u I*
say, I euiployed him on niany occasioBS; I
patron izcf I and countenanced him, it is «tl
known. I never had an Ojunion of his rinst
or integrity. I believe he knew J had sol. I
beg leave to add, that when i employed bittii

* .

1181] for a Conspiracy against Warren Hastings, esq. A. D. 1775.

[1 189

an iDstrumpiit of ^nfernment, I mififlit bare
other motivvs than u\y reliance on the raaa'i
integrity ; inotivea whicli did aot depend upon
me. I nii}r|it have other inotifea-^I had — 1
eonsidered it as a point of duty, which I could
not dispense with ; 1 have, till lately, concealed
the motives, because 1 thought it my duty ;
but I think it nece$sary, for my own character,
to declare, that 1 had the orders of my supe-
riors to employ this man. He never was, in
any period of my life, in my friendship or con-
fidence ; never.

Did not you say, that you would be revenged
on him, and would ruin him P — I never men-
tioned revenfife, or that I would ruin him. I
am clear I did not mention these words, be-
cause it is not in luy disposition.

Did you never teU Rajah Nundocomar, that
you would withdraw your countenance and
protection, and would not be his friend P — My
firieodsliip he never bad. 1 certainly did use
expressions which im^died, that he was neither
to expect my protection or, countenance ; and
dismissed him my house.

Did you ever say, that you would conduct
yourseif to him as he deserved ? — 1 never made
ape of the expression.

Did you, directly or indirectly, cnnntenance
or forward the prosecution against Malia Rajah
Nundocomar P — I never did ; I have been on
ny guard ; I have carefully avoided every
circumstance which might appear to be an in-
terference in that prosecution.

When did you first bear of Comaul O Deen*s
complaining against Mr. Fowke P *— That
morning 1 examined into it. He came with
hia complaint, and broke in upon me very al»-
niptljT. He told me his story, and I put many
ouestiona durinff the relation ; and afterwards
I doubted it. \Vhen he first related it, I asked
him questions, to clear up those doubts. 1 bid
bim be cautious in what he related. I observ-
ed, be seemtrd much agitated with passion, or
bad much the appearance of it. And I advised
bim seriously and repeatedly to weigh what he
was about, before be persisted in an accusa-
tion, which might lie dictated by prejudice, in-
terest, or present passion. He persisted in his
atory, affirmed the same facts, with much ve-
lienicnce, in such manner as to induce me to
give a degree of credit to it ; but, as I was a
perty, I told him, I could not retlress it : that
was the reason I assigned, and directed him to
Bake his application either to the chief justice
or to one of the judges of the supreme court
He aaid he would go to the chief justice, and
deiiied I would procure him an introdnction.
1 sent a chubilar with him, to prevent any de-
tention or prerention he might have met with
froflB the chief justice's servants. I also wrote
a note to him, which I sent by one of my own
afeivuitf.

Wheo waa it that you interroQfated C. O
Dceo reepecting his complaint P— Between the
enmination at the cliief justice's house and the
Holiday, when we determined to prosecute. I
** ^ him two daya aaoccMivelyi and

urcfed him, by the arguments which I thought
most likely to have weight with him, to declare
the truth that paased between him and Mr.
Fowke. He wasstrictly consistent when he told
the story, repeated always the same facts,
varied only in the mannei^ of telling them, and
introducing immaterial circumstances ; he did
not vary in the sense : he did not repeat the
same words, or make the same arrangementa ;
the material facts were tlie same.

In what Isnguage did you examine him P-~
In the Hindostanny.

Did you ever examine any other of the wit-
nesses?—-No, never.

Did you ever see Comaul O Deen's moon^
shy P — I never aaw him but at the chief jus-
tice's. Comaul O Deen always persisted in
the sam^ story of the furd ; it was on that
point chiefly that I examined him, because it
was less capable of evidence, and 1 wished to
be convinced, as far as 1 could be, from the
man 's manner of relating it. 1 was thoroughly
satisfied in ray own mind, when I commenced
the prosecution, that the story waa true: and
I have bad no reason since to alter my opinion.

Was Nundocomar neter in your private
friendship or confidence P — There was never a
perio<l in which he was in my private friendship
or confidence : I may except the small time,
till I had acquired an opinion of bis conduct.
There are some in this settlement that know
on what terms we were before 1 went to
England.

Would you have employed him, had you not
had the orders of your superiors for so doing?
— I believe I should ; but 1 never should have
shewn him that degree of countenance, or con-
tinued it. I might have employed him for a
particular purpose. I was directed to employ
nim in a particular service, and to make it
his interest to exert himself. I never had
ordefs to give him particular countenance and
proleciinn.

At what time did yon employ him particu-
larly P — It was alMiut the removal of Mahomed
Reza Cawu, and the making new arrange-
ments. His interest and inclination were con-
trary to Mahomed Roza Cawn's, and he waa
thought fittest to destroy the influence of Ma-
home<l Reza Cawn, till the new arrangementa
should be confirmed.

Mr. George Vaniittart examined.

Were von at the governor general's when
Comaul 0 Deen made his complaint ? — I was«

Relate what you recollect ot it. — Mr. Hast-
inij^ was in the south-east room of his house ;
Comaul O Deen waa there, and others, when I
went in : Mr. Hastings told me that Comaul O
Deen bad been complaining of him, that Mr.
Fowke had threatened him with punishment, if
he did not deliver an account of barramut^ ;
that he had been relating every thing very cir-
cumstantially by word of mouth ; but had
given in a petition, very short, and of no kind
of consequent. He desired me to explain to
Comaul O DeeOi tbit if what he hftd related

15 GEORGE III. Trial qfJatepk Fa/nke ami aUerSf [IIM

1183J

▼erbally wat tnie, and be meant to oomplaiDi
lie should be as circumstaotial in his petition as
be had been in bis verlial relation ; and parti-
cularly, that be should mention the ctrcaro*
atauce of Mr. Fowke bavuig threatened him
with punishment, if be did not give in the bar-
ramut paper, or aoconnt of bribei : it was on
the subject of tecka collaries. The goyemor
then turned to Comaul O Deen, and himself
told him to the purport be bad been desiring me to
tell. Cnmaol O Deen said. He would go home,
and write such a petition : the goTemor said.
It was unnecessary he atioold go home, that
he might dictate it to bis Moonshy ; be wonid
order his Moonshy to write what ComanIO Deen
dictated. He then left the room. 1 repeated
over again to Comaul O Deen, in Persian, to
the same purport as the governor bad been
telling him in the Hindostan language. I Mr-
ticularly asked him if the circumstance of Mr.
Fowke's threatening him with punishment was
true, and particularly charged him, that be
must write nothing but what was strictly true.
He said that circumstance was true; pro-
mised he would not write any thing but what
was so ; be then went with the Moonshy, I be-
lieve into the south veranda, and I returned
home : I believe 1 did aUy till it waa wrote.

Did C. O Deen ever give you any reason to
think his complaint not true^-Never ; his as-
sertions have always been that it was true.

Where were you on the 80tb of April ? — ^At
the chief justice's.

Did you ever hear Mr. Fowke say, that be
used threata to make C. O Deen sign the pa-
per ? — No ; he said be lifted up a volume of
Churchill's Voyages: I think tne reason he
gave for it was, that C. O Deen went into his
room when he was lying on the bed, and was
troublesome to him. I believe it was to get
back his arzee. 1 cannot say that certainly.

Do you remember any thing else that passed
at the chief justice's? — 1 remember Mr.
Fowke speaking to Mr. Barwell, with great
▼ehemence, ** Can you say upon your ho-
nour and your oath, that you did not receive
the 45,000 rupees f" Mr. Barwell replied,
upon his honour and his oath, he did not. — I
am generoJly called Hoshia Jung by the black
people, it is a title I have.

Did Moonshy Sudder O Deen ever call at
your bouse?-- -Yes.

When was it ? — On the Tuesday or Wednes-
day before the Thursday of the examination.

What time of the day ? — I believe about
seven or eight o'clock in the evening. He ac-
quainted nie that C. O Deen had called on
him, and told him that Mr. Fowke had used
him ill that morning ; that he had obliged him
against his will, to write an account against
Mr. Barwell and mc, of bribes pretended to
have been received by us ; that he was deter-
mined, however, to get back what be had
written, or would complain to the governor.

Did he mention nothing of the governor's
name ? — 1 do not recollect that he did-*-l am
aot sure.

§

Crotf-JSroMflialMm*

How long have yoo koown C. O Dcta F— I
hftd an acqiiuntanee with him ahool IS yen
■go, and not after till 177S.

How came yon acquainted with htoif— I
know him aa being membert and hem fmscr.

Do yon know w any complafaits being pct-
ferred against him ?'— i do not.

Had you erer any particolar eouveraatiM
with bim at your honae? — I think be bia
called on me ; but whether I had any partiea*
lar conversation 1 do not reooltcct.

Did you never torn him onl of the nMNB, ii
a man not worthy to be credited ?— No, never.

What is your opinion of bim ?— I never bai
reaaon to put confidence in bia credibility, ar M
doubt it. I thought him a creditable nian,aii
never beard any thing amiaa of him.

Do you remember any instance of a cbm*
plaint of bia which was found to be tptMindltnf
—No; though I have frequently tieerd of ae*
cusations against bim in the farming bofiBCSi;
the only one I can recollect made bv bin, «ai
against an English gentleman ; and that I k^
lieve to be true.

Did you believe ComauPa aoemation la It
true ? — I did ; else I should not hare joined mf
name in the prosecotion.

Waa it not yonr doubt of hie credit thai
made you tell bim to write only what
— No; from the nature of his story ;
ftom thinking bis credit doubtful.

How long have you known Mr. Fowke?—
I have known him 10 years.

What is vour opinion of bia character?--!
have ever looked on Mr. Fowke as strieil^
honest, and of strict honour, according to ba
own principles ; but I believe the violence if
his temper may in some points lead him oat if
the road of honour without he himself kno^
sensible of it. Procuring accusations 1 tbisk
one of those instances that may lead him out ti
the road of honour. I should l>e embarruK^
to put any other case, but accusations agaiaH
the governor general and those immedaatdj
connected with him.

Is Air. Fowke in the Company's aervice?—
No, he is not; 1 believe he is employed by ge-
neral Clavering ; he is iu office.

Did you, or did you not, receive the 13,000
rupees, on account of the tecka cullarirs, tf
mentioned in the funl ? — I never received ibn
sum, or any other on that account.

Moonshy Secrat Alii Caicn examined.

Whose servant are you? — I am in tbe ser-
vice of the Company ; but remain about ikt
governor.

Did you ever write an arzee for Comaul 0
Deen by the governor's order ? — Yes, I diJ.

Relate the circumstances.- — Aa I go evcrf
day to pay salam to the governor, thai dsy.i*
1 was standing in the outward room, I «*
called, and went in. The governor wassiniif
at his writing-table, and Cumaul O Deea w
at a small distance from him. Another pffMS.
Cantoo Baboo's deputy^ was ibere, asd ibc

I1S5]

Trial ofjotepk Fowke and others.

A. D. 1775.

[1 186

governor's aurizbe^y. Tii« n^ofemor called
ne to him ; ihpn he took the arzee, and ^ave
ii mc to copy it fair ; and went out with Comaul

0 Deen, at some distance from him. When I
benfan to write, Comaul (> Deen said to nie,
Write what 1 dictate. He then, lookin^ron the
other arzee, bei^an to dictate, and I to write :
when I had wrote it, Comaul O Deen read it
over; inwards the latter end there appeared
■omethiun^f confused ; he put it ri^ht, in order
to present to the governor. When J had wrote
it fair, I ^ave it to the g;overnor. Comaul O
Deen followed me. The i^^vernor htf^^n to
read ; and 1 explained it in places he did not
nnderstand. When the arzee was read, the
governor looked at Comaul O Deen, and said,
You say one things, and write another. Co-
maul O Deen answered, I have written what I
before said. The arzee remained witli the go-
vernor ; I and Comaul went away.

Gunga Govin Sing examined.

Did you give directions to Comaul O Deen,
to oonoplain against Mr. Fowke ? — I did not.
Did Comaul O Deen ever shew you an
, complaining of Mr. Fowke? — I saw an
in his hands, at the governor's house ; I
do not know whether he put it into my hands ;

1 did not read it.

Had you ever any dispute with Comaul O
Deen ? — There was soinctliinfiT of a dJMpute be-
tween me and him, about 96,000 rupees.
Mr. Alexander Eiliot i*xamine«l.

Do you remember what passed at ilie Chief
Justice's, reK|iectinar a htwlk which Mr. Fowke
lifted up to Cuiuaul O Deen? — Mr. Fowke ac-
kuuw|eil<j;ed. that he hud lifted a volume of
Churchill's Voyaifes a^^uinst Comaul O Deen,
I do noi remember why, on the mornini;of the
day he came fur the arzee. He said, Comaul
(> Deen was tca/ing him ; and I thiuk said,
seized on his legs ; 1 am not sure ; in conse-
quence of which he lifleil up a volume of
CMiurchill's Vuyutrt's ; it was sumeiliiug about
the arzee.

Do you remember any thing that passed be-
tween Mr. Harwell aud Mr. Fowke at the
Chief Justice's ? — Mr. Harwell s|>oke to Mr.
Fowke with some warmth aliout his conduct
in this aflair ; and Mr. Fowke, ap|>earing to be
ttOffry, asked him if he could give his honour
and oath that he had not received the 45,000
rupees. Mr. Bar well said, he would give his
houour and oath he had not. Mr. Fowke
then said. He must ac(]uit him; that is the
way I generally wipe oA* accusations against
myself. ■■

Veriiict on this Prosecution, Not Guilty.

558. Tlie Trial* of Joseph Fowke, Maha Rajah Nundocomau, and
Roy Rada Churx, for a Conspiracy against Richard Bar-
well, esq. one of the Members of the Supreme Council for the
Province of Bengal. At Calcutta or Fort William, in Bengal
aforesaid: 15 Geouge III. a. d. 1775. [Subjoined to the
preceding Report.]

•• Tcwn of CnU\ The jurors for our lord
€Mita and P'aclory (iha kinf;, upon their oath,
of Fort WiUiam f present, I'hat Joseph
in Bengal^ to wit^ ) Fowke of Calcutta treu ■

tieman, Maha KHJah Nun-
docomar Behader late of CJalcutta inhahitaiit,
ami Roy llada Churn of the same place inlia-
bilBDt, all of whom are subject to the jurisilic-
tioB of the Supreme Court of Judicature at Fort
William in Ben^l, beinc persons of evil name
and fame, and dinhonesi reputation, wickitlly
devisiDiTt and unjustly intendini^, tf> deprive
Richard Bar well esquire, one of the members
of the council for the province of Bengal, of his
good name, credit, and reputation, and to re*
pri^eent him as an unjust and dishonest person,
and anfit to lie trusieil wiih the hif^h office and
aaibority which he hoUls in the said province
of BeoKal, and thereby to brimif him into the
ill opiaioo, hatred, and contempt, of alt his Ma-
jcety'a anl^cts, both in India and Great Bri-
faim did, oo the 19ih day of April, in the 15th

* See the two Caict imuMdiatcly preceding.
VOL. XX.

yearof the reii^n of our sovereiflfn lord Ceor^a
I lie 3d, by the orace nf Clod, nf Great Britain,
France, and Ireltind, kinif, defender of the
fuitb, and su forth, at the ttiwn of Calcutta, and
factory of F.irt William, fraudulently and uu-
lawfully conspire, ciHiilHne, and airree amonff
themsc'lves, falsely to chui^'e and accuse, the
said Uichard Bar^teli, for tliut Iip had Ciir-
ruptly and colliiKlvely received !<everBl stuns of
money from one Coiuuul al Dcnii AlU'c Cawn,
in the nature of bnl)vs, or for services rrndered
by him to the said Comaul a I Dren A I Ire C:i\« n,
by virtue of his office, and the authority o-' his
station in this province, and by that m'^ans to
represent the said Richard Harwell as i;*ti|(y of
wilful bribery and corruption in his i.ffice and
duty : and the jurors aforesaid, u|ion their oath
aforesaid, present. That, according; to
the said considracy, combination, and ^^ ''""■''
a^^eement, ttiesaul Joseph Fowke, Mr ha Ua-
jab Nnndocomar Babader, and Roy Rada
Cham, did at several times, make use of per-
suasions, promiset, and threats, to prevail on
the said Comaul al Deen AUee Cawn to accoM
4U

1 187] 15 GEORGE UI. Trkl ofJaqA FmU amd Mtrs, [1181

the said Richard Barweil of bafinfr receired
the said sunui, and of being guilty of the said
offence of wilful bribery and corraption ; and
the jurors aforesaid, upon their oatb aforesaid,
do furthfr present, that also the said Joseph
Fowke, IV] aha Raji^h Nundocoinar Bahader, and
Roy Rada Churn, on the said 19th day of April,
in the year aforesaid, according to the said
coiiffpira<'y, combination, and agreement be-
tween themNelves, before had as aforesaid, did
make, frame and write, and caused to be made,
frame<l and written, a certain writing or paper,
purposing, that sums of money had been so
paid anti received ; to wit, to Warren Hastings
esq. 15,000 mpeeH, to Richard Barweil esq.
45,000 rupees, to Hoshyar Jung, thereby mean-
ing George Vansittart esq. 12,000 rupees, and
other sums of money to other persons ; and
did falsely and wickedly prevail with and force,
by intreaties, menaces, and other unlawful
means, the said Comaul a1 Deen Allee Gawn,
to write words on the said pa|)er, purporting,
that he acknowledged to have paid the said
•urns to the said persons: whereas in truth
and in fact the said Richard Barweil never re-
ceived an V such sum of money ; and the said
Comaul al Deen Allee Gawn, at the same time,
and immediately thereafter, and also since that
time, declared the said accusation to have been
false, and violently extorted from him as afore-
said, to the great damage of the said Richard
Barweil, to the evil example of all others in the
like case offending, and against the peace of
our said lord the king, his crown and dignity.'*
Signed, Ja. Prftchard,
19th Jane 1775. Gl. of the Grown.

W, M. Beckwith,
Gl. of Indictments.

Comaul O Deen Catcn sworn.

Q. Are you acquainted with NundocomarP
•~"^« Yes.

Did vou ever make application to him for
monevr — 1 have often.

Did yon in the month of Chyle last ? — Yes ;
I burrowed 3000 rupees of him in that month.

Relate the conversation that passed between
you and Nundocomar. — When I returned from
Houghly, 1 went to Nundocomaf's house: he
was not at home : I sat down in the Dewan
Gonnah, and Malta Itnjah came soon after: J

five him a gold mohur : he asked me whether
had heard what passed between the governor
and council about harramut, and the Muony
Begum : 1 answered, 1 have not heard all :
BluTia Rajah said, Mr. John Graham is my
enemy, and 1 am his : I was not an enemy to
the governor: the governor has told me, I will
think much about you, be upon your guard. 1
thereupon consulte<l with Mr. Fowke: Mr.
FoMke ansv%ered me. Do you get barramuts
against the governor, Mr. Barweil, Mr. Vansit-
tart^and other gentlemen ; and i will procure for
you the placeof tlieaumeen of thekhalsa; I then
gave him the barramut, on account of Munny
Segum, and 1 ba? e proved the goveraor to be

in the wronir to the coiMlal* Nimdi
aaid to me. Do you get barinuButt for the per*
gunnab* of uysadel« Aviogoo, Tundook,
and whatever places yon can get them fiwa.
1 then answered. You have told me of gcitii|
barramuts against the governor mod oih« gOH
tiemen ; hot on bearing this, the people ifiak
ill of you ; you waa before in Iriendahip with
the governor, and now yon talk of getting bv-
ramnts against him ; and there is now a frkad*
ship between Mr. Barweil anil Mr. VaaaitlBrt;

Sou are going bark wards and fbrwnrda to thor
ouses: P(f ondocomar said, They send oflnii
caH me ; therefore I go : I then said, I hna
given nobody any thing, on account of Hi^
gellee. What do 1 know, what has been dm
at other places ? There was other eonvefialiifc

f massed, but I do not remember it novrhi
aughed and said, go and get the nipett jh
wanted to borrow from Roy Rada Chun, mk
when the Burdwan man gets his kellant, 1 wi
talk to you further on the subject.

When did you see Nundocomar agaiaf-^
was either on the 30 Phaugooo, or Iho Id
Chyle.

Did you see Mr. Fowke loon after UmII^
Yes ; a few days after I Went to Mr. Fo«h6
with Roy Rada Churn.

On what occasion ? — Maha Raiah had Iril
me, You have had a quarrel with Mr. Fowke;
go and be reconciled to him, and hjr fail wmm
get introduced to the general, colonel Moomb,
and Mr. Francis : I said, Tliere is no gml
things in being reconciled to Mr. Fowke ; ai
you get your kellaut, I would not be iatn-
duced to the gentlemen : I will notW to-dij.l
will go to-morrow. Tlie next day! weatwtt
him to Mr. Fowke's : 1 offered Mr. Fo«lnt
nuzzer of 5 rupees, which be did not take: It
told me to sit down : he got up and nect
into his bed-cbaniher : he then called roeistv
him, and Hoy Kada Chom and I went n
together: he said many kind tilings tone,
that he had heard of my |iraise of Maha Rajah:
he also said. You u ill be ou good terms «ak
Maha Uajah : I will get the business of Pir-
nea for you, and \« hatever Maha Rajah biii
you do, do it : he then gave me beetle, ottv,
4£c. and my dismission.

When did you go again to Maha R^iahP—
Two days after, in ihe evening ; 1 did bH
choose to go sooner, because I heard bad wsi^

What bad words P — Al>out the harramut

What did you go for ? — 1 went to get af
dismission to goto Houghly.

What passed that evening? — Maba Buk
asked me, Where is the small arzeeyoam
lore gave in to the governor against Vr.
Fowke? I said, I have it: MabaRajahsndi
Bring it to me to-morrow evening, chat 1 0if
see it : when I have seen it, I will then gn*
you your dismission : I went home ; my dl
moonshy was gone to his house ; at as«i
whatever I remembered, 1 cauaed to bt vitB
by my new moonshy.

* A small district coDiifling of •cvenlfAl*'

1 189] 'Jhfr a Conifhracy agaiiui Richard Banoell, e$f. A. D. 177S.

[1190

Why was the old moontby gone from your
hoose r— The eraeo was io Ibe potweewoQ of
my old mooDiby.

What did you do with whet you bkl your
new mooDshy write? — I kept the paper newly
written in my poaaef^ion till the eveninic : I
•caled it, and carried it to Maba Rajah. Maha
Rajah read it, and kept it, then gave me my
dianiasion for Hooghl^.

Why did you imairine that Mr. Fowke and
tkc Maha Rajah wouM ask you for harraniuta P
—They talked to roe about harramuta ; there
waa a cntcherry of harramuta, tor all tlie je-
nindars : 1 alone do not know this ; all Cal-
0Qtta knowa it

You aay yon went to ask your diamitsion for
Hoaghly: when did you return? — I went
In* Houghiy ; while 1 waa there, I heard that
M oonahy hudder O Deen waa coming : hear-
ing that, I returned : I believe about the last of
Chyle.

When did you aee Maha Rajah again?—
When I went for the arzee hack : aUiut the
4lh or 6th Bysaak.

What then passed P — I aaid to Maha Rajah,
Moonahy 8udder O I>een is come hack, and
tho buainess with Gunga Goviu Sinjf is set-
tled : irive me the arzee hack again : then
Maha Rajah aaid, What has been done about
the rupees you spoke iu Roy Rada Churn
•bout? I anawered, I have not got the rupees
lirom Gnnga Govin Sing ; and i will now, if
yea pleaae, give it you in writing, that when I
lecei^e them, 1 may give you the sum pro-

(Comanl O Deen here says, that he has
not bis recollection about him to-day, and ac-
ewinta for it as follows) ;

My vakeel has been tied up by Ramch under

.8ein for money, and great disgrace has liillen

OB me: I am the renter of Hidirelee, i let it

te farm out again to Bussunt R<»y, and gave

■eottrity to ffoverninent : Bussuut Roy pavs

Ihe rent, and Ramchunder ISein, dewan of the

Jkbalsa, baa tied up my vakeel viithoul Mr.

CottreH'it order, or without his being acquainted

■with it: Rumchunder 8ein is a luuuuddy, and

I mm a man of reputation ; ihe lying up my

vakeel ia the same as tying me up.

What did Maha Rajah say was done with
the araee ?— Maha Rajah aaid, I have it not,
Mr. Fowke has it : I then said, I deposited it
with Roy Rada Churn ; why has Mr. Fowke
got it?

What answer did Maha Rajah niake ? — He
Mid, What doea it signify to you? come to-
Morrow: when 1 went the next day to Maha
Bajah'a, he told me, Mr. Fowke says, the
leijj^e araee which vou gave to the Governor
in the month of Pons, complaining against
^m} if you will write thus, that you did not

£'ve in the araee on vour own accord, but by
e direction of Mr. John Graham and the Go-
vernor: write in this manner: Mr. Fowke
havinir read it, will remember vou in his heart;
ha wul know thai yoo are bit owd miQ : 1

then replied to Maba Riyah, Shall I tell a lie?
Maha Rajah aaki, It must be wrote: it waa
necessary for me to get back the arzee againat
Gunga Govin Sing ; and I said, Very well, 1
will write it when I get home. I came to my
own house, and wrote in auch manner, aa in
aome nMaaure to comply with his desire, and
at theaame time to aave myaelf harmless, and
left room for my own conscience : 1 took it to
Malia Rajah's ; he was out: I sat down in the
dewan oonnah : Maha Rajah soon came, and aa
he waa getting out of his palanquin, I gave him
the arzee. He read it, and laughing, aaid,
Thia is nothing; in the evening bring your
Moonshy with you : I became angry, tore the
arzee, and went home ; every body knows, I
am a paaaiooate man when I hear a lie. In
the evening I returned, and took mv Moonahy
with me to Maha Rajah'a : I sat still in silence:
Maha Rajah cauaed draughta to be wrote out
by my Moonahy and hia own, Domaun Sing ;
be then altered them with his own handa, and
told mv Af ooushy to write out a fair copy ; I
also told him to do it ; I acquainted the Maha
Rajah that I had a great pain in my belly, and
desired to go home. Maha Rajah aakol me if
my pain waa very great : I said, Yes, and got
my dismission. When one par of the night
waa past, my Moonshy and Yar Mahomed
came to one : Yar Mahomed said, ftlaha Rajah
has sent this paper, put your seal to it : I said,
No; there la no agreement between Maha
Rajah and me about sealing it. I then gave
Yar Mahomed my hookah to amoke; he
bmoaked a little and went away. In the morn-
ing 1 went to Maha Rajah : he said to me,
Rada Churn ia gone before, with the arzee ; do
you follow him to Mr. Fowke's: I went from
Maha Rajah to Mr. CottrelPs ; and as I rame
out from Mr. CottrelPs, Rada Churn's hir-
carrah came to me, and sai'l, his master waa
at Mr. Fowke's house, and called uie thither:
I then went, young Mr. Fowke and Rada
Churn were sitting in his room (young Mr.
Fowke's room). After the usual compliments,
Rada Churn went into old Mr. Powke'aroom;
he came out again iu about two gnrrya. A
little after, Acoor Munnab came lo me, and
aaid, Mr. Fowke called me. I went : ftlr.
Fowke was sitting upon the bed, with his feet
hanging down ; and ordered me a chair, to ait
oppoaite to him. Two writers and two Ben-
galiea btood behind me. One of the liengaliea
was Acoor Munnali, and I know one of ihe
writers. He then took out the arzee from off
the bed, near the pillow, and abked me if I had
given that arzee. J said, Sir, that is not an
arzee ; it is a jabob sawaud : I wrote it ac-
cording to the pleaaure of Maha Rjah. Then
Mr. Fowke put on an angry face. I said.
There is wrote in this the words, ' ^urry peri-
vium, adawlut booster, and ershaud mea-
hawiid ;' t. e. * Protector of the poor, distri-
bntor of justice ;' and * it is ordei-eil.* I aaid,
Who is the giver ef onlers? Mr. Fowke then
angrily told me to seal it. 1 waa afraid ; and,
patting the end of my jamma aboiu my Mck|

1191]

15 GEORGE III. Trial ofJouph Fmke and othen,

lim

said, Sir, for God's sake, do not re(|iiire roe to
f)o such business. He then took up a large
fM>ok, and said, God damn you, you son of a
bitch. 1 siiid. Sir, well, gife it me, and 1 will
seal it. (C. O Deen here describes the book.)
Mr. Fowke laid down the book, and 1 sat down
on the ground : the tears ran down roy cheeks,
and I quivered and shook through anger and
fear. 1 then sealed it : he took it of me ; and
then took out a furd, and asked me, Have you
given Mr. Barwell in three years 45,000 ru-
pees, at the rate of 15,000 rupees a year ? I
said, I had. Did you give Mr. Hastings
15.(X)0 ni|>eet? I said, I had. Did you give
]Mr. Vansittart 12,000 ru|)ees? I said, Yes.
Did you give llajah Rojebullub 7,000 ru|>ees ?
1 snid, Yen. Did you give Cantoo Baboo
5,000 rupees? 1 said. Yes. He said, sign it;
and then put the (urd into my hands: 1 looked
at it, and saw the five names, with the different
sums opposite to each. The ink -stand was
lying on the bed, and I put iny dusket on it —
\«-riiing. '* Russum Rudum 'and Dudam."
When 1 had signed the arzee, Mr. Fowke bid
me tell tlie pec»ple behind me to witness it. I
snid, Very well, let them do so. 1 then gave
him the furd, and he told me to go.

Where did you go? — I went out, wiping
my face, and stood upon the stair-ca«e. There
was a man named Samnheer lieg standing
tliiTC : I said to him, 8ee what violence has
been used with me. He answered, I see the
consequence ; but know nothing of the cause.
I said to him, I^t me fetch breath, and 1 will
make you acquainted with the cause. Then
Jioy llada Churn and young Mr. Fowke,
liol(lin){ each other's hand, came and stood
upon the landing-place. I said to them, Tell
]VIr. Fowke to jrive me back all the papers
ivliioli he has bv force caused me lo write, or I
■uill spoil myself (arah kurra)^ and, tearing
my I'lotlM's, ijo immediately to the council.
They then said. Don't be anjrry ; be a liu!c
cool, and we will speak to Mr. Fowke. They
went to him ; and in about one and a half or
two giirrys came out again. Young IMr.
Fowke had ihe cover of a Irtter in his hand,
nnd said to m<*. Your papers are all in this; I
)iH%e l)rtiii<r!itilieniout, but will keep them with
inc to-day: You come to-morrow ; Maha Ra-
jah will likewise coine ; and whatever Maha
J{ajali pit as(-u, and shall be agreeable to yon,
shall 1)1* (lone. I then came awny.

After yon came away, what did you do?— -
When finir uinrrys of the day were remaining,
J went u\ Mnonshy Sndder O J)een, and said
to him, Mr. Fov%ke has by force caused me to
put my seal npon an nrzce, and to sign a furd :
1 am going to Maha RHJah ; I desire, if you
have an oppo'tunitv, that yon will troand ac-
quaint Mr. Hiirwefl and Mr. Vansiltart of all
the circumstances.

What was he to acquaint them with ? — Of
these circumstances. I went to Maha Rajah's;
lie was in his inner apartments : I went and sat
down with Samsheer Beg; we said our
prayers together. I then went to Roy Rada

CharD, and, talking to hiia, took m |iilk>w aad
sat down. Maha Rajah csme oat into the
dewao connah : I went and sal dowo by him ;
1 then related to him all these circamilaiices.
Maha Rajah oonsoled me, and said to me, Ds
you be content ; 1 will go in the roomiog, ui
get you back your arzee. He gave me scttJi,
&c. and my dismitsioo. I went awav.

Where did you go to next? — 1 went ti
Moonshy 8udder O Deen, and told him aH
these things. The next morninfr I wentti
Mr. Fowke's : Maha Rajah, Roy Rada Chut,
and old Mr. Fowke, were in the room : 1 slosd
upon the staircase, and did not go in, through
fear. Soon after, Mr. Fowke came oat ; Iha
Maha Rajah came oot, and Rada Churn. I
addressed myself to Maha Rajah, and sni,
Sir, what have you done for roe r Maha Rijik
said, What can 1 do for you ? I have talkfdi
great deal to Mr. Fowke ; but he dues nt
mind me. Saying this, they went down snin
to their palanquins : just as they were seitinf
off in their palanquins, 1 began to tear bj
clothes, and called out Douy . I then got wm
my palanqnin : hircarrabs laid hold of it, lid
scuffled with my people ; and w ent on in thtf
manner, scuffling, till I got to the Bitah Cn-
nah of Rajah Rajebuliub. 1 went and con-
plained to the Chief Justice.

Did you go no where else, before you wot
to the Chief Justice? — Yes, I went to thefs*
vernor's.

What did be say to you? — He said, IfhH
can I do ? They are three gentlemen, I an bit
two : 1 can do nothing for you in this. Y«
must go aud complain in the King's Adavkt;
I cannot do you justice.

Whose hircarrabs laid hold of your 'pain*
quin ? — How should 1 know ? Do 1 wntedovi
their names? How can I tell?

Do yon know whether they belonged to Mr.
Fowke, Maha Rajah, or Rada Churn ?— I h
not know whose they were. Why should tbrr
belong to any body else but one of tben^
Thev called me to come back ; sometimes Sli-
ha kajah, sometimes Mr. Fowke, and iobm-
times itada Churn, wanted me.

Why did you call Duoy, when Mr. Fowke
and Maha Rajah were gettintr into their pabft-
(]nins?--l{ecause they hftd taken from roe, kf
force, a false barramml. Why should 1 nil
call out?

In what language was the furd writteor—
In Ferfiiau.

Had you ever seen the hand- writing before?
— No.

Did you form any opinion then whose tf
was? — No.

When Mr. Fowke asked you, if voo )d
paid the sums of money to Mr. Harwell, »fcj
did you say— ves?— 1 said »o, because I
knew he wanted barramuis, and in saying v I
should get free.

Did you ever gife I hose sums to Mr. Btf-
well, or any other sums of money.'— Nti

never.

Had you ever any quarrel with Mr. Fowb'

^me

VBS] Jor a Coitspiracyagfitiut Richard

—Thatduy, and ooce befurein Ihe monlli of
Paoi. Tlicre wu nodiierl quirrel: Dnniassy
Gbote complaiiml to llie general, aoU llie ge-
nertl rtl'crrfd hii camplaint to Mr. Fnwke.
ItarnRSBy iihote told Mr. Fonrke, that t liaiH
lakcu llie farm at a very great cx|ieiice: on
whieb Ur. Fowke saitl to mt- , Do jrnu lell Inie
what TOO liave ^ii-eii tn llie Eu^li>li gentlemeo,
aoil wW to the Muisuildies ; it' you do uut
tel). yuu shall be piinisheil-

What answer Jjtl you give? — I iaiil, 1 hare
not 7 iren aa^ body say thing' : wbat's Ihe use
orielliiiEB lie?

la consei|iieiiceorihU, what did you do? —
1 had miniberlegs Ibnu^bla in my oivii nilod ; '
but I went and gtte tlie small arzee to the ^o-
teroor. aiiri nroteout a little; for ihia reason,
that Ihr [;<)tc'riinr was a great man, and Mr.
Fowke at) Eiiglisliman ; and that it' I « rule a
great deal, he might be angry.

When Mr. Fowke asked you to tell him
what sum you i^ave to (be Ei)(;li9h gentlemen,
tlUI he not say homethini^ to you about taking'
•o oath ?— No, he did not.

What, not when Mr. Fowke was examining
Ifae coraplaiut of Bsrnany Ghose? — No.
Ctimaul 0 Dcm cross-examined.

Did RIaha Rajah lell ynu to ^et false barra-
inulf?-'ne did not fell me either true urfal&e;
be told me (u bring barramuls.

Did he lell ynu to bring barramuti agninil
any parlicular peojile, or only against those lo
whom ynu had given money i*— He nanrteil the
ge*ernor, Mr. Harwell, Mr. Vaasitiart, ifaeMut-
Buddies, and other people. He lold me to i;et
whalcfer linrramuts 1 could find, from Flidge-
lee, flee, and named I he namea as hefnre. I
did out mean 10 lodge a complaint agaiiisl
Gunga GoTiu Sing ; and Iberefore why should
I write every thing that was true? I had a
claim against him for 36,000 rupees.

Dill ynu offer Maha Rajab any money, pro-
vided he sbonld recover this sum ?— I told
Rada Churn that I wouUI give 4,000 rupees in
ftlaba liajah, and 3,000 rupees to himself,
provided he could recover the whole amouni.

Waathe H'h'>le 26,000 rupees (boaa Jide)
due 10 ynu ? — Ilwiis; but (junga Gavin tiing
has lold me, that he has brought the money
due to me for the tecka collaries, lo account of
moDEy due from me lo the revenuea.

■■ it not customary wiib you, when one ru-
pee is due, to demand four? — 1 am a liirmer:
ihis is a Bengally dispute. Among ourselres
ve sty filly diffeient kiod nf tilings. There
was at that lime no complaint loili;ril ; when a
complaint is ludged, and we are piii upon our
oalhs, »e say whatever is true. Ten of my
under-tenants may come to me, and 1 will
tay lo one, ^'ou are indebted lo me, 1,000
rupees: he will say. No; 1 only owe ynu one
hundred. Till Ihis day il never was in ihe
cnsloni in Bengal for uemindars, or farmers,
but lu say some lies and some truths, when tliey
■re not put upon their oslhs.

nUf did you damaud more than was really

His, I judged a sum to
Gl. (i. Slug laughed,
fuol ? you hate no Bdoh
, Ifyou have any

Bamelhaq. A. D. 1775. [1194

due?~.By my a
ihal amount was

and said. Are yi

claim, you muslmsbe it ooBussuni Roy,

How much did you aelually receive from
GungaGovinSiiig? — By the means of M»on-
shy Sudder O Ueeo, I got 10,000 rupees. I lold
Mounsby Sudder O Deeo, Whatever is due, do
you, upon your religion and conscieuce, ad-
judge lo me. And I lold G.R.Sing, Do you,
asaKiadoo, upon your religion ind conscience,
pay mp what is due.

Was 10,000 ru(>ees the whole yon received
in money or otherwise ? — 1 only got 10.000
rupees. I have lettled every thing from tbe
' t of Assin to the end ofBliaudun.

What became of the other IQ 000 rupees ?

W halever was, Bussnnt Roy kuowa ; I do not.

Was it wrote nS'. on account of revenue?—
GuDga Govin Ming told me, that (vhatever re-
'e would settle with Buuunt Ruv. I
got 10,000 rupees, which 1 Ihought a great
deal : it is now public, and all Ihe mercbanti
come to me for money. The claim ihal wag
upon me from Ihe reveuue, was ended on Ihe
last of Bhaudun: from that time lo ihts, (here
has been no claim on me, on account of reve-
O. G. Sing shewed me many papers,
and made many demands. I do not kuow
nhat was aelually due.

Did Guiiga Covin Sing lake the 16,000 ru-
pees 10 settle Ibe accrmots P— God knows : I
st^illeil lliem on his conscience, 1 wis cleareil ;
and be was satisfied in respect to all claims, '
except as 1 1.

Who was to pay wliatever was due before
Bhauduo, on tbe setllemenl of Ihat account ?

Were ihe claims made by Gungil Covin
Sing on your own account, or of tfivernment?
—I had none bnl rrvenue accounts wiih hilt).

When was ihe firsl day yfiu went lo Mr.
Fowke'i?-— It was when I went with Rada
Churn, towards the last of Chyle.

The first lime you went In Mr. Fowke's
Louse, did you see him? — I did ; and offered
him a nufzeen of Ave rupees, which he wnuld
DM u<-ce[it. It was the first time after llie af-
fair of Barnassy Chose, about tbe end of Chyle.

Did you see young Mr. Fowke ibat day ?
— I saw him iu his own room : 1 did not speak

Did you at this lime tell Mr. Fowke senior
what had passed hetxeen you aud Msba Rajah
Nundocnmar ? — No.

lu tbi; arzee you carried lo Maba Rajab,
what part did Maba Rajah strike onl f The
arzee afterwards sent lo Mr. Fowke? — How
should I know what he struck uul ? I did not

Did you hear the whole dictated tu the
Moonshy ?— Have 1 nol ears P \\\iy should I

Did you make any objeclions ?— No. What
objections could I make ? He lold me to bring
my Muunshy, lo writ«aiuiUv».

GEORGE III. Trial of .hifph Ftmke and olArrt,

[im

Wh™ ftid ytm go next to Mr. Fn»ke'a ?—
The next tliy.sflfr I hiulbernal Atr.Collrair

What (ime nC ili« >lay w(b it!' — 1 bkd no
watch i more or tei« ihsn one jtur.

Did you go iulo Mr. Fuwkf cfnior't ra
— Wbeo AcDor MumiRh cftlleJ me, llii

Were there any body el«ef — Acour Miinnah,
■Dollin' BeagYlly, anil two irriiera, came Hlter-

Did lh»e people come in ilirerlty nller liim ?
•^By the time I had sat down, lliey c4me and
■lood behind me.

Did they iiiiy BB long** you didf— I haie
already tuld you, nliilsi niwlerale cunversalinD
laated, lliev wera ibere. When I was on the
ground, I know not wliether ibere were Tour or
ten in the room.

Wben did you fall un llie eround 7— When 1
Btkeil Mr. Fowke who wa« (lie Gurry Punrsr,
Adaulet Bootlrr, &c. and h heu he was ang^ry :
1 ihrn went down on the ground, putting (he
and ul' my jammah round my neck, at I hare
•Irenijy ahewn.

What Iheii passed? What naade you go
down on (he ground P — Mr. Fowke look np a
book, and mlleil out, GikI damn you, you ion
•I' a Mich ; when he told me in aeal (be arie^ ;
OD wliich I aaid, Oife lime, and I'll aeal i(.

Da you alwava ail whru you li^o and ieal f
— ^melimet wlieu 1 am aiaDiling, and lorae-
limeaaitiing.

What passed when ynu were down on the
gp-ounil i* — I cried, ahooL, aud pul my seal lu

ti«'l

1 I H

n great

Du you reiTollect any thin); tlinl pMsrd at ibe
time f — I put my seal lo Ihe arzee, and signed
the furd. Mr. Fowke ihtn bid me go : nhst
more should I remember?

Do you remember the peuple that were in
the room at Ihe lime?_My head was dowD-
warda ; alter he hid me seal, I <;oul(I not lell
who, or how cao I now tell, who aiands twiiiad
me?

Did any bo.ly el*e speak lu you ? — No.

Did they do any thing else ?— No.

Waa the dnor t.hut P~No.

When vou went out, did you see the people
ntnlionril, or knaw them ? — No,

How Ionic do ynu iliink you were in Mr.
Fawke'n room? (Mr. F. senior.)— I had no
Walcb ; itHiut one or iwo if urrya.

Were ynu in Mr. F.iwke'a room more than
one lime ihat day ?-Nu.

Waa the duiir atanding wide open, when ynu
went iuf— B"th wlirn I weni in am"

When you weol into Mr. Fu>vke-s
many people were iliere P — 1 told y>

II. w many people »>-re (here
' dill jou ubMrre i»e»eral ? — When 1

weni lU, tlirre Here mwiy j wfaeu I caw« out,
Ibere ttere taw.

[Beiu)f further interriwaiefl. be cause
exHUily, bun many al eiiher time.]

Uo you know, or think, thai the lour pi
two Kriagies ami two Bengallya, were i
you K» guards? — No.

Did vou erer altempi to go mway befote |i
■ctiiallydidgoP— WheuMr. Fuwkeioliln
go, I did go.

Uid you wiile any thing on Ibi

Did you erer write yonrname ot
— I did nul write any thing; Ihe Mag
wrole my name j I did not ; I da n
what Mooiiaby wrote ; it waa all \
Alalia lt.ijiih'1 house.

Did Mr. Fowke eier thnaten yoi

le ?— No.

aure that yniing Hr. Fowkfld
Rada Churn Here in the loain when belt
ened you T — .1 cannot lell ; 1 did noi «
did you firal see the furd y

ofr— 1 I

t ihal ti

1 heard af barrftmuda, but not then
mtDlioned in the furd.

U'bs the liird ahewn immediatriy wbaill
went down on the grvund ? — Alter I iHtd t
llie ar/.ee aud luld Ihe Fringiea to be witn
ihe furd na» immediately produced.

Did any Ihini; itileneue be(we«ii ypnrtL-
ing thearzeeond Ihe production of Ibsfiirdfl
I aaid. lei thetn be wiloeaaes ; be ihai
duced (he furd.

Do you recollect what you wrote «. ,
furd 1*— I wrote, " ftussutn Nullum ami D

any tiling else wrote on the funi '
45.000 rupees.

Was th
—Ye..

Mr. Harwell

Mr. Hailin|;a

Mr. Vanaitlarl 13,000

R. Rnjebulleeb 7.000

Caolou Bihou 3,00U

IV ere (here no ollwr words whaleeerw.
fun) T — I aaw no more.

Was Iheie any ibtag uf lA.OOO
year? — He lold ma ihal by word

Al the liuie you wrule this uu tl
there any body in the room f — I dan'l

Were you friuhleneil ? — Vea ; «Im

eiihl I hare been down f

When Mr. Fowke aakcd,

n Ihe s(

Barwell, Jic. did he bid
It bid me >ay yes.
Who had the pen and

the furd?— .Jl V

Whose bend-wriling I
ihould 1 know P How can 1 g
ike any body 'a hand

that day ?—t

which was lij

Did you ueser My that you guoMed wfefcfl

1 197] frr * Con^piraef agdmt Richard Bamdl, etf. A. D. ITIS.

[1196

wrote the fard ? — I don't remember that e? er I
did.

Did you erer lee Rada Cham write ?— He
has wrote a thoasaad timet before me.

Did the Go? emor General ever aay to yon
these words, ** They are three gentlemen, I
am but two ; I cannot redress you ; you must
^ to the AdawlciP''— Yes ; the day 1 went to
complain.

^A paper being shewn.)

Can yon form any judgment whose'writiog
this is T — I can't tell ; yon may call my Moon-
shy. 1 told liim to wnie such an arsee, or re-
quisition, for the Adawlet of Hidgelee.

Did you ever see any other arzee on any
other day at Mr. Fowke's house ? — I nerer did.

Are you very certain ? — Except that paper, I
never did ; what more can I say P 1 am on oath.

Had yuu any reason to think that Mr.
Fowke expecledf you that morning ? — What do
I know, whether he ex(iected me or not P A
hircarrafc came for me ; I went.

Had you told Hada Chnm the night before,
that yon would next day go to Mr. Fowke's ?
—No.

Did you never at any time tell Rada Chorn
that yon would go to Mr. Fowke'sP— No. 1
toM Maha Rajah.

Meonshy Sudder 0 Deen sworn.

Are you acquainted wiik Comaul O Deen
Cawn ? — Yes.

IVbat passed between you and him in the
month of Bysaak last P — He spoke to me two
or three limes, I believe about the 3(1 or 4th and
glh of that month.

vVbat did he say to you P relate it.«^He
told mc, that Maha Rajah had said to him, that
he must write an arzee on the subject of the
tecka collaries; be would not give it him; he
would not bring so much shame upon himself,
ilaha Itajah also told him to get a barramut
■niost Mr. Harwell : he gave him a denial :
toio is all that passed the first meeting between
Conanl O Deen and me.

Did Comaul O Deen mention any other
— ae than Mr. fiarwell's? — I well remember
Mr. Harwell's name : I do net recollect any
ether ; at that time he did not mention Mr.
Haotings's •ame.

Slite whsit passed on tlie 8th Bysaak.—
When about 4 gurriea of the day were remain-
iBf^, Comanl O Deen came to my house, and
Mi4, that be had been that day at Mr.
Ftfssikia's; end that Mr. Fowke had by force
esfioad him to oeol a paper account ot tecka
iwliwiea, and 4iad mane him sitni & funi : he
Mrid, be aealed the arzee and signed the furd.
Wbee he had j^t into his own management,
(he dhrpetod with Mr. Fowke; and it was
^ree4 upon, that in whatever manner Maha
Ri^h ihoold settle it in the morning, so it
VbotiM be. If, says he, Mr. Fowke will give
me beek my areee and papers, it is very well ;
If not, 1 will ruin myself. You are my friend,
CoonmI O Deen said to roe, It is proper yoo
rtwrid eeqnaint Mr. Barwell aQd.Hr.Viiiiit-

tart : he then said, he was going to Maha Ra-
jah's, and would come back at night, and ac-
quaint me with all the particulars : be came
back again afler 6 gurries of the night were
passed, .and told me, that Maha Rijah wonkl
give him back all hispapera: he said, De
you now hear the particulars. — ** I gave in
arsees against Gunga Govin Sing, and de«
posited them with Roy Rada Chnm, with
the knowledge of Maha Rajah, and aaid.
Let these arzeea remain aa a deposit: if,
upon the return of Moonshy Sudder O Deen,
the difference between Gunga Govin Sing
and me shall be aettled; I will then take
back the arzeea, and give 4,000 rupees to Maha
Rajah, and 9,000 rupees to you : it is now two
days since I made a demand on Maha Rajah
for the arzees ; and Maha Rajah said, Tliey
were with Mr. Fowke: he (Maha Rajah) tbes
said. Do yon write an arzee so as to give a bad
name to the Governor and Mr. Gmham : I said.
How can this be? But Maha Rajab said, Do
one thing, write a story about the tecka colla-
ries ; and when I have shewn it to Mr. Fowke,
1 will get you back your arzeea against Gunge
Govin Sinji^: 1 then told Maha Rajab, that I
had a pam in my belly, and wished to go
home ; 1 told him, my moonshy waa there to
write ; I went home ; Yar Mahomed came to
me at night, and brought the arzee about the
tecka collaries, and t(Md me to seal it : I an-
swered, There is no agreement between Make
Rajah and roe, that 1 should seal it."— Co-
maul O Deen said. That he had been at
Mr. Fowke's that day, and that Mr. Fowke
was very angry with him, took np a book to
beat him, and had caused him by force to seal
an arzee, and sign a furd : I asked Comaul O
Deen, what signature he had put upon it ; he
answered. In some I put * russnn nudun,' and
some * dadam.' Afterwards, when he became
his own master, he made a disturbance about
it, as before related : he told Maha Rajah of all
this, and Maha Rajah Raid, He would give him
back the paper. This is all thatComanl O Deea
told me.

When did Comaul O Deen say, Maha Ra«
jah would give back the paperap — On the mor-
row-morning. 1 likewise remember asking
Comaul O Deen, whose names were on the
furd ? And he told me, Mr. Harwell, Mr.
Hastings, Mr. Vansittart, Raja Rajebnilnby
Cantoo Baboo. So much I remember.

You say that Comaul O Deen desired you
to acquaint Mr. Barwell what had passed. Did
yon P— J told Mr. Vansittart that day.

Did you ever acquaint Mr. Barwell P — ^There
were but 4 gurries of the day remaining : I
acquainted Mr. Barwell of something ; but he
does not know the language ; 1 told him but
little.

You speak of an arzee preaented by Coanul
O Deen to Rada Chum against Gunga Govin
Sing : do you know any wing of the dispute P
—1 beard of it when I returned to Calcutta.

Was this dispute aettled by your mean?-*
Yes» it was ; they both agreed.

HSU]

15 GEORGE HI. Trial of Joseph Fateke and otheH,

[1209

Did Comaul O Deeo acquaipt yoa with any
€]uarrel he had with Mr. Fowke id the month
of Poos?— He did.

State what yoo know rftpectin^ it. — Co-
loaul O Deen told me this : that Barnatsy
Ghose had lodgtrd a complaiot against him on
account of the tecka collaries to the liberal :
the general had referred it to Mr. Fowke : that
BarnasMy Ghose and he had conversed on the
sabject before Mr. Fowke ; whatever questions
Mr. Fowke asked him, he answered : that Uar-
nasav Ghose had told Mr. Fowke that he cfot
the business by givin|ir n»any bribes ; and Mr.
Fowke said to liim, Tell me what you have
giveu to the different people : Comaul O Deeo
answered, That he had not given any thing to
'any body. Comaul O Deen came to me ano-
ther day, and said. That Mr. Fowke had called
on him that day, and told him, to tell truly
what he had [^iven to the gentlemen, and what
to the matsuddies ; it' he did not, it would not
be well for him, and he should be punished. So
much 1 remember.

You say, the dispute between C. O Deen
and G. G. Sing vi as settled by you : how much
did you settle to be paid on balancing the ac-
counts ?• - 1 ordered 10,000 rupees.

How much was demanded by Comatil O
Deen P— '26,000 rupees.

After having ordered 10,000 rupees, how
was the remainder settled ? — Comaul O Deen
made a claim of 26,000 rupees : G. G. Sing
aaid, That amount was due from C. O Deen,
on account of revenues ; and that C. O Deen
had no claim upon him : I told C. O Deen
what claims were made on each other: C. O
Deen said, he should be ruiued ; many de-
mands were making on him on account of
tecka collaries ; if he could get 10,000 ru-
pees, his character would be safe : 1 then said
to G. G. Sing, You are two frieuiis ; this is a
bad time to breed quarrels : a man of reputa-
tion will now-a-(Jays rather suffer a small loss
than enter into quarrels ; it is become uccl's-
sary to pay Comaul O Deen 10,000 rupees:
Gunga Govin Sing said, It is very well, tiie !
iO,(X)0 rupees shall he paid hini, and the 16,000
rupees shall he carried to account of revenues : ]
do you teli him tliat I uill (rive him 10,000 ru- |
pees : 1 then told Comaul O Deen ; and he
agreed.

Do you know whether the 10,000 rupees
were paid, or not? — Yes; 1 paid them.

Do you know if the 16.000 rupees were car-
ried to account of the revenues? — I did not
see the books : if they were not carried to ac-
count of revenues, why should C. O Deen be
silent?

How long have you known Comaul O
Deen?— I have known him 20 years; he is
my friend ; and 1 believe him to l>e an honest
man, and to be trusted upon oath : if a Mussul-
man takes an oath, he must be beli*'ved : if he
swears iaisely, he must be ruined here and
hereafter, and will certaioly go to hell.

Do you believe that Comaul O Deen would
iwear ten times to a falsity ?- No. 1 believe

in my own mind, that » Mussnlman who un-
derstands the Koran will not take a false oath.

Did yon ever bear of a HittniliiiaD taking a
false oath? — I say, lluit a MuaauUnaB who is
acquainted with the Koran w9l not; ollicn
may.

Do you think that Comanl O Deeo will not
swear falsely, merely fnim his kuowledge sf
the Koran r— 1 suppose he will not oo that
account ; but he is my friend, aod I know bioi
to be an honest man : 1 lielieYe be woald ast
speak falsely in common coavefaation ; I al-
ways found him to speak the truth » when att
on oath.

Moonshy Sudder O Deen crosa-ezamiDcd.

Did Comaul O Deen tell ^eu that Mr.
Fowke lifted up any thing besides a book 7—
No.

Did he tell you any thing about a |nIIow?—
No.

Why did you tell Gunga Govin Sing ibat it
was necessary to give Comaul O Deeu 16,000
rupees ?- --Because they are both my fntak,
aod I wished to settle the dispute.

Are you in any employment?— I have as
settled wages ; but 1 stay about Mr. Barwdl^:
Mr. Graham recommeuded roe to him vbm
he went away.

What wages did you receive from Mr. Gn*
ham ?— When at Burdwan, Air. Graham gait
100 rupees per month. ADer that, I bad as
settled wages : he gave me what he pleased.

How long did you stay at Burdwan T — Absil
three years.

How long, in the whole, did you live wilk
Mr. Graham ?— £ight years.

Second Day.
The Governor General sworn.

Did you ever receive fionr* Comaul O Decs
the sum of 15,000 rupees, directly or indirect-
ly !' — 1 never did receive that sum, or a pro-
mise of it, nor any other sum, directly or in-
directly. 1 do not believe 1 ever saw^CoansI
O Deen till he came to make his complaint:
he might have altendeil in the course of baii-
ness ; but i did not recollect his fa<:e.

Did you ever tell Mr. Fowke, that he mij^
get rid of his scruples, if he meant to be sentii
— Never, in the sense which I understand Mr.
Fowke has given to them. 1 knew Mr. Fovkt
to be a man of great singularity : I might ban
said, I cannot serve you unless j^ou part with
this singularity. 1 might, out of ddicscyi
have said, You must part with scruples ; htf
that I ever meant or said any thing abich
could imply such a meanings that he must part
with his integrity, his virtue, or his boooor, I
most solenmly deny. 1 have never betrait^
such a hcentiousness of sentiment, even to iff
most intimate friends ; and 1 was not on leflsi
of confidence with I^fr. Fowke at the tine ii
which this conversation is said to have bshbI

Did you not promise that you noukl icni

1901] for a Compiraey agni/iit Richard BanoeUf esq. A. D. 1775*

riSQg

hit, Fowke?— -] did; and I servod him. I
belief e it was owio^ to my not having served
liim to the extent ul' his wishes, eten to the

gratification of his private resentments, that he
as heen so inveterate in his enmity tu me.

Do yon remember the time the complaint
was made to you by Comaul ODeen ?— In the
month of December.

What was the complaint ? — That Mr. Fowke
had heen very urgent with him to declare, that
be had given brit^ to the English gentlemen,
and to the mutsuddies. The complaint was
made to me verbally. 1 desired to have it in
writing.

What more passed ?— I have said, that 1
desired him to deliver his complaint in writing.
I am not certain whether he brought it to me
that day or not : it was short, and 1 did not
think it sufficient for a complaint. I told him.
That, if he wished I should take public notice
of what he complained, his paper should con-
tain the whole of his iujuriet. Mr. Vansittart
waa there, and said the same words, or to that
effect. Comaul O Deen took my Moonshy ;
they sat down, and drew out his complaint.
Be laid it before tiie board.

Did Comaul O Dcen ever make any other
complaint to vou?-- He complained tome in
Jlpril last He came to me one morning in
great agony, and the collar of his jaiiimu was
fom : he complained that Mr. Fowke had com-
pelled him to sii;u an arzee, misrepresenting
the contents of the former.

Do you remt-iuber any particular conversa-
tion between 5Ir. IV-irivell and Mr. Fowke, at
the time of the examination at the chief jus-
tice's ?— Some words of heat passed, resppct-
ing the furd. Mr. Fowke addressed Mr. Bar-
well with much vehemence both in counte-
nance and expression; and said,^* Mr. Bar-
well, will you declare on your honour and
your oath, that you never received the 45,000
rupees?'* They were mentioned so pointed,
that I believe them to be the very words : I
will not say positively tlity are the exact words.
llr. Barwell replied, lie could declare, u|>on
bis honour and his oath, that he never had.
There were many more words passed.

Are you acquainted with Comaul O Deen ?
— -I know him only from circumstiinces hy
which 1 am nearly affected. I have heard no-
tbiog particular of his character. The cause
of his coming to Calcutta was to answer to a
ooniplaint made by sir Edward Hughes, for
want of provisions to supply his ships at In-
gella. I desired the chief of the Committee of
Revenue to send, for him : I do not know whe-
ther he appeared.

Did you say these words to Comaul O
Deen, ** They are three gentlemen, lam but
two"? — I do not recollect. I believe I did not
make nse of these words, because I did not
think h'.s complaint a matter cognizable hy the
aouocil.

Were ever the contents of the furd men-
tioned in council, or any where else, that they
eame fl^m Mr. Fowke P—>1 believe, from no

VOL. XX.

other than Comaul O Deen. or from those 1
understood he had spoke to of it.

Had }ou ever any conversation with Comaul

0 Deen? — I conversed with Comaul O Deen
on the day in which I sent him to the Chief
Justice. On the close of the examination, the
judges delivered it as their opinion, That there
were grounds for a prosecution. He was al-
lowed till the Monday to declare whether ho
would prosecute or not. I saw Comaul O Deea
on the Saturday and Sunday: on Satuntay I
examine<l him, and cross- examined him, anil
put questions, to sift the truth ; and warned
him as to the consequences of a false com-
plaint, of the certaint^r of detection, and itt
effects ; which I told him would be infamy to
him, and injury to me. He persisteil in it re-
peatedly, with circumstances which, to my
judgment, convinced me there were grounds for
a prosecution. I had the precaution to ask the
Judges, J think the Chief Justice, Mr. Hyde,
andMr. Justice Chambers, Whether I might,
with propriety, see and question Comaul O
Deen.^ To which they replied. That I might;

1 accordingly saw Comaul O Deen on the
Saturday and Sunday.

Did yoii interrogate him thus from any
distrust }ou had of his character, or from any
doubt of his complaint?— Neither from any
distrust in the character of the man, or cir-
cumstances in the story ; but from this prin-
ciple, that I would rather ha^c submitted to tho
injury, if 1 had not had the strongest groundi
for my own conviction.

Had Mr. Fowke any employment imder go«
vernment?— No.

Hi»w long have you known Mr. Fowke?—
I have seen him some years.

Did you know him on the coast?— I did
not know him on the coast. I do not know his
character : I might have heard of him ; but
nothing that made any impression upon my
memory. What I know of him, I know since.

Did you ever know him guilty of any dis-
honest or dii»honourable act? — It is a difficult
question. I will n(»t pretend to say that I
know him guilty of either: unless I could
prove such acts, 1 should not care to mention
them in a court of justice. He has had dis-
putes, and those disputes have lieen referred to
me ; but people that dispute, are apt to place
dishonest motives to those with whom they
dispute. I always considered him of a violent
and morose temper; and, white under that
iutluence, too apt to insinuate actions in which,
he is concerned to base and bad motives in
others. I do not recollect any dishonest or
dishonourable acts ; but he is violent to the last
degree. The disputes were personal quarrels ;
I believe never determined. 1 acted as a me-
diator, never as a judge.

Mr. Barwefl sworn.

Do you know Moooahy Sudder O Deen? —
I do.

Do Yon remember any conversation that
passed between you OAd him ? — Yes. He gave

4U

1503]

IS GEORGE m.

Trial of Joseph Fov-it ani othtM.

[\Wk

\

I

tnailF liii cimplKint uf «ioleiice by Mr. Fowke
and AUlia Rajah NDn<tocua»r, vliich 1 unikr-
Xooil irai the making him prefer a com-
plaint, in wliich ibe |{OTernor geueral and my
name irere menlioned, thai papers Ijad been
tkken from liiin, nbich he desired lo be return-
ed, I'rom which ruin would be Ibe cunseqiience
of their being del ire red in to the bflarri. I
wu, at the period ortlme Cnmaiil (> Dfen first
went (o c'lmpialii, at my gardens. Mcmnsliy
Snditer O Deen did not inenltuo lo me aoy
■nms : the Srst I heard of it was when I at-
tended the jnil^, on a lummons. The manner
In which tlie complaitit wdi mentioned wea
general.

Do you remember what passed heli
and Mr. Ponke, at the examination, oeiure
the judges r — As soon as Mr. Fowke made
hii appearance before the judges, he dedaimi^d
a good deal on the goodness of his character,
lorij: established; thai, on the ehar((e of such
■ man as Coinaul O Ueen, who, lie Eaid, wib
the scum of the earth, and deserTsd no credit,
his character should atand superior. In the
course of this decUroation, there were many
contradictions. 1 was of opinion at that lime,
and am at present, Mr. Fonke professed much
candour. In pronf of this candour, I caw (wo
papers produced, which had hern delivered in
»» the Toluntary act of a man who had posi-
tively declared they were the papers he askeil
back ; that ihey were false, aud must not be
delivered In lo tbe gorernor geoeral and coun-
cil. In the course of the (leclamHtton, Mr.
Fowke further said. That he prided himself in
tbe couduct be had laken up ; end that it
■hoiild be his pari to bring every rillaiu, roifue,
or rascal, or words to that effect, to justice. I
did not expert that he would lake upon him,
before the tiibunal uf the justices, to judge of
the conduct of myself, lie applied directly
to me, and said, '■ Sir, can you, upon your
honour and your uath, declare that you never
reeeired 45,000 rupeea from Cumaul U Deen V
I was so much hurt by this, aud contras a liule
IrHtated, that 1 interrupted Mr. Fowke, and de-
nied the receipt of the money in the talemo
manner he bad caDeit u|K)n uie, There was
more altercation between us ; but he, at last,
leemeH aatislieil with my reply : he expressed
himself to that effect. This eilrsordinary call,
nl the perifltl it was applied, had such on efl'ect
upon my mind, that I iteclared publicly and po-
sitively, before many other gentlemen con-
eemeil, thai I would prosecute Mr. Fowke.
On this, some remark was made on liio tin.

^ictireiiesa uf the assurance, and the

of such a pii{>er as the f-ird absolulf ly discll
Cd. As I was only offended at tbe <|ueBiion
which had been put to pie, and which seemed
lo coolirm the evidence of Coinaul O Deen in
eo strong a manner, 1 was rendered wavering
by the assurance of Blr. Fonke, imajjiping
there might possibly be aome mistake, and it
mij^t bfl « moju uUtiily wgvs-tu by a block

that Cematil O Deen i tessed, at the close of the evening, that 1 would

neigh all ilieae cireunislanct^ in mv minil)
that a public assurttnce I'rom Mr. Fowke QiKhl
satisfy me ; and it was not my hitentioa lo have
proseculnl Ibat (fnillcman. I neillter triud
bail, nor wai boinid orer to prosecute. Ikt,
contidrring sll circomstaoc«s, cimsidering ibit
Mr. Fuwke was under prosecution, h might
possibly be imputed to other inatiTes, if I M
not gi*e him an opportunity of •oquHliug him-
self lo the pobtic ; iotluenced by theae rvuest,
I directed my counsel lu priMecute, and left Ac
iiroof to the evidence there misht be pitNltind
before the court. Yet, though I htt*e duns

was j this, I cannot end without remarking, thalwtt
I out consistent with the good of soctdy, eribs

you profession of candour and atieation lo the vd-
~~ fare of the community, ibat ■ pntate gtHk-
man, nnl iiosaessed of any public Iruti, sbvaM
declare that he has, and proposes to hriil, n
office for the iutestigBlittg and rednnnng nf
Krievaucea; and, whaleter may be IhedMa-
inlnaliou of the jury touching tim innoceDCs rf
Mr. Foiikerespeclmgthefunl, I flatter mysdf,
some effictual means will be taken by thnn.K
pot a stop to all offices of inquisition but oUl
the law autliorizes.

Did you, or did you not, crer receive Ibi
45,000 rupei-s, or any part of it? — I did am
recrive the money, or any part of it ; nor nc
banefited hy auy donation from Coniaol 0

Do you recollect any thing iKiit pastti!, it
spcctinir a book which Mr. Fowke liti. J i];i i"
strike CNmiaul (I Deen?— What I r. p:..i!"1 .i
the evidence given on the first day bi-lKTr lli
judges, and of Mr. Fowke' s speech : n n.Miir-
chired on the complailiaDt's aide, Tii n I't ■■
fusing lo ouiheDticale the furd prufiriK, t'.> i-i
best of my reeotlectiin, Blc, Fowkt -y-.r.ic
him, end Med up this book, puttiui; iKii-i't j
aposturclostriheComanlO Deen. .'Mi i >-
on the other side, said. The loaii ».l^ ^•
and troublesome; that he made sur:- -
•entations about the papers whidi li.i<! ,'
hvered in to the gntcrnnraud cnurici! , .j' i >i'
Fuwke. not being satisfied with hii n il...i ii:i-
tinnt, retained llie papers, and ordir.,! i.^m i;

So about his business; that Com.nil U \!f-.-
id this in great distress ; sud snon a'.:-, r. i-. I
understood, returued with Mr. Prsi^- [- l<<>>kr.
to ■laina respileuf aday ort»o fot iIk rii/n'T
of the papers. Tbe diaturhance tiiai n-.-ni i..
tbe street, 1 believtr, is publicly kiiu»ii tu ci«.i
inhabitant in the town : it was, of consequeac.
a declared une of the tpiirehensinn the bi>i
was in for the deliiory of those paprrs ; whit*
howeirr were, in despite, delivered in to ibi
publio Imard ; as to our, it veeius of ■ ualuic
that I think might be in some degrecadmittf ' \
that his character bad been scandalised by tbti
man, and this he thought a prn)>er mode ts ts*
Biore it. \'our lordship anil ibe jury wUI jodp
liow justifiable these means were, in mliiag
that the free-will of a man, wbidi b< Banting
deslweit wa* agaiiwt ii, ^

Wkeoi

tb] /or a Conifiraes against Richard Bar^tll, esq. A.. D. 1T75. \\^^

he cilled Die ; when 1 weni in, Mnba Rnjah
desired rae to sit near bilu ; he gaie me a pieca
of paper, and bid me write uul a I'uul draught

Crott-JEramiiii

What da yoa undentsud to be tlie ciom of
Wr. Fowlte's linini; up the book ? — I onder-
nood Mr. Povke's reaaou for VitXiag up the
%Mk WAS ta Ket rid of ■ idbd Ihat ivaa trouble-
Mme. Mr. Fuwke did confess, (bal Mr. Fran-
cis Piiwke died him for a rcapile from preient-
jnetbe papers.

nid you ever hear of ihe ford fiom snj' olher
pertoabetidciCutnaulO Dceni" — locicr heard
vi tiie furd but I'rDio Coinsul O Deeu atid such
U he bad lold it to. The stroDg pretanptian
I bad at first to believe the eniiUencB uf the furd
wtA from tlie iiucsiian put to me by Mr. Fonbe,
Mid bis public declaration respect lug' the powers
he proposed to execute in the invesligatioD of

Q. b>i tke Jury. Did Mr. Fowke deny the
exiMeni;? of tha ford before he put the question
U yoD, and betbreyou declared you cuutd oat
proaecule him, or after? — A. I do nut recollect
UiU Kir. Fowke before denied the existence of

•Md I would prosecute him ; it was uot denied
Iwlbre (bo quesliou was asked me ; that wu in
the morning, the other in the al'iernoon.
Mr. Elliot sworn.

I>o you remember any particular convena-
tion between Mr. Harwell and Fowke at the
chief justice'!?-- -Yet; Mr. Barwell Epeaking
to Mr. Fowke respecting his coiuluci in this
affair : Mr. Fowke asked him, with a degree
of passion. If he could give him hi» honour
mad his oath, that he Had not receitei) the
45,000 rupees f Mr. Barwell answered. That
be could give him hin honour and oalh, he had
not : on wbioh Mr. Fowke then said, He must
■oquit him ; as he always himself took ihti
netbod uf wipio^ away accuBStioos brought
^^nst bUD ; and be thought that every gen-
l^naa should do the laroe.

Do yuu tetoemher any thing particular that
jiuted respecting Mr. Fowke's lifting up abook
M strike Comaul O Uceu ? — Some questions
being put to Comaul O Deen by oue of the
judges, I do not recollect which, wilh a view
In ■sceclsio the liu;t of Mr. Fowke's having
lifted up a great huok ; Mr. Fowke said, He
would save ihem Ibal truuble, by informing
ihem, that (be book he lifted up was a volume
of Cburchill's Voyages ; that he did it because
Coroant O Deen was troublesome, look bold <if
bis leg<, and demanded back the urzee which
be h*d before given.

Keaidemaaaj sworn.

Were you ever with Comanl 0 Deeo at Mr.
Fawfce'abDutef-— I was.

Did you ever write ait arzee by the direction
•fHaba Rajah.'— Yes.

Relate the circu instances. — One day Comaul

. O D««o look me 10 Maba Rajah's house: he

went aod sat down with Maha Rajah; 1 staid

VilbsiiU ■l»uitHoortlufieguru»iiliui*v4i

of at

write out a draught :

fair draught, I gave it Id Maba Rajah ; Muh»
Kajoh gave it to Doman Siug, and hid hint
write it over again ; 1 did not know his name
then : Duman Sing wrote it, and gave it to <
MahaRgjah; Maba Rajah then s.iid to me.
Do you write a fair copy of iti Comaul O
Deen, addretujng the Maha Rsjah, said. That
he had a tiain in hia helly, and desired to gn
home ; lliat he left me to write wlialever the
Maha Kalah might order, and bad me slay,
saying. Do you, hafii^ wrote the fair copy of
the draught, follow me: he then went aivay :
I staid there one half par of ihe night; when I
bad u iiile a fair copy of the arzee, I gave it to
Blaha Rajah : Maba Rajah teud it ; and when
be Itad BO done, he said it was well, and bid
Var Maliomcdgowilbmelii Comaul O Deen:
Yar Uihnnwil bdiJ I came away from Maba
Rqsli's together, and weut lo Comaul O
Deen's; Yar Mahomed sal near Comaul O
Deeu, and said, Haba R^sh had sent bim ;
do yun put jour «eal to this arzee : Comaul O
Deen then look the arzee, and read it ; and
said. There was no agreement between the
Maba Rajah and him, that Ite should seal il ;
he said, ile never would seal it ; that he caused
il lo be written only for ibe Blaba Rajah's plea-
sure ; and if heTealler be sbonid be called upon,
he could not prove it : Comaul 0 Deeu said.
How can I seal it? Yar Mahomed then said^

gave Yar Mahomed his hooka lo ;moke ; bo
soon after went away ; and when be had got
on the stair-case, I aba went away : Comani
U Deen, when Yar Mibomed was eoin^ away,
asked me, Wbaldo you ibink would havebeen
the consequence had 1 put my Eeal as (labs
Rajah desired ; I answered, It would be very
had ; whalsrer you do, look to the conse-
quences.

U'ere you at Mr. Fowke's wilh Comaut O
Deeo, the day the disputes happened? — I was.

Relate them, — Comaal U Deeu went vf
•lairs 1 I staid lielow ; about two or three (jor-
ries after, at first Mr. Fuwke, then Maha Ra-
jah, ml al^er Caiuaul O Deen, came down;
Mr. Fuwke bad got into his palanquin. Malta
Rajab was gslling ia, when Comaul O Deeu
up lo bim, and said. Get me back ibni*

g-entlemeu ; 1 cannot bv any means provo
them ; this wilt be very bad btiib for you and
me ; but mure so for me, both my honour and
fortune ivill be affected ; for God's sake, get
me Ihem again ; and begged by (be Duuy of
llie Company and the conned for them agato :
I saw Uiis ; when Maha Kajsh gate bim no
aniwer, he then cried out again Duov, and atr
tempted to get iaio his palanquin : Yar Maho-

1207]

ISGEOIIGE III.

Tna! rfjtiirph pMfke and cthrrt.

[lad

I

I

e dilFnfjBfrpd liimnelf, tnd gM
. din : nbrn he htil goi DUI of the
l*ne which leaits rrom Mr. Koi>Iif'» hnnie mi
to Ibe irtMl roid. n tiifCHrrah vime up to liini,
•o4m1iI, WbtTe Rre yuii j^oiii);? vnii inii«t
(um b4ck ; Hr Powke sntt Ulalia Knjah call
you; hiving iliteiif!Bceil himself t'lom llie hir-
Mrrah, he Hrni ii> the gutcnior'a : i slaiil be
lov ; CuniBut t> liiita weal up to acquaint

Whose seiTBtils nerc Yir Mihomc'l an-l
Ncllon Siui;?— I now Lrar tliey >re AIuIib
Kiiiah'a.

Dill ynii kunir whose hirearr*h it wan that
Mine uptoC. O Deen?— Idiil nnl kuowtli«n;
1 since liear he was Malia R»jah*«.
ifu»rin J//i*worn.

Whoteserranl are ynu ? — Comaiit O Deeo's.

What is joiir eiujiloymotl ? — I am his coii'
■unia ; all Hie expeucefl or hit houie and liia
Wardrobes are under niy rhnrge.

Have yuii the cirttoify al Itia seal ?— Yes.

Can it be U'^eil withnat your knowlrdice .*—
When he Koeg to Datlier, he takei ihetmill
■eol upon his (in^er ; when it ia in my pos-
Hniflii, he caiinot uie it willioui my |intiiy j
it ia slwaya in my possenion but u hen he i;oes

Wear on hia finKerP— It is.

Do ynn know Var Mahomed f— Ye*.

Wlio<e Mrmut it be ?— I hear, Malia
Rajah's.

Did yoii erer lee him at Cotnaul O Deen's
house? — Yea; that night hebniughiilie paper

Gife an accnunl what passed. — As he and
Kewdernawaz were goiu^ up slaiis, Kewiler-
cawai said lu me, Brin^ the ainu dwuii and the
bui, in which (he teal ia, |)erhapii ih<^r« will be a
paper tl>^ be sealed. I went and urol the siua
4miil,Rn<l the box with the aeal, and gaveihem
to Butioo, and inid him lu stand with ihem on
the stair-case; Iluttno ia Cuniaul (> Deeu'x
cook: 1 then weiit to where C. O Deen nas
Bitting, and Halked up and duwn the Teraods:
1 did bot hear what conrersalion passed between
Cnmaul O Deeo and Ynr Mahomed. C. O
Ueen me him his hooka to smoke, and h hen
he liBiTilone, heweninway; 1 followed : Hut-
loo llien naidiome. Do yon want the aiuadwuit
•nd (he seal i I said, the busjoeas for which it
waa Kanled perhaps will not be done; I look
the siuH riwbit and the box away, and pot them
in tlieir jvoper place, in the Juaba connah : I
■hen went to my own apartment,

Do yon know Mr. Fo«k«f— Yea.

Were you tter wiili Comaitl O Deen at Mr.
Fowke'B houte F — I was, alioiit two or three
days alUr Ihia.

8talewhalpHSseil.--WhatpaKa«laulofdc)on
I know : Mr. puwke fir^t csme oul, then Malia
RHjoh, and then Coiiiaul O Dten : Comaul O
Dein KBid 10 »aha Uajah, Tlie t'alie burraraut,
viifclj ^ou liarcowsed me to ffrile S];tuui lite

gentlemen, I cannot prore: thia will be very
had lor me ; L'ive me the papen hack : whe-
ther Malia Rujah |{are him any answer or i»«^
I did nut hear : Comaul <> Dees then wr« d"
collar Af hii jummub, and began Ij _ '
Duiiy upon the king, the company, aiid 11
court ; lie went lo i;et into hia palaiiqiiin, ■
Yer Uabumed and Ileitn 8>i>l' lai<l hold off
hands: hedi-engnged himieJI'frnn^ ttirin,a
crying Out Diioy, (pit Into hit palanmiin. a
weninwny; when llie palanquin had COtj
of the lane n|Kin the gp«tii riad, lliere were 1
hirtarrahs, one laid bold of tl>» palanqniii j
fore, and the olher was Iwhinit : '
time at a distance, nnd did not tiifa

la cuiclierry.
ju/Oi)trii again called.

..Whei

I, this is

^-kedir

Did Mr. Fowke *ay any tiling lo ]raa d
dny abiiiit hribes * — Nnl that Jhv - we I '
I he I'uid, biittaid niilhing^Dboiii Dribeabi
fli'w ill a passion, afler 1 sealed the nrtM,4
was down on the grifunii.

Did Mr. F<mke e.er direct vna U
thiii^' purlicolar upon the faru f-'-tle irid aol
If II me whjt irarticiilarwoida to write: I wi*
' Kussan ueedum' and ■ Dndum.'

Didyoii

-Yes, ""

What did you see?- — I waa golntr on It*
mad near the Bitah Connah of Rsjah It*y-
hitltuh: I saw Cnniaul O Deen in his (nilanijuiB
wilh the collar of his jamiiiali torn; uhifcarTtb
from Miind ciilli>d uiil, Cnniaiil O U> en. imp
yuur piilani|uin. C. O Deen did not miiil him,
and went on. Tlie hirearrah rati up, -.-rit hclil
of his palanquin, nulled it, anil said, Whne
are yon going P Maha Rijiih calls vmi, ini
Saulieiills y<iU. The palanqitin stoii't"-!), anJ
CoMiuMi U Dreo cnlhd uiil, Dnoy upon itja
king, llie company, the audalet, and thr (^o-
•emor ; and taid, Tliey have tniiiied nir br
force 10 write out a paper, and now hsie ntit s
hircarrali, and are luakinij; dispulea : hafiaf
ilisengagrd from tbe bircarrab, be went es.
This ia all I saw.

Muthurtr Mahomed ty am.

Do you know Comaul O UeDnT— .Vet.

Doyuu know Mr. Fo-ke.''

Do you ki

Did you ii<
One day I saw hint there.

How luog since f--It may be twa, W
quarters, or two hiitf mouths ago.

Itelaie whai paised wlieu ynu saw raifusl
O Deen come out of Mr. Fowke't h-mo^--
Mr. Fowke nine ihU lint, ikcBlUlnfi^'ik

KOO] far a Conspiracif againH Richard Barmlly esq. A. D. 1775.

[l«lfl

and Comaiil O Deen. Comaul O Deen said
to Maha Rajab, Gi? e me back again the false
papers which you have caused me by t'orce^ to
write : I hate gif en no one any money ; give
me back the papers: he then called out, Duoy
upon the king, the council, and the company,
and tore the collar of his jammah : he got into
bis palanquin ; and when he bad got upon the
^^at road, a hircarrab, or hircarrahs, ran up,
aftd laid hold of his palanquin, and said, Maha
Rajah calls you, and Mr. Fuwke calls you,
turnback. They disputed for some time; Co-
Manl ODeen then went away to the governor;
and 1 came by the council- house to my own
bouse.

CroU' Examination,

Whose servant are you ? — I am the servant
of Tyzulla Salem, his vakeel.

How came you to go to Mr. Fowke's house ?
—-There is a durbar there; every body goes
lb«'re.

' Did any body order you to go there ?— Mjr
jMirticulnr business was, to go there to see if
aoy complaints were lodged aifainst my master.

Were you up stairs?— No; I was at the
€iiter gate.

Di«| \ ou not usually go up stairs to the dur-
bar ?--*]f 1 had heard of any complaints, I
flboold have gone up : 1 had heard there was to
be a complaint made against my master by one
Permany, and I went thi-re ; but upon enquiry,
1 tbtind that the complaint was not there ; 1
therefore went auay : nhen I had business, I
eaed to go up stairs; nhen I only wanted to
nake an enquiry', 1 staid below.

Colonel I'hornton sworn.

- Were you formerly acquainted with Maha
Raiah Nundocomar? — I have seen him.

Were you one of his bail ?«— I was.

Were you one of those gentlemen who
Ibrnaed the processional visit to Maha Rajah
NuDdocomar ? — 1 visited him ; J went in my
ebaitp, but not in procession.

Who went with you ?— General Clavering,
B^Uwiel Monnon, Mr. FoMrke, Mr. Addison;
and I believe captain Webber, but 1 do not
porfeetly remember.

Do you remember the day on which this
risit was paid ? — I do not recollect ; I think it
mmm the day after, or two days after, the exami-
DaticNi before the judges.

Was the visit made before you gave bail, or
afler ? — 1 cannot recollect.

At the time of the visit, was you acquainted
ivith the examination ? — Yes.

Upcm what occasion was this visit made? — I
Dont'esa that I thought the accusstion against
Maha Rajah unjust, and that he was very
anach injured, from what Mr. Fowke told me ;
Uierelbre I paid him a visit.

Do yoa visit every man you think unjustly
aeeiised ?— -No.

I>id yoa ever visit Maha Rajah Nundocomar
ibcforaf— Yes; and bare received viiiu from

Did you ever visit him in company before f
—No. »

Do yon think that bis being looked n|>on at
an injured man, was the general reason for the
visit? — I do not know; 1 only aoswer tor
myself.

Were you present at the examination at the
Chief Justice's? — 1 was some part of the time;
I went upon what 1 heard from others, not be-
lieving the existence of the paper.

Were an V of the other gentlemen present?
—Captain Webber was present at limes ; none'
of the other gentlemen who were on the visit
there.

Did you ever bear the gentlemen at any
time declare their reason for makiig this visit f
— No, never.

What passed between Nundocomar and the
gentlemen during the visit? -Nothing butsa-
UUDS and the common ceremonies. *

Cross-ExaminutioH,

How long have you known Mr. Fowke?— I
have known him 14 or 15 years, three ol which
he has been in India ; my acquaintance with
him preceded his coming out.

Do yop believe him to be an honest man f—
I do, from my soul, believe him to be an ho-
nest man, of strict honour, and 1 think iuca-
paMe of telling a lie on an^ occasion ; 1 never
heard any thing against him, but a great deal
to his honour.

Fer Court. Did you never hear, before or
after the vibit, any reason given by general Cla-
vering ? — 1 did not.

Did you ever hear that general Clavering
paid any other visit, before or since, to Maha
Rajah iNuodocomar. — 1 think not; I do not
know.

Capt. James Webber sworn.

Are yon acquainted with Maha Rajah Nun-
docomar? — f am.

How long have you been acquainted ? — Since
my arrival.

Were you bail for him ? — I was.

Did you ever vi^it him ?-— But once; about
three mootlis a^o, as the general's aid de camp,
and attended him, as my duty.

Who were of the parly ? — The general, cot.
Monson, Mr. Francis, colonel Thornton, Mr*
Fowke, Mr. Addison, and myself. The general
called on me at my house, in his carriage : it
was but an hour or two before that 1 was given
to understand the general meant to pay the
visit.

Did you ever hear the general, before or
since, give any reason for making the visit ?— t
do not recollect that I ever did.

Do you remember the day on which this
vibii was paid?---l can't recollect whether it
was the day after the examination, or vi bether
it was bef«>re or after I gave bail. .1 think I
recollect it was after the first examination.

Do vou recollect what passed at the visit f—
No. 1 believe Mr. Fowke might iuterpret Ib6
common complimenta.

ISl I] 15 GEORGE Ut. Trial ofJmpk FiMkt (uul oikeri^ [UU

Did you not tUiak the ? iiit aa eztnuirdioary
one ?— No, I (Tid not.

Did yott ever kaow thew tpenfleMMi fty
Maba R^ijab a visit before ?— I do nol know if
they bad been tbere before. It is ny dut¥ to
go on visits witb the genera] ; I generally do.

Did you know tbe character of Maba Rajab
Nundocomar ? — 1 bad beard a bad character of
him; but I thought people prejudiced. I
heard Mr. Fowke speak well of him.

Did you ever know general Glavering pay
Tisits to other black men f — I never knew ge*
Deral Clavering visit any black Doan, except
him and Mahomed Reza Cawn.

What do yon believe was tlie reason for this
Tisit?— I believe they visited Maba Ra^ab
Nundocomar, because he had been formerly
minister of this country.

Do you believe they had, or had not, other
motives f

[The above question repeated.] — I believe
they had.

Mr. Francii Fonke sworn.

Did you ever see your father lift up a book
to Comaul O Deen ? — I did.

Where was it? — In my father's bed-chamber.

Were you in your father's bedchamber before
Comaul O Deen? or was he there first? — 1
was there first.

Which of you went out first? — Comau(0
Deen did.

Upon what occasion did your father lift op
tbe book to Comaul O Deen?— Comaul O
Deen came to my father's bed-chamber: I
think the words that he said were, <* 1 will
write it over again." When he came into the
room, 1 observed the end of his jammah over
his neckf and his hands in a supplicating pos-
ture. He advanced, repeating, 1 believe, the
same words. My father was sitting on the
bed : Comaul O Deen threw himself at his
feet, and attempted to take hold of his legs.
My father threw himself back, or rather ob-
liquely, on the bed ; and his legs, I believe,
passed through Comaul O Deeu's arms. I
am not perfectly clear whether my father bad
the book in his hand or not: I rather think it
was lying on tlie bed. My father immediately
lifted up the book, and poremptorily order^
Comaul O Deen to leave the room. Comaul

0 Deen immediately did leave it.

While Comaul O Deen was on the ground,
was any paper produced to him by your fatlier ?
— Not that 1 saw.

Ifheliad produced any paper, should you
not have seen it?— I think 1 should.

Did you see your father and Comaul O Deen
the whole time? — 1 did.

Were you near to them ? — T was.

Did you hear your father ask any questions
while Comaul O Deen was on the ground ? —

1 did not.

If he had, should you have heard him ?«-l
think 1 should.
Have you beard aQ that Comaul O Dceo

baa said, resfediog the ford, while he wu m
the ground ? — ^Tbere was do lord produced.

Who did yea hter first mcntien itf— I
never heard of it till ibe day of the emai-
natioD ; 1 tbeg heard of it fiirat frooa Consil
ODeen.

Had Comaul O Deea aaade aoy neiss ir
clamour in your fiUher'a honaa raapediaf sa
anee ? — He had.

Did he seal any arsee in yoar fttber'a ho«i
that day f-^He did, in my vritiag-rooiB.

Who was ia tlftereum at the tioie year ftlbtr
lifted up ihe book ?— Bade Cbnra, aad ae ste
evoept myself.

You have said that Comaul O Deen saM
an arzee in vour writing- room : were tbcKisy
threats made use of, to Irighten hha, io ofdcrit
force him to seal it? — No.

Did be ask to have that arsee back agaia?—
He wanted to have it ehaoged, and to hsvc it
wrote over again.

Did be give any reason why he waatsA to
have it cnaaged, and wrata oiver agaia?—
There was an expression in the hegioaiof sfik
[*< ershaud miahawud"] which he objeeliil^
and wished to have it wrote over again. Jhm
words moan, in English, ** It ia ordered, w n*
quired."

What did he say respecting these werdi.^
Looking at the words, he aaid, Wlio onksM
requires ? This does not respect tbe araae sal*
ed in my room.

What arzee did be seal in yomr roan?— Bs
sealed a small arzee, which he aaid vssthl
real arzee he delivered to the governor. Bi
did not seal tbe great arzee in mj nom ff^
sence.)

Did be bring the fang arzee nmiy seaMto
your father'* house?--! cannot answer ^
tively to this: 1 rather think that I reodktf
the mark of tbe seal upon the large arzee.

Let us know all that you know respecttf
the sealing and signing of aoy papers at joor
father's house, the day be Kfted up tbe boskti
Comaul O Deen. — Comaul O Deen eanc a
raiv fallier's bouse in tbe morning of tlic M
of April. In my father's bed-chamber, be K<
koowledged his seal afiixed to tbe large ariH
before two witnesses, who attested the ackoo«-
ledgment to iL lomy writing- room, be sftx-
ed his seal to the small arzee. No. 2. Thes
were present, myself, Roy Rada Churo, nj
Moonshy, Geercustullab, and the two Polls*
guese writers who attested the long ante.
He sealed the arzee in presence of these twfi
and also acknowledged tlie aeal, which tbrj
attested. My father ordered these two antf^
and the translations of them, to be mads sfi
and directed to the governor general wm
council. Comaul O Deen objected to tkdr
being laid before the governor and cooadl;
and desired that the two other anees, rcbtfl
to Gunga Covin Sing, might fiiat be aaal iito
council. My father did not conaeot lothii'
Comaul O Deen urged him for soma time: m'
afterwards made tbe ol^iectiun beforarotaliig^
to that cxpresaioD ia the loag anee. 0

I

is 13] f&ra C<m$pin«y vgaaut Ri<Aard Bimoell, aq. A. D. 1775*

[ISI4

•fked my fatlwr, When be slioakl be called be-
fore the couDcil? and asked, Who bad ordered
or required ? who he should my ? My father
answered him, by asking, Who be would sav P
Comaol O Deen's reply, I think, implied that
he would make use of the general's name.
My father asked him, Whether the geaeral, or
he (Mr. Fowke) in the general's name, had or-
dered or required him f He said. They had not ;
but urged the distress he should be under, it'
that question should be put to him in oounciL
I believe he repeatedly urged it. My father
did not alter his intention of sending the papers
into council. Comaul O Deeo soon afier left
the room : Rada Ctium want out likewise ; 1
du not remember whether inuaediately, or
■ome lime after. Rada Chura soon after re-
tnrned into the room, and said, That Comaul
O Deen was crying, and tearing his jammah,
hecause the arzees were to be sent into council
that day. Comaul O Deen, soon after this,
came to the door of my father's bed-chamber,
and then that passed which 1 hare before re-
lated.

You hare told us that Comaul O Deen left
th€ room before you did ; did you see him
when you went out ? — Yes, 1 saw him in the
hall.

What passed between C. O Deen and you
then ?•— He begged of me to intercede with my
fkther that the papers might not be sent in that
flay, repeating the difficulty he should be ex*
poaed to from that exoression; and laying,
That he would bring his Aloooshy tlie next
day, and write it over again. I returned to
my father, and urged him to comply with Co-
maul O Deen*s request, which for a long time
he refused : he did at last, rery reluctantly,
comply* 1 went to the Portuguese writer,
took the corer from him, as it was folded, and
carried it into my writing- room, where I lock-
It np. 1 do not know whether 1 told C. O
Hern that 1 had got the papers, or whether he
•aw them in my hand ; but be met me at the
door of my writing-room, and thanked me, in
very warm terms, for having brought back the
arscea. He itooped down, and touched my
feet: be said. He would bring his Moonshy
with him fery early the next morning, to write
It onew. He asked me. If he should go in,
Bod lake leave of my father. I told him, not
lo ffo ; that my father paid no great attention
lo tbuse ceremonies. It was near one o'clock ;
I was goiiig out to dinner. Myself, Rada
Chttra, and Comaul O Deen, went down stairs
logeClier : when 1 got into my palanquin, Co-
maul O Deen came to the duor of it, and again
f^peated his acknowledgments of gratitude.

Did any other circumstance past, on the
IBiht respecting tlie arzees? — There was ano-
ther circumsianoe, 1 did not mention, relaiing
Id the arsees. In the long arzee it was writ-
ten, that the caom of Barnassy Ghosevnd Co-
QMUil O Deeo was referred to my father for
leciaioo : I tohl Comaul O Deen, that the ex-
ptcasioo WM wrbo^ ; that it was referred for
•pqoiry only, in which be acquieieed. About

the time the small arzee was sealed, with his
aequiasocnce, I scratched out, in my writing-
room, the word in Persian which signifies * da-
ciaian ;' and Comaul O Deen, in the presence
of the two Portuguese writers who hail attested
the long arzee, wrote w itii his own hand the
Persian word signifying * inquiry.'

Did you ever hear Comaul O Deen declare
that day, that the long arzee uas false f— I did
not.

At any other time, did you ever hear him
declare it, at your father's house f — No, never.

Is there any other nuterial oircumstanoe
rekting to the arsees P — W hen Comaul O Deen
WM going to write the word, he asked R<iy
Rada Churn how to spell it ; Rada Chum told
him the letters ; he desired hiui however lo
write it down on separate paper, that he might
copy it. He did so ; and, when he had written
it, the ink had not marked well, owing to some
pounce ; and Roy Rada Churn asked him if
hashould make it plaiu: C. O Deen gave biih
leave, and be made it plainer.

Crofi- Examinaium.

At what time in the morning, of the 18tll^
did Comaul O Deen come to your father'a
house f-— About nine or ten o'clock in the
morning.

Did you see him come into the bouse P— Jl
cannot say that 1 saw him come in.

In what ^Mrt of the houte did you first see
him ?— 1 think I first saw him in the hall.

Had you been out of doors, or did«yeu come
out of your own room P— -I believe 1 had eoi
been out of the house, and might have been ia
my own room P

How long did he stay in the hall P- -I really
cannot say.

Did von stay with him all the time he was in
tbehallP— 1 cannot recollect.

When did he come into your writing* room P
—After the attestation of the long arzee ; he
then came into my room, and sealed the little
one.

Where did he acknowledge the seal to the
long arsee ? — In my ftither's bed-chamber ?

Were you there at the time ?— I waa.

Whether did Comaul O Deen or you go first
into your father's bed-chamber at that time P-*
1 do not recollect.

What time had you the long arzee in yoor
hands P— -On the 16th, two days before.

Who shewed you it ?— -Rada Churn.

Was it then sealed P— I cannot positively de-
clare it was then ; but, I think, I have a recol-
lection that it was sealed.

Was it in your father's house that Rada
Chum shewed it to you P— Yes.

Do you know what Rada Churn did with it,
afler he had shewn it to you ? — He left it with
me. 1 translated it : I began to translate it on
the 16th ; and had not quite finished it that day.

Aft«r trauslating it, what did you do with it?
— 1 kept the original.

How long did you keep itP— 1 btlieve l4iad
it in my possetsten till the 18tb.

1219J

15 GEOftOfe IIL Trita t^fjfmjk fVurfe mAjMim^ [IJM

vilio would not stick tt aoy thing to ean7 any
poiut ke roiglit have at heart : from thenoe we
went and ih! down with R<*jah Nundocomar;
and I had soon an opportunity of leeing that
Rajah Nunducoinar did not, thuu^ 1 had in-
trvduceil him, consider me as his friend ; for
Mr.. Addison, who had in the kileriro entered
into conversation wiih him, informed the gene-
ral, that he only wi^-hed to make his salam
then, and would wait upon him on business
aootlier time : 1 understood what Muha Rajah
meant rery well ; and what passed that nay
«vas nothing t>ut general conrersation. The
next time 1 waited upon Mr. Hastings, I made
more fMrticnlar enouiry respecting his wishes
of having Rajah Nuodocomar introduced to
the general ; and I then found, that the story
of lUda f/huru was a fiction ; and that I hsid
mil been desired by the governor to intcodvoe
Raimh Nuodocomar to the general.

Did you ever introduce any other black man
to the general ?— >! am not sure whether 1 in-
trodocM Rajah Rajebullub to the general, by
desire of the governor ; 1 now recollect that
the goremor had first.

Did you consider this as an introduction
from the governor general ?— I did not consider
it as an introduction from the governor general,
but by his permission.

Mr. "Ellioi recollects, that it was not the same
morning in which be saw R^ah Nundocomar
at the governor's that he introduced him to the
general.

Greneral Clavering sworn.

A little time afler my arrival, Mr. Elliot
came to me, to propose himself to be my inter-
preter. I ac<|uainted him, That 1 understood
there was an interpreter on the establishment,
frho was then with the army, and 1 had heard
a very good character of him, and therefore I
did nut chuse to make any disposition of it at
that time, but would wait till the interpreter re-
turned to Calcutta. Mr. Klliot understood it
aa explained by me, and was pleased to offer
me his services, till such time as my interpreter
arrived. From that time I am nut conscious
that I received any Persian letter, or petition,
that 1 did not put into his hands. In the mean
time, divinions in the council had broke out.
Mr. Kiliot, 1 understood, had been admitted a
private secretary to tlie governor. About a
month after his tendering bis services, !^lr.
Kiliot came to me, and acquainted mr, that he
understood, that the interpreter to the com-
mander in chief had been recommended by the
governor to the lute commander ; but, on my
making 8oinc diiiiculty to accept an interpreter
tbat might have been recommended by the ijo-
ternor lo the hite commamler, Mr. Elliot
ppened himself further to me, and told me,
lu a very honouiable manner, that 1 must be
•ensible, from his close coiincction with the
governor general, how unpleasant a tbin«>- it
would be to him, to accept of such a trust from
Bie.

[i>Ir. Elliot here wishes that the general

would recollect, whether the ocnaioa of lUi
eooTersatiou, was not a letter iccaTod frooi tW
king at Delhi.]

Mr. Elliot, faowerer, atill offered to tiandMt
such papera as might be nent to me. 1 aoeon^
ingly did send them, 1 Miere« «ll to bis.
A&ut the middle of Janoary, I Was Mnohed
in mv palanquin by a DnmbtT of petilionai^
who bad neariy OYerKt it ; they were the n^
lungies of the 24 pergonmho. 1 w&tmi ajf
polanqain to be set down,- and took tlieir pfO-
tion from them : 1 read it, io my way to ihi
council-bouse; and seeing in it wliai I thaaafcl
sonUe Ycry gross abose of posrer, and thai m
several petitions which I bad before laid bcfise
the council, which had been presented ia tie
streets to me, had had no effect in itdiiwiiy
their grievances, I reoolfed to inquire into ihH
myself, as well as I oookl. I therelbre HU
my servant to go to the salt coBtrsctoHa Imk^
and tell him to be with me at ray idaiB
from eonncil. The manner in which tkecM*
tractor explained hinoelf to me, rendered has-
cessary that I sbonld hare an inter pietai. Hi
man teazed me with evasiona aM contiafc"
tions; and having frequently told liia dot
there was now a court of justice estabKsbsd ii
Calcutta, where snch grierances woaldle»
dressed, I thought he would do better to fr-
nish me with means of redreoaing then, If
mrocnring them their foil weight and iWI fhy.
1 then sent for Mr. Fowke, who, 1 helieve,l^
fore that time, had not been above three «r ta
times in my house, nor had onoe dined
me since my arrival. I refaieJ the eony
to him, as a person of whose hoooor and ■
rity I had the highest opinion ; morefroa|^
neral report which hb re potation bore h S^
land, than from any personal acquaintance on
him here. He was acquainted with the hi"
guage in which this complaint was to be en*
mined, and, as 1 imagined, with the massfli
and customs of the country. The coatraclBr,
fearing that Mr. Fowke'a report to me woSH
not be so favourable to his cause as he wiiM
went to complain to the governor geiirrsl;
when, on the following day, 1 presented ibi

fietition to the council, I found the gnvrra«
lad been apprized of the reference made m
Mr. Fowke ; and reproached me warmly, fv
taking up a business in which he was so I'mew-
diately concerned. I, at first, did not vsdff^
stand his allusion. He told me, '* Yon bb'
kno^v that captain Weller was connected ^
me.'* J told hiin, that f had been int'irelj si-
inforined of it, till Mr. Fowke had acqusialrf
me with it, upon the examination of ihe wff-
lungies. Tlie g-overnor, on tbat, said ntfv
things aprainst Mr. Fowke ; and, as 1 ssn m
occasion why Mr. Fowke should havecoDceil*
ed that circumstance from me, I refmd 1*
comply with his request of not imstini^ svf
more petitions to Mr. Fowke. Some tJ**
after this, came the petition of Bamaasy GteVi
which 1 likewise referreil to Mr. Fowke. iA>*
having previously sent to Comaui O Diti*
This reference produced another cotaptiiil ^

^PPHJ Jot ■ Cmufirae^ agaiiui likharil

VMgonimor g«Dci*l tuiiiut Mr. Fotrkelihc
arsee], mjueitiDf R^tiu ihit I fvould williilraw
my coafijvuve rrom lUr. Tanki; W, ■llvati,
tliBl i woulit not iiilTFr Lim la examine )>irti-
<ii>M bill in roy (vncnce. i( llu* <nDi|il«inl
anil tbe jieliiioBit ivliivli xccom|i»ni«<l U were to
Wand iipoQ our coiuiiltuinni. il hu the 0|^''-
nwaaf lb* cuuncil, lliat iUr. t'owke Rliunlii t«
daircd lo come itiare biiuadl', to rxplun bi«
wbolv ooailucl. I Btaurcil ijie council, llial, if
Mr. Fowke had acted iinprDptrly iu llie bxmu-

i^^^vU If ilhiWw it. But Ibe Koreraor |[«ae-
^^UM cbooiinii ihut Mr. Fowke tbuuld oome
^Hb'to «i|ilain hii conduct, I bed no oilier
^^Eh lefl Iban lo exkininc bin myselr, b| biH
^Bm* I daairwl liiui to write a lelter la tbe
Moocil, and lo ifiTa tbem tbe wtnie ex|)lenBlieD
which bed Mlietieil ma; aoi) I tliink, but am
pal imeilire, llial I Iwik bia affidnrit to the irulb
of the ciiiileiile of ilje letUr : but, >■ I eiilt
lbmq;bl that ibe aakerlinua made by Comeul O
Deeu ihould not, fur Mr. Fonke'i liooour aad
IBine, etuid — 1 Jeeired Mr, Fowke In exaioine
liie owu trriaui«, wliu bill been present ■! Ibe
oxamiiutioii, and to feed ibfir depotitioiit iu to
ihecouiieil. Tbejier«<>iiilb«ni«eltr«bein(raxe-
tnined, I was ot opinion tbil all tbe annranaeK of
Cwnaul O Deen were entirely Ulieand ground*
. Itnliena, my fanian inleriireier,
• la ma mau afier Ibiaj aud, Ifim tbat
■tw ibie (lay, 1 am not conteious tbat f erer
Mia politiou to Mr. Fowke. All \ny Per-
^•pen 1 bave re^ulnrly muI to Mr. Ro.
1 tbe Bni[li*b to Mr. EIUol. Bl(.
I, about tbe SUIh of December, ap-
kd MitcriiUeBiUui of the kbiiha recorcls,
Ctha iHKnUon of receifing all

UaraeU, e

A. D. 1775.

risrt

•iU>
loj'iDf Hr. Fowke. i

I receifing all palitieni.

Eitber iir. ElbM or Mr. lioUrU «ter
all pviiliniis aeni to nie. From
k IStk at N"veaiber, to tbe Wib of Dacein-
waa ibc outy lime in wliicb I eeul peliliona
Ir. Fo*kf.
_JUi regard to Haba Itajab Nunducomu', wba-
I Korited my opioJuu of biin from Mr,
jL w fpim ulber (uopie, il auDioelli Iu aay,
laaaaiikfed hiio ul' en iiitriKuinc (durac ■
' oerer. upon ajiy occasiun thai I know
lail biiB wilb ibe ainallest cuuSdciice.
leii Hocnied of fi>rgery wa» not
Idl late; I cannot tay eaaaly,
■ Ibe tStb of April. A« 1 underalood,
ly vMited (lie Kovemor (jreoeraJ, 1
_ a tlial, if lliere were any kind of
I. fur it, tbe cutunutanceii Inuit be
t biiBi M iliey bad alt been ia Ibe de-
of Auilautet, wliicb wu immB-

onri ul' AuiUelet a court of
RljuritdiL-iiuii^.-.it ia aot.
a ilw guteinur ci-iwral ul in ihatfleurl,
' ' .^1 do yot kmw Uial he

iiaotweradby IbtcouBM). Itiipol.]

Are Ibe prnceedioca in Ibe ordinary couiie of
buiineks Uid beliire bim ?— No, I do uol kuow
tbat ijiey ate.

How oonld ibere lip a charije of felony i» a
civil rourl? iir buw could ibe fOTernargeuernl
kliowit, if there wa«?---l douotknow; but I
bate teaeoii to ibink the ^rernor ceoer*) did
know it. In tbe mil* which Malia Itajatl
made In me, I look lor my inlerpreler the urat
)ierann wbo presented biinself In me ; but tl'
way* Mr, Robert*, if be ^as with luc : hi|
general conrenation was, tbe declared hatred
thai the gorernor had ibewn bim. He said,
" Uig cneipiei were admitted to the gateritor;
I am (old, Mohuii Pertaud ; but I donotBuevt
il a* s fact." My answer was, That no iaa»-
ecnt man need fear approKinii ; b'Jt would be
protected by Ibe Eugl'sb Uwa. I «nw the
Malia Rajah twice wlfli Mr. Fonke : once by
chance at Mr. Fowke'sbouae, where I cellnj
ill ; and at another time, by Ilia own aiipoiu^
meat, -at my own houie : Ibeae times Wfre
without my inlerpreler. At Mr. Fowke'i, m
mochae I remember, be was giiiniianaccouiil
of his long lerrices, ne minister ul lliin oouu;
iry i and I remember it elided wiib a tale,
which I underEliod ik in eonle of the PeraJtn
books ; Ibe purport of which was, " A numlwf
of people Baying the aame thing, ihaugb il be
001 true, i* U leaat believeil to be true." I
understood from lliia, be meant lo recommend
biuiielf to me- I remember now — it wa* 4
etory about a kid beiug *ai<i Iu be a dog ; ami
Ibat so many people aaid the kid was a dog,
lUul at liiat il wa* taken fur « dog. Tlie othei
couveraalion waa ia my own room ; and, e>
much 01 1 recollect to olTer Iu give me a mate
of the counlrv, o( Ibe miiiner in wbich the
KOiernroeol of it would be best ndminitlerej.
I beliere 1 desired bim lo draw up bis ibuutfbla
I paper, t/i ECt rid ut' the subject; and, iq
in«equenceol Ibi«, in alinut a week or tei)

dayii alletwenis, be did bring

1 ha

tbiobi ao

il to tbie day, nor du I kuow what I have done
with ii. Maba Rajah bad heard that col. Mon-
Min, Mr. Fowke, and my^rlf. had paid a *i«i$
|o Mahuined Rczji C«wo ) and lielieTe he bad,
aome bow or other, diwiivered tbat Mahomed
Ri'ia Cawa bad i^iten ai auoh a |>apvr of hi*
ideas of the goternmeoi of itiiecouuirf. Ma-
hotued ReZB Cawii's paper ] delireted into
eounnil. Ou or about tbe IDib of March, Maba
ftajsh eeiit a letinr lo the council ; in conee^
uueuce of which, ibe cuuniil gave directiunt If
their atturaey to cuonnH ihe coun^rl, wbelhcr
an action might ooi lie ogainet the goveritor
general ou account ul' tbe wvUer cnulaioed iu
that Idler. Ai 1" ihe vitit. Maba Itejah wa^
Bummotied about tbe IQib of Aprd ; aod I UDr
deretood, after hnvinc underijouea ttry lung
and exact acnitiny nf hi* coniluel, iliece wa*
oM found auBicirnl milter lo bold lu bail-

Q. bylht Court. Were you informnl lbk(
Um juilgra di-cUreil lliere wb* not lUlScient
matiff IU bold to b^il f—A- I »>).

Cliuf Jmtkt. You were much abuncd hA

15 GEORGE III. Trial qfJoieph Ftfit^ and oikers. [ IWk

Ghone'g complaint ? — I niiderttaiMl thtt Co-
maul O I>eeii bad let out portions ofsaltworb
of the tecka collariea to different people, aid
afterwards resumed them.

On what grounds did the governor t^enenl
found his complaint against Mr. Fowke?—
That he exceeded bis duty and trost.

Why was not Mr. Fowke ezaniincd bcfcrt
the council? — ^The majority of the eonncil
acquiesced with the governor general, tbltHr.
Fowke should not be examined.

In what manner did you employ hiB?—
Only to receive petitions through my haodi.

who gave voo the information of whit
passed at the chief justice's f—- Mr. Fovkr,
and from theoce 1 drew tbe inference.

You say, that if there bad been sniBcint
matter for a prosecution, and though the pft-
secntors did not desire it, you wouhl btn
obliged them to find baity or committed tbcoi
that night?— I would.

On what day did you pay tbe visit to Mib
Rajah P— -The day after tbe examioatioo.

In what light did yon consider tbe proMC^
tinn Against himP— J understood it as apn»-
cution to frustrate that ordered by the board.

Are not you first in eoundl, next to tbef^-
vemor general ? — 1 am.

In case of death, resignation* or reoMnl,
are you not to succeed him P— I am.

Wbnt roaj your salary be, aa second ii
council ?— -leo thousand pounds per year.

Don't you think that the governor gcoml
might be discharged, on complaints of pcwh
tion from hence to the court of diredois ?-4
think he might.

Do the letters from tbe council mentioB fM
the prosecution is ordered to be caxnii M^
against the governor general ?— 1 believe tb^
do.

is not this prosecution principally founded «
the evidence of Nundocomar and Roy Ridi
Clinrn? — No.

Did you never authorize Mr. Fowke to oftr
the Kttllaut of the Khalsa, or of Puniea, H
any hody ?---No, never.

lias not some of Maha Rajah's family bees
appointed to the first office under goveromcsl*
since the commencement of the prosecntiM?
— I cannot tell that any places have been giw
to Maha Rajah's family.

Were not every means taken to afford Nw-
docomar influence P---1 never did ; and shtsld
have l»een sorry to join in any act to give Nmh
docomar any influence whatsoever.

Don't you know that any one of Nundoc^
mar*8 family is provided for? — ] do notkao*
Maha Rajah's family or friends ; 1 do sM
know that any one has had preferment : Rijib
Goordasses ; I do not know it ; 1 have beat
told so.

Mr. Roberts examined.

What do you think was the general's opiM
of Nundocomar?-— 1 have always heard ge-
neral Claveriog say, that he tboogbt Mate
Rajah Nundocomar to be a very bosy,
blesome man.

1S2S]

imposed on. The chief justice declared that
night, that he did not think there was sufficient
matter to bold Mr. Francis Fowke to liail.

Will you inform the Court wlio told you so ?
— 1 think, Mr. Fowke told nie.

Did Mr. Fowke tell you, that the judges de-
clared him innocent?-- -I do not remember
that he did.

Did not Mr. Fowke acquaint you that he
was ordered to attend the Monday following ;
and that the parties were then to declare whe-
ther they would prosecute or not ?— I think he
did.

As a justice of the peace, would you, in a mis-
demeanor, bind over the person complained
affainst, if the opposite parties would not under-
take to prosecute ?-— I most certainly would.

To wnat purpose ?— I would do it.

Did not your aid de camp attend on the Mon-
day to be bail, with your knowledge for some
of the parties ? — He did.

Could ^ou then think that the iudges thought
the parties innocent P---I did, because the
judges suffered them to go without bail that
night.

That was by consent of the prosecutors. The
examination began early in tne morning, and
lasted till late at night. Would it not have
been severe, when the prosecutors did not desire
it, to oblige the persons accnsed to find bail that
night?-— I would have done it in a charge of
so high a nature ; though the prosecutor did
not fksire it, yet I think it should have been
done. 1 understood that there had not been
sufficient matter to hold parties to bail, and
consequently I was to understand it an unjust
accusation ; and a crime of so black a die, of
accusing Innocent people, and particularly such
persons as the ijovernor general and Mr. Bar-
well, that they would not nave been suffered to
go out without bail, had there been any reason
to suppose them guilty. J had reason to con-
sider this as nn attack made on Nundocomar,
who had produceil an accusation in council,
and to prevent his appearing as an evidence to
maintain his charge, it was on that ground,
considering hint as an innocent man, and the
victim of state policy, I went to see him : I
would have done the same thintlf to any other
man in the settlement. Mr. Fowke certainly
did acquaint me, that he was to appear before
yon on 3I(iuday ; but 1 did still imagine there
was no crround to suppose him guilty. I con-
ceived, that if you judged there was sufficient
matter for a prosecution, you woulil have taken
hail, without tbo consent of the parties ; and 1
conceiveil an idea that the prosecution was
done to frustrate the enquiry in council. Mr.
Fowke came to me in the month of April, and
told me Comaul O Dceu [Stopped.]

Cross- Examinu t ion .

Did you give Mr. Fouke any particular in-
structions ? — 1 gave him instructions to enquire
into the grourids of Darnassy Ghose*s com-
plaint, and report them to me.

Do you remember the substance of Bamassy

WKKS] TiiaU of It. Smith and T. B. Hollit, esqrs

Do ynu recollect llie snbject-maltFr of niiat
]iii<i5«l at llie ri«il paiil lo Malia Rajah ?■•-! itii
not Tpcollect any convercaiinn but such u
mhrht pasK in s Tisit of compliment.

0 by Mr. Jujf . Umaulre. Where ire the
four wrlien lliat were nt Mr. Pnwke's dial
murnlna P Where ii Acconr Itlunnuh, Mr.
Fowke's moooaby t Are ihey alive ?

[18SB

a llni ProsecutioD was u fiit*

FawKG, Guilli/.
-1, Guiltii.

" I Cuitly.

559. The Trials* on the Informations which in pursuance of an
Order of the House of Commons, were filed by his Majesty's
Attorney General t against Richard Smith and Thomas
Brand Hollis, esqrs. for having been Guilty of notorious
Bribery, and thereby procuring themselves to be elected and
returned Burgesses to serve in Parliament for the Borough of
Hindon. Tried by a Special Jury on Tuesday the 12th of
March, at the Assize holden at Salisbury fur the County of
Wilts: Before the Hon. Sir Beaumont Hotham, knt. one of
the Barons of his Majesty's Court of Exchequer; 16 George
III. A.D. 1776.

On JiTiiiary 31, 1775, a comraillee of the
Houm af Cumrnons was appointed oiideT Mr.
Grenrille's Act (we sl»t. 10 Geo. 3, c. 16, 11
Cea. 3, e. 13, and Pari. Hisi. toI. 16, pp. 003,
*( ttg. Tol. 17, i>. ]061.) 10 try the matter of a
Petition of James Calthorpe and Richard Bech-
ftnf, complaining of tbe retnrn of Kicharri
Nniilti anil Thomai Brand Hollis, as bure^sses
to«er*e in parliament for the bnrnugh nf Hin-
•(•wi. On February li, the chairman of the
Cammitiee inlnrmed the Houae that neither of
Ihe pen;>n«rrliirneil or of the peiUioners was
iliily elected to serve for the aaid borough, anil
be MJhe same lime arqnainled (he House,

■• That

1 the ci

ie of ihi

: iifibe peiilinn of Jnmea Calthorpe.
*9q. ami Richard Bcckford, esq. il haTine "p-
jwsred 10 tbe ommillei-, thai the most Haicrant
and notorious acts of bribery anil CDrropiion
had been pinictiieil; and thai a very coiisiilera-
liia majority of the electors of the boroucrh of
Hindon hail been bribed and corrupted, in a
very grogs and extraordinary manner i bd>I
ifial several others of the said electots had been
concerneil as at^nta lor that purpose; thecom-
tnillee, desirous tbal the House may adnpi stKb
measnrea as may disco iiraj^e, and, if possible,
put au end lo a practice so snbreniive of llie
freedom ol' eteclious, had directeil liim lo lay

■ Taken in Shori-hnnd by Joieph Giirni'y.
itfiife, Into this Rrjiiirl I have iiicorporatfil
frvni lh« Election Catea of Mr. Di>n|;l«s (lord
Glenbertie) such parltculnrs as I thought
IKonU render it latiifaclory.

t Mr. Thurlow.

befbre the Hoii«e, the nhole uf Ihe evidenee
^iven before the said commiltee. with ibeir opl>
uiniis thereupon ; and heread the report in bii
place, and afientards ilebiered it in at the table,
where the same was read ; and Ihe reaolutioBa
of ihe Commiilee are as rollowelh :

" ReMlTed, Thai it appears to Ibis commif-
lee, ihat Richard 8milh, esq. by his agent*,
has been guihy of nolorinua bribery, inendea-
vnurinf to procure bimselt' to be elected and
returned a bur^eu to serve in this preienl par-
liameot for Ihe borough of Htndou, in (he
county of Wills."

Tbe like reEoluliOD respecling Mr. Hollis.

" Resntved, That il appears to thii commit-
tee, ihat James CaUhorjie, esq. by his agentt,
has been cfdly of notorious bribery, in endea-
vouring to procure himself to he elected and
relumed a bnrg««!i to aerve In this present |iar-
liameni for Ihe sRid borough of Hindoo.

" Resolfed, That it appear* lo this cotnmil-
tee, thai Richard Beckliird, esq, ha*, by bis
agent, endeavoured by promise of money, to
procure himwif fi elected, and returned a
burgess, to serve in (his present parliameot for
tbe ssid borough of Hindon.

" ResnWed, That it appear* to this cnra-
initlee, tbal tbe rev. John Nairn, of Hindoo,
Kasham Niirn, enj. lale of Bury-streel, St.
Jamei's, Francis Wanl.ofSherbiinc-lane, Lon-
don. ~— .Slevens, a butcher, at Salisbury,
cnmnmnly enlled Jobber Sletens, &c. (in all,
iliiriren, specIHed by name) have ai;ted u
agenis, and have been necessary lo, and con-
ceroed in, Uie oQlOTtutu uAs «S\itfKx^ wd&
'■'4. •

1£27] 1« GEORGE IIL TriaU nfR. Smith and T. B. HcOih Ofn* [ISB

corraptioD, tbat have bora praotisml at the last
election for the said boroujjh of Hindoo.

** Resolved, that it is the opinion of this
aommittee, tbat the House be moved, for leave
to brings in a Bill, to disfranchise the said
borough of Hindoo, in the county of Wilts."

On the 8th of May ful lowing:, the House or-
dered that the Attorney General should furtb-
with prosecute the said Kichanl Smith, Thomas
Brand HoUis, James Calthorpe, and Richard
Beck ford, for their said offences.

In Trinity term 15 Geor^re 3, the Attorney
General filed the following Information against
general Smith.*
•• Wiltshire,

" Be it remembered, That Edwrard Tharlow,
esquire, Attorney General of our present sove-
reign lord the king, who for our said lord the
king in this behalf prosecuteth, in his proper
• ptrsoD, eometb here into the court of our said
lord the kinir« before the king himself, at West-
luinsler, on Friday next after the morrow of the
Holy Trinity, in this same term, and for our
■aid lord the king, gives the court here to un-
derstand and be informed, that the borough of
Hindou in the county of Wills is an ancient
borough, and for a long apace of time tiro bur-
gesses of the said borough have been elected
and sent, and have used and beeu accustomed
and of riffht ought to be elected and sent, to
•erva as burgesses for the said borough in the
pariiament ok' this kingdom (to wit) at the bo*
lough of Hindoo aforenid, in the said county
of Wilts : and the said Attome^r General of our
aaid lord the king, for our said kM-d the king,

S'veth the court here to understand and be io-
rmcd, that ob the first day of October, in the
14th year of the reign of our present sovereign
lord GeoTj^ the 3il, by the grace of God, of
Great Britain, Frsnce, and Ireland, king, de-
fender of the faith, &c a certain writ of our
■aid lord the king, under the great seal of Great
Britain, issued out of his majesty's court of
Chancery (the said court then and still being at
Westminster in the county of Middlesex) di-
rected to the sheriff of the county of Wills; by
which said writ, our said lord the king, recit-
ing, that whereas by the advice and assent of
bis majest} *s council, for certain arduous and
urgent ntfairs concerning his said majesty, the
state and ilefence of his kingdom of Great Bri-
tain and the church, his majesty ordered a cer-
tain parliament to lie holdenat the city of
Westminster, on the :29th day of November
then next ensuing, and there to treat and have
conference with the prelates, ereat men, and
peers of his realm ; his majesty by his said
writ did command and strictly enjoin the said
sheriff, that proclamation being made of the

* He WAS a li^eneral ofiicer in the £ast In- !
dies. Durioflf several years he was a member of \
the House of Commons and a frequent speaker j
there. He was particularlv acti«-e upon mat-
ten relating to ibe East 'ludiea, u lo wbicb,
aaa ibe New Pul Uistary.

day and plaea aforeaaM in the aakl ■kcrif'^i
then next conotv eourt to be holden aftsr tbe
receipt of tbat bis aaid ma^y'a writ, tvs
knights of the moat fit and disGreet «f tbe aii
county, girt with aworda, aud of every citj sf
bia said county two dtizeui, and ef evtry bo-
rough in the same county two boryreset, aflha
most sufficient and diacreet, ficvly aod miU^
fereiilly by those who at such prodaoutiai
should be present, aooordiog to tbe fonaof the
statute in that case made and provided, Ibe «ii
then slieriff should cause to be elected, aad Ibe
names of those kniufhts, dlizeDs, mod borgcsM^
ao to be elected, whether they sIhhiM be p^
sent or absent, tbe aaid then aheriff absaU
cause to be inserted in certain iadentorcs is bt
tberetipon made, between the aaid thco shadf
and those who should be preaent Bt ■neb ehe-
tioo, and them at the day and plaee ■fcifini
the said then sheriff shooM cause to es
such manner that the said knights for
selves and tbe oomooonalty of the aais
and the said cittzens and hirrgt ■oos fir
selves and tbe cemmonalty S[ the aaid din
and boroughs respectively, mi^t have fisn
them full and sufficient power to do ^ en-
sent to those things which th«n and ihoe ky
the oommoD couiwil of his aaid moiesty's kii|-
dom, by the blessing of God, shonld bapptaH
be ordained upon tbe aforeaaid aJEairs, so Ibn
for want of such power, or through an iHp»
vident election of tbe aaid knights, ciUMH^ •
burgeases, tbe aforeaaid affiurs might in Dt wm
remain unfinished; willing neverthdcai^ AM
neither the said then aberiff, nor any
sheriff of this his majesty's snid ki
should be in sny wise eicdeil ; and the
in the said then aberiff 's full coanty a.
diistinclly and openly under the aaid thcsibi-
riff 's seal, and the seals of those who abeay W
present at such election, the aaid then sbnif
should certify to his majesty io hia Chiarnj.
at the day and place without delay, rcfluuisi
to his majesty one part of the aforesaid iada-
tures annexed to the said writ, together wiib
tbe said writ ; and the said Attorney Genifal a'
our said lord the king, for our said lord tbekis|.
gives the court here further to understaarf 9tk
be informed, that the said writ alWwar^ wi
before the return thereof (to wit) (w the sa'
1st day of October in the 14th year iiv»
said, was delivered to Thomas Ktftooart, n^
then and continually from thenceforth nad Mf
at anil after the return of tbe said writ
sheriff f»f tbe said county of Wilis, to be
cuted in due form of law (to wit) at the
of ilindon aforesaid : and the said Ausiwy
General of our said lord the king, for our mf
lord the king, ^ives the court here I'urtber »
undersund and be informed, that by virtat^
tbe said writ, the said Thomas Estoourti*
being slieriff as aforesaid. aft«*rwarda, aarfb**
fore the return of tbe said writ, (that istsvf)
on the said 1st da\ of October, io the 14ih jr^f
aforesaid, and io the year of our Lord 1714'
Ibe boroutrh of Hmdoo aforeaaid, io ihf ■i'
ONiaty of Wilts, made hb pcooept ia viiMf'

»]

jfer Brihtfif at ikt tUrtdon ElecHoK,

A. D. 1776.

Cieso

•hM wilhthcvmlorhmDffieeorcbcnlfnrilie
•mJ wtmxy »!' Witu, airecWd to (lie than hailiriT
of the bomtnrli ot' Himlnn in th« nid cniiiuy of
Wilts, «f and Tor ihf cirction tvhhlo the laid
bomuj;li, of' two bnrKPas** of ihi> barfltii;li al'ur*-
Mid, according to Ike rurm nnd vKrfA iif the
mM writ ; koil (be cud Arinriie^ GvnerRl of
««ir Mill luTil (lie It'ncT. At our hIiI lord the
kiny, ^ives tire owirt here fiirlber to itmler-
■l«n<l nod he informed, th«l li_v lirtiie ot the
uiid |>rece{it ■llerwani*. and befora ilie return
rimvul' (lu »1|) on the imli day of ODIober, in
the t4il) y-mr atbreuid, at 'tbe Imroueh ol'
Htndnn otnreMi.l, in Hie taiil cniinry of Wilu,
the etrctioQ of Imi biirj^nfOB lo serre ni bur-
(««wt fnr Ihv uM borough, in the tlien next
parli*me»I to b« balden ns aforcMid, »■■ bid
wmA ande; which nid Hrctiun wav the fini
asdlimelealionnf burgBBiea toaerre m bor-
fMM* fbr ttir laid borooi^, m Ibe nartiaraenl
«fMl htncdMti, alter the ootAmillinir e( (he
M*«nl ofl^nres tRnbader Itrally, oecundly,
Mrdly, andfoarthlv ineirtkinod : atfllliBuid
4llmev Uenecat oi' our mrI lord the kkof, for
««r mill htrd the king. ei>e( the Canrt here r<ir-
Iber U> nndertl^ind and be hifbrmed, that before
Ike inmng i0t the »aid wrii, a general election
^fWprewMUiirca lo •er»e in parliameHt for (lie
•nvral eotinties, citiei, and Imroiiphit In Ihi*
ki(t|rd«m, heing expected, James CBliliorpr,
'■^uire, KichnnI Hethftird, etqiiire, Riulnrd
'~'iii1b,nauire, and Tiiomad Brand HuHin.nq.'
- > ~r eaodidate*, (ImI of them (»o ime^il be
ihfHeo and rMurned to teTTe a« burfesiics tbr
■fee Mid imrmig^h, in (be then nvxi |uir1iBtnetH
ftr Ihi* fcinploin i and ilie aniij Jurats CsU
IfcWff. Itichard Beekfor'l, Richard Snriib, and
Tbonm Brand H*Hiii, rcmnioeil and eantinned
frfidati > Inr the pnr|iM« ntvmuiid. uniil and
■triHlime »f Ilie tald eleclion, lo ini, at liia
knvoth or llindm afcrcnid, in the aaiii cmmiy
ffWills: and tbe laid Altomey LieDerat el'nur
■Bid InnI the king, fur snr Mi<i lunl (he king,
Crrpi the ranrt here funher to «n<lerMRiid and
h« mfbrmrd, that ibeaatd Kichard SniUi late
■f the luid bonnigh uT Hiodofl, in Ibe aaid
euatily of fVilU, e«<fuire, wcU kaotring the
(Remiaea, but beiita; > perann of n ilepraved,
VCTTupt, ami tricked mind and diipotilion, and
nnlawtidly and wickedly intending, ns mncb as
ia btm till- KNid Itiebard Smith Iny.to interrupt
and prrtcnt ibe li'ee »nA IndiflW-enl ekclion oi'
bnn^aei to wr*e for the avnic boroD|th of
Hindon, in Ibe Ihen next parliMneni of this
kingdom, and hy 'A\rgA\ and mnrapt meam to
Bmeiiro hliniieli in he elected a lniii;ew lo aerrc
br ifae mid ImroiiKli <n 'be iben next parliS'
ncBlof ihii kini;rio(ti, before ihe fmid election,
ID wli. on (be ISlb day of February,' in the
ISlttynrof the reiL'n of «iir aorereiirH lord
Gearf^ the 3il, anv kiii^ of Great Britain, Ace.
It the boraiiirb of Hindoo nforeaaid, m the aaid
mttrty of Wilo. unlatrfnlly, wickedly, nnd
Mmp1)y did tulicil. ur^e, and Mdratour to
•MTttrit TliHmaa Moore. Cbarle* Nmp«un,
}«*m B«1d»yB, Jnwviah tiieaa. Hobert Tyley,
Tbown Farrell, Jn. Nurloii, Joa. Ouff, Jgho

Bdwarda, Wlllisin Stepbeui, Joba UaisbiDml.
John l^rkbuin, Reoabler lluivleo, Jim. Cbolsey
the yaao)pr, Jolm Diria (lie eldar, Itivbard
F.ri»<>ad, Wilhura CbereiDJI, ttanuiel Uorr,
TkoniBi Ilardrii, Jinica Eilwardu, Jua. L'linl-
]iey lliealder, 'I'bomas Siirucer, Jaiura Smai't,
John lUndall, Gdwan] itaogar, Jubii Dewy,
Luke Benlwit, Pbihi> Beckeu, "Umiy Uukea,
Edward BeckatI, Isaac Moody, tVilliaui Hack-
er, J iihn Biab»|), t^lwinl Hullowday, G«ur^e
Spenfler the younj{rr, Juhn CbrrerHli, Juba
Diikei llw eider, Jubn Dukei llw younger,
Itolvrt Wyer, Moam tVrtks, George Uiikea,
(irorge llaywanl, Edwanl Trewlocki Unilbei*
Uaria. Pbilip BeckrU (he youag er, IJeiiry iet-
rei, John liaHa the you>i|;rr, WiUiam Day,
SaiDoH CotUer, Waller l>eri:y. Bdwanl Sb«i^
gold, Ue^jatnin BeekeU, Edward Wbil«, Jaba
Elanper the ebler, Sauiiwl Faribinif, Jolia
Bo<4>e*theyou«ger,WilIiBi)i Newtonlic eldan-f
William Newton tbe ytun^at, Jatnr* Percy,
\Tj Uiille (lia elder, H«ury UulTe Uia

ihe younger. WiUiun l^mbe, Jua. Lanibe,
tilwanl While, Itolwrl Wyer, MatlbewWbita
the yuuuger, Maitbew Hieveiia, Williani tVbile,
Richard Incmrn, Frnoria tUi^er, WUIiaoi
PertV. filiaa PiMwn, Willii.ni Cuff ibe ekier.
Mallifw H bite the (Uer, WiHiain Slevcu,
Ueorije Kleecus, John liirccni Uie elder, Jamea
Metcaa, Jolm Sleti'iii lb« yautttitl, Jobn
WyfT, Ueajatniii Cliolaey tbe vlder, William
Kuiger, FfWULi* Cbetcrall, Cbarits Wyer,
Jaaiea Wyer. JoIhi White, William Wyer,
Jamflt Aoderaon the elder, John UociMIl, Tbn-
iMU Wyer, Luke HerJi.-u (be aiibr, Kugec
HipendpT, Robert Utiy, William CtilT ibe y«un«-
rr, J£liBa Mteevena, Jaaiea timix'ai, William
Gdliun, Henry IJiTa^e. Jartii GiUtert, Tlia>
MM IVi-oy, John Haager, fiilaard Peicy, \\H-
lism Percy Ihv younger, RuUn Gilbcit. H'ij.
ham Dukes, Thoiaaa Dukr«, Aoxcr NurKin,
Jaarph Moody, Jamm Gilbert, John Umoe,
Lxikc Usid, Nathaniel PbilifW, Josefib Nurlua,
Haniuel Nurloa, Jiiba Rituoiw, TIioimm
HroukH, (ianiiiel Philitia, Jotcph tioamell, Wii'
liam iiaDdall lb« ddrr, Lube SLtubhTaeuI llw
vounKiT, Luke Msiabmnit llic elder, Jubn
Manbicirwl, WilUim Saudall the yuun^r,
Jame* Burleigh, Williun Harden, Naniuel
Field, John Uralta, Robert Hanger. 'I'buiuaa
lAnhain, John Riebardna, WilhamSiieiidi^r,
Ueiiry (Ibuumr, John Penuy, Riob^ird iWiMi,
WillianiNiabetk,Jaine>>UavieK,Jcwr|d.tblb*rt,
Jamea Ooueii, Jamei Wicr, John GiUhti, and
Jubn Siemens, reJ^ieMprely, each and enery of
ihem, Iben aiid Ibere, and until and at tlic Uinu
of the aaid election, haiinii a lijjbl to *ale U
and in the clcclioo of burgwae), U lerTe ai
burgeHeit for tbe aanie bumuiih.in Lbe ftarii*-
meni uC ihia kniKdinK, (in- bin lli«BaHl Richard
Niidlli, and (he niure diMliially to wuipl, corr
rapt, M il iimcara the uid aricral ficniwii who
had a n)[ht tn rate ■■ afueaakl, la give their ra>
»l>rcli>e iuta« lor bim llw aaid RicbanI Siaiib
iu (be aaid dcciiuo, be ilis ctid Uidtftrd liaiilk

1831]

16 GEORGE m. Triali ofjt. Smith and T. B. HolIU, «jm.

[W«l

Jill Iheo and there, to wit, on the aaid 151h
jay ot February, io Ihu 13lh je«r aroresBid, at
llie iNirougb ol llinilon aruresaiil, in the eui)
cnunl^ ot' Wilts, unlawfully, wickedly, and
coiTuptly Kite, and cause and procurt: to be
IfiTeo, to llie aaid seTenil |iecsoos reapeclifely,
tvho.lMtl auch a ri(;ht to file as aforesaid, a
certain euid of money, to wit, tlie inni uf liTe

Kiineu of lawful muncy of Great Brilaio, ai a
ibe and reward, tn eiigSKe, corrupt, and pro-
cure tlie mid leferal persons respeciirely, so
having such right to vote as afort-iaid, to (rive
iheir respective voleain the said election of bur-
gesses to Mrve as biir|[eaipeii fur the aaid borou^li
in the then next psrliameot of iliis kiogilom,
for him (be said llichard 8iDitb, in ordw that
be Ibe i>aid Richard Hniilli might be elected
and relumed, to serve as a burgess for the laid
borough, in the then aaid next parliament of this
kloKdom, to the great obatruclJOD and hin-
drance of a free, indifferent, and nobissied
election of burgessea to serve to parliaaieot I'ttt
(be aame borough, in inaoifest tiiilatiun and
aabversion of the constilulion ot iliis kingdom,
and of the liberties and privileges of the sub-
jects thereof, to tlie evil and pernicinus example
of all others in Ibe like case offending, and
•gainst the peace ut'our said lord the king, his
vrown and dignity: and the said Attorney-Gene-
ral of unrtaid lord the king, for our said lord
the king, giveth the court liere further to un-
derstand and be informed, that the said Richard
■Smith, beinssuch person ai aforesaid, and un-
lawfully and wickedly int<;nding (as much a* in
liim the said Richard Smith lay) to interrupt
and [irevent a free and indifferent election of
burgesses to serve for the said borough of Hin-
doo tn the then next parliament of this king-
dom, and by illegal and corrupt means to pro-
cure himself to be elected to serve ss burgesg
tor the said borough in the then next parlia-
ment of this kingdom, before Ibe said election,
(to wii) on the third day of Oetubcr, in the lltb
year aforesaid, at the borough of Hmdun afore-
said, in the said county of Wilts, unlavvfully,
wickedly, and corruptly, in the presence and
bearing of divers persons, who bad then and
there a right to vote in the election of burgesses
to serve for the said bornngh in the parlia-
ment of Ibis kingdom, did declare, and with a
loud voice publish, that he would give to each
and every person who bad a right to vole in the
•aid election of burgesses tn serve for the said
borough of Hindoi) in the then next parliament
of this kingdom, bribes and rewards to vote in
that electioD for him the said Ricbaril Smith,
nitl) intent unlawfully to tempt, corrupt, and
procure the persons having a right to vote in
that election, to give their votes in that elec-
tion, tor him the said Rivhard Smith, that
he the said Richard Smith might be elected
and returned a burgess lu aerve for the «aid
borough in the said thru next parliament of this
kingdom; to the great obstruction of a free,
quiet, and indifferent election of burgesses tn
nerve io parliament as burgeasea lor the same
iiontagh, io inuuiint violtuiou and subversion ol'

the constilulioD of this kingdom, and of tbe li-
berties and privileges nf the suUjt^ts Uiereof, W
the evil anil (leruicious example of all olhen
in ibe like iiasc offending, and against thep«
of our said lord the king, his crown aaddlni
and lite said Attorney Geoeral ufour lud iL
the king, tor our said lord the kiofCi 8^"*j|
court here further to understand andbeiB''
ed. that the said Richard Sniitli. ba
person as aforesaid, and aifain unl
wickeilly, and (wrru|>tly inlenditin (■■
in bim the said Richaril Smith lay)to inU
and prerenl the Iree and indifferrnt eteclN
burgesses to serve as bnrgewe* fur the si '
rough in the parliament of this kingdom, J
by illegal and corruptmrass to procuic
to be elected a burgess to serve an a Inu^
the said boroiigb in tlie parliament of IbM kf
dum, he (he said Iticliard Smith wHvr ~
and before the said elecliun so hat) kod n
albresaid, to wit. oD the^th day of April, ii
14th year of the rngn of our lord the Mf j
king, at the borough of Hindoo aforesaid, la
the said county of* WilU, unlawfully, wickadlf .
and <M)ii-uplly did give, sod cause and ptvcan
to be given, to divers other persuns, oanwlii,
Thomas Moore, Charles Simpsnu, Jobu B>M-
vrin, Jeremiah Luea§, Robert Tyler, TbMOU
Farrell, Joseph Norloo, Joseph Culf. John Ed-
wards, William Stevens, Jobu MaishfiHBi,
John Lirkham, Renalder Bon lea, Jo>i|>ii
Chulsey the younger, Joijn Davis (hs ehkr.
Richard Erwood, William Cliiverall, SatniKl
Daw, Thomas Harden, James Kdwanli, J^
seph Chatsey the younger, Thomas SpemO',
James Smart, John lUndle, Kilward KaBfftv,
John Dewey, Luke Deckel, Philip BecMt,
Henry Dukes, Edward lleckel, Isooo Moodjr,
William Hacker, Jubn Bishop, Edward U«l-
lowday, George Spencer the younger, Jahs
Cheverall, John Dukes ihe elder, JotiD Ooko
the younger, Robert Wyer, ftloan Weeb.
George Dukes, George Hayward, £d*ud
TrewTock, Matthew Davis, Philip Becket tlic
younger, Henry Jerret, John Davia the

Jounger, William Dsy, Samuel Collirr.
Valter Percy, Bdward Sheisolil, Itrojaisiu
Beckett, Eilward >\hile, Jubn llouprr itx
elder, Samuel Farthing, John Hooper ibi
younger, William Hooper the elder, U~il'
liara Newton the ynuoger, James Porti.
Henry Huff the elder, Henry lluff Ibi
younger, lienjamio ChoUey, the yatuf*'.
Joliu Bell, George Spender the elder. Jana
Anderson Ibe ynunger, William L*inbc, Jaot
Laml«, £dwBrd While, Robert Xtjet
hew White the younger, Malhew Si
William White. Richard Ingrain, rnw
Ranger, William Percy, Elias FitmaD, W
bam Uuff tlie elder, Matlietv White tbecldlti
William Steevens, George Steevcfis, Jika
Slceven<t the elder, James Steevens, JotuiSM^
verns Ihe elder, Jamea Sleeveaa, iofan B
veens Ibe younger, John Wyer, B<
Chulsey Ihe elder, William Ranger. 1
Chiverall, Charles Wyer, James Wyer
White, William Wyer, Junes / *

1853]

fifr Bribety at the Hindon EUctitm*

A. D. 1778.

ri2S4

elder, John Berkett, Tbomis Wyer, Luke
Beckett the elder, Aoger Speniler, Robert
Diy, IVilliem Cuff the yoonger, Elias Slee-
veoM, Janief Steevens, William Gilham, Henry
Sava^pe, Charles Gilbert, Tlioanaa Percy, Jolin
lUoger, Edirard Percy, William Percy the
younfter, Robert Gilbert, William Dukes, Tho-
mas Dukes, Roerr Norton. Jos. Moody, James
Oilberi, John Oane, Luke Mead, Nathhiiiel
Philips, Joseph Norton, Samuel Norton, John
Aaadaome, Thomas Brookes, Samuel Philips,
Joseph Scamell, William Sandall the elder,
Luke Maishiiient the youui^er, Luke Maish-
ment the elder, John Maishment, William Sen-
die, James Biirleisrh, William Harden, Samuel
Field, John Bowles, Roliert Ran^fer, Thomas
Lanham, John Rirhardaon, William S|iemler,
Henry Obourne, John Penny, Richard Pitt-
man, William Nisbenk, James D ivis, Joseph
Gilbert, James Gou^h, James Wire, John Gil-
bert, and Jotio Stevens, respectively, each and
erery of them then and there, and uutil
aod at the time of the said election havings a
riff ht to vote at and in the election of burg^ses
to ^en^ aa burgesses fur the said boniugb of
Hindon in the parlinment of thiskintrdom, ano-
ther iari^ sum of money (to ivit) the sum of
five guineas of like lawful money, as a brilie
•nd reuani to each of them fhe aaid several
persons last- mentioned having such right to
vote as aforesaid, to engage, corrupt, and pro-
cure the aaid fiersons res|ieclively to give their
reepective votes at and in the then next election
#f burgesses to serve as burgesses for the same
boronifh in the said then next parliament of
this kingdom, fur him the said Richard Smith,
in order that he the said Richard Smith mighi
b« elected a burgess to serve fur the said bo-
rough in the said then next parliament of this
kingdom, to the forest obstruction and bin-
drsnceof a free, quiet, indifferent, and unbiass-
ed election of burgesses to serve in parliament
•• burircMes for the same borough, in violation
and aubversiou of the constitution of this king-
dom, and of the liberties and privileges of the
tubjei^ thereof, to the evil and pernicious ex-
ami»le of all others in the like case offending,
•lid against the |)eace of our said lord the king,
bis crown and dignity : and the said Attorney
General of our said lord the king, for our said
lord the king, gives the court here further to
uaderstand and be informed, that the ^aid
Richard Smith, IkMng such person as aforesaid,
•nd again unlawfully, wicked lv« and corruptly
mtcnding (as much as in him the saifl RichanJ
fimith lay) to interrupt aud prevent the free
and indifferent election of burgesses to serve as
bvtfpessef for the same borough in the parlia-
■MBIof Ibis kingdom, and by illegal and cor-
nipt means to procure himself to be elected a
toi^gett to serve as a burgeiia for the said bo-
longh in parliament ; he the said Richard
8mih, before the said election, (to wit) on the
Ml day of October, in the fourteenth year
■Ibftaoid, at the borooffh of Hindoo aforesaid,
fa iba aaid county of Wilts, did unlawfully,
^iMaMjf aad aonaplly gife. aud cause and
VOL. XX

procnre to be given, to divers other personsi
namely, Josepli Norton, Jos. Cuffe, John F.d-
wards, labourer, William Steven*, John Alariih-
man, John Edwards, glazier, John liarkham,
Renalder Bowles, Joseph Cholsev the yonnif er,
John Davia the elder, Richard ferwcHid, Wil-
liam Chiverall, Samuel Daw, Thomas Harden,
James Edwards, Joseph Cholsey the elder,
Thomas Spencer, Henrv Obourne, John Pen-
ny, James Smart, John bundle, Edward Ran-
ger, Stephen Harding, John Dewey « William
Snook, Harry Jukes, Edward Reukeit, Richard
Pitman, Thdma«i Wter, Isaac Moody, Witliam
Hacker, John Bishop, Edward Halliday, Wal-
ter Beckett, George S|>ender the younger Jnhn
Chiverall, John Dukes the elder, John Dukee
the younger, Robert Wier, M(»ses Weeks,
George Dukes, Thomas Steevens, William
Spender, John Hart, George Hay ward, Ed-
ward Tulick. Mathew Davis, John Ingram the
younger, Philip Beckel the younger, Andrew
(''arrett, Henry Jerrard, William Brooke*,
John GiM>ert, John Steevens, Elias Steevens,
John Davis, Thomas Howell, William Day,
Walter Piercy, John Beckett, Edward Nher*
gold, Benjamin Berkett, Edward White, John
Hooper the elder, Samuel Fnrthini;, William
Newton, William Neshick. Joha Hooper the
younger, William Lucas, William Newton the
younger, Jamea Piercy, Wdliam Abraham,
Henry Huffe the elder, Henry Huffe the
younger, John Moore, Benjamin (/holsey the
younger, John Bell, George Spender, Jatiiet
Anderson, William Lainbe, Joseph Lamlie, Ed-
ward White, Robert Wyer, Mathew White the
younger, Mathew Stevens, William White,
Uichard Ingrain, Francis Ranger, Elia^ Pitt-
man, William Cuffe, Mathew White, William
Steevens, George Steevens, John Steevens the
elder, James Sieevens, John Sieevfus the
younger, John Wyer, Benjamin ChoUey the
elder, William llanger, Thomas Steevens,
Francis Chiverell, Charles Wier, John White,
William Wyer, James Anderson. John Beckett,
Thomas \Vier, Luke Beckett, Rf»ger Spender,
Robert Day, John Nairn, William Cuff, Elias
Steevens, .James Steevens, Isaac Savage, Wil-
liam Gilham, Archibald Hunter, Henry Sa*
vage, James Lambert, John Stee^'ens, James
Cuffe, Jprvoise Gilbert, Thomas Piercy, John
Ranger, Edward Piercy, Roliert Gilbert, Tho-
mas Lanham, Jos. Gilbert, John Richardson,
William D ikes, RichanI Smith, Henry Lam-
bert, James Warne, Thomas Dukes, Roger
Norton, Joseph >loody, James Davis, James
Gilbert, Thomas Philips, John Gme, Luke
Mesd, Nathaniel Philips, Joseph Norton, Sa-
muel Nui-ton, John Rdiidsome, Thomas
Brookes, Thomas Harden, John Harden, Sa-
muel Philips, Jos. Scaminell, William Sandle
the elder, Luke Marshman the younger, J imcs
Goffe, Luke Marshman the elder, Joim Marsh-
man, Richard Harden, William SnoHle the
younger, James Burleigh, William IlHrden,
Thomas Field, S:iinuel Field, Richard Bivki tt.
and Robert Ranger, respectively, each amt
every of tham then and there respectively bar*

1SS5] 16 GEORGE IIL TriaU ofR. Smith and T.B. Hottis, esqrs. [I8W

Weeks, Georife Dukei, George HaTward, E4-
iranl Treirlock, Mattheir Davis, Pbilip Beckett
Ibe yooDfrer, Henry Jerreti, Joho Davit Ike
jouDji^, William Day, Samuel Collier, Wal-
ler Pierc^, Edwaril Sbergold« Bci^ain
Beckett, Edward White, John Hooper iIk
eliler, Samuel Farlbing, J oho Hooper the
yoou^r, William Newtoo the eklcr, WiHiaa
Newton the younirer, James Piercy, lieary
Huffe the elder, Henry Huffe tke yooogcri
Benjamin Cholsey the yoiioger, John Bdl,
George Spender the elder, James AnderMe the
yonnger, William Larobe, Jos. Larobe, E^
ward White, Robert Wyer, Matthew Whytt
the yeunp^, Mattliew Steevens, Willjui
White, Richard Io(rram, Francis Raoeer, If i^
liam Percy, Elins Pitman, William Cuff tW
elder, Matthew Whyte the elder, WilliMi
Steevens, Geonfe Steevens, John Steevens Ihi
elder, James Steevens, John Steevens Ihi
younger, Ji>hn Wver, Benjamin Cholsey the
elder, VVilliam Ranger, Francis ChiferaH,
Charles Wver, James Wyer, John Whiles
William Wyer, James Anderson the cMiri
John Beckett, Thomas Wyer, Lake Berkett
the elder, Roger Spender,.' Robert Dsy, Wil-
liam CufT the younger, Elias Stevens, JsMf
Steevens, William Gilham, Henry Savafi^
Jarvis Gilbert, Thomas Percy, John Raiigtr,
Edward Percy, William Percy the youager,
Robert Gilbert, William Dukes, Tbom
Dukes, Roffer Norton, Josefdi Moody, Jaaci
Gilbert, John Gane, Luke Mead, Slatbaaid
Philiua, Joseph Norton, Samuel Norton, Jsha
Randsome, Thomas Brookes, Saomel FhiXif^
Joseph Scamel, William Sandall the eMv,
Luke Maishment the younger, Luke Blaiib>
ment the elder, John Maishmettt, WilliM
Sendle, James Burlei(rh, William Harden, Si-
muel Field, John Bowles, Robert Raocvff
Thomas Laiiham, John Richardson, W iiiiaia
S|jen«ler, Henry Obourne, John Penny, Ri-
chard Pitlman, William Nisbeck, James Da-
vis, JoHeph Gilbert, James Gough, Jaoci
Wire, John Gilbert, and John Steevens, rr-
8|)ectively, each and every uf lliem, iheoaiKl
there, and until and at the time of tbenhl
election so had and made as aforesaid, cUimiog
a ri^ht to vote in the election of burges»esio
serve for the said borough in the parliaroebt of
this kingdom, a large 8um of money, to sit,
the sum of five gfuineas, of like lawful monrfi
as a bribe and reward to engage, corrupt, iu
procure the said several persons so clainiia|r *
right to vote as aforesaid respectively, to gir*
their re8i>ective votes ai the said election of biv^
gesses to serve in parliament for the same b»*
ningh, for him the said Richard Smith, ia M**
der that he the said Richard Smith miicht ^
elected and returned a burgess to serve for ikt
said borough in the said then next parliaaKit
of this kingdom, to the great olwtructioQ atJ
hindrance of a free, quiet, and indifferent rkc-
tion of burgesses to serve in parliament lor tke
same' borough, in violation and subversioo ^
the constitution of this kingdom, and oftbtk*
bertiei aod privileges of the lubjectt thtnfd» ^

log a right to vote in the election of borgi
to serve for the same borough in the parliament
of this kingdom, a large sum of money, to wit,
the sum ot five guineas of like lawful money,
as a bribe and reward to engage, corrupt, and
procure the said several last- mem ioned per-
aons respectively to give their respective votes
ID the election of burgesses, to serve as bur-
gesses for the same borough in the said then
next parliament of this kingdom, for him the
said Richard Smith, in order that be the said
Richard Smith might be elected aod returned
a burgess to serve for the said borough in the
said then next |>ar]iament of this kingdom ; by
means whereof the said several persons last
above-named, who had such right to vote as
aforesaid, were respectively tempted, corrupt-
ed, and procured to give, and did give their
totes at and in the said election so had and
made as aforesaid, for the said Richard Smith,
for the purpose sforesaid ; that is tossy, at the
borough of Hindoo aforesaid, in the said county
of Wilts, to the grest obstruction and hindrance
of a free, quiet, indifferent, and unbiassed elec-
tion of burgesses to serve in parliament for the
same borough, in violation and subversion of
the constitution of this kingdom, and of the li-
berties and privileges of the subjects thereof, to
the evil and pernicious exsmple of all others in
the like case offending, and against the peace
of our said lord the king, his crown and dig-
Di;y : and the said Attorney General of our
said lord the king, for our said lord the king,
ffives the court here further to understand and
be informed, that the said Richard Smith, well
knowing the premises, but being such person
as aforesaid, and again unlaw! ully, wickedly,
and corruptly intending, as much as in him the
said Richard Smith lay, to interrupt and pre-
vent the free and indifferent election of bur-
gesses to serve as burgesses fur the same bo-
rough in the parliament of this kingdom, and
by illegal and corrupt means to procure him-
self to \ie elected lo serve as a burgess for the
^id borough in the parliament of this kingdom,
the said Richard Smith, before the said elec-
tion, (to wit) on the said 8th day of Ociober,
in the 14th year aforesaid, at Ilindon aforesaid,
in the said county of WiltSf unlawfully, wicke<l-
ly, aod corruptly did give, and cause and pro-
cure to be given, to divers other persons,
namely, Thomas Moore, Charles Simpson,
John Baldwin, Jeremiah Lucas, Robert Tv-
Jey, Thomas Farrell, Joseph Norton, Joseph
Kirk, John Edwards, William Stephens, John
Maishment, John Larkham, Renalder Bowles,
Joseph Cholsey the younger, John Davis the
elder,. Richard Erv^ood, William Cheverall,
Samuel Daw, Thomas Harden, James Ed-
wards, Joseph Cholsey the elder, Thomas
Speucer, James Smart, John Randall, Edward
Ranger, John Deuey, Luke Beckett, Philip
Beckett, Henry Dukes, Edward Beckett, Isaac
Moody, William Hacker, John Bishop, Ed-
ward Hollowday, George Spender the younger,
John Chiverall, John Dukes the elder, John
Dukes the youogeff Robert Wyer, Moses

1937]

Jhr SrHery at the Hitidm BUttion.

A. D. 1776.

.[1S98

the e? il and pernicioiis example of all otbera in
the like case offendiogf, and against th^ peace
t>foar said lord the king, his crown and dignity:
and the said Attorney General of onr said lord
the king, for our said lord the king, gives the
court here further to understand and be infortn-
«d, that the said borough of Hindoo, in the
•aid coanty of Wills, is an ancient borough,
and for a long space of lime two burgesses
liaTe been elected and sent, and of right ought
to be elected and sent, to serve for the said
borough in the parliament of this kingdom, to
wit, at the borough of Hindoo aforesaid, in the
said county of Wills: and the said Attorney
deneral of our said lord the king, for our said
lord the king, gives the court here further to
noderstand and be informed, that the said Ri-
chard Smith, being a person of a depraved, cor-
'Topt, and wicker! mind and disposition, and un-
lawfully and wickedly intending, as miich as in
him the said Richard Smith lav, to prevent
mad interrupt the free and indifferent election
<if bnrgesses to serve for the same borough in
the parliament of this kingdom, and by illegal
mod corrupt means- to procure himself to be
elected to serve as a burgess for the said bo-
rough in the parliament of this kingdom, on
the 8lh day of October, in the 14ih year afore-
said, at the borough of Hiodon aforesaid, in
4be said county of VVilts, unlawfully, wickedly,
ftod corruptly did give, and cause and procure
to be ffivea, to divers persons, namely, Jere-
nuiab iiocas, Thomas Moore, Charles Simp-
son, John Baldwin, Jeremiah Lucas, R(»bert
Tyley, Thomas Farrell, Jos. Norton, Jos. Cuff,
John &lward)i, William Steevens, John Maish-
jneot, John Larkham, Renalder Bowles, Jo-
seph Cholsey the younger, John Davis the
cider, Richard Erwood, William Chiverall,
Samuel Daw, Thomas Harden, James £d-
srards, Jos. Cholsey the elder, Thomas Spencer,
James Smart, John Randle, Edward Ranger,
John Dewey, Luke Beckett, Philip Beckett,
Henry Dukes, Edward Beckett, Inaac Momly,
IVilliam Hacker, John Bishop, Edward Hoi-
Jowday, George Spender the younger, John
Chiverall, John Dukes the elder, John Dukes
the younger, Robert Wyer, MoMes Weeks,
George Dukes, George Hayward, Edward
•IVf wk>ck, Matthew Davis, Philip Beckeu the
younger, Henry Jerrett, John Davies the
jouDtfer, William Day, Samuel Collier, Wal-
ter Percy, Edward Shergold, Benjamin
Beckett, Edward White, John Hooper the
dder, Samuel Farthing, John Hooper the
Tounger, William Newton the elder, William
Kewton junior, James Percy, Henry Huffe
the elder, Henry Huffe the younger, Benja-
■ain Cholsey the jfounger, John Bell, George
Spender the elder, James Anderson the
jounger, William Lambe, Joseph Lambe, Ed-
ward White, Robert Wyer, Matthew White
the younger, Matthew Steevens, William
'White, Richard Ingram, Francis Rapger, Wil-
liam Percy, Elias Piltman, William Cuff the
dder, Matthew White the elder, William Stee-
Pi Osofgs SMfenii Jobs Stser est the

ekier, James Steevens, John Steevens th<
younger, John Wyer, Benjamin Cholsey Ih^
elder, William Ranger, Francis Cheveralli
Charles Wyer, James Wyer, John Whitep
William Wyer, James Anderson the elder, Joha
Beckett, Thomas Wyer, Luke Beckett the
elder, Roger S|>ender, Robert Day, William
Cuff the younger, Elias Steevens, James Stee-
vens, William Gilham, Henry Savage, J arvis
Gilbert, Thomas Percy, John Ranker, Edward
Penny, William Percy the younger, Robert
Gilbert, William Dukes, Thomas Dukes, Ro-
jBFer Norton, Jos. Moody, James Gilbert,
John Gane, Lnke Mead, Nathaniel Pliilipa,
Jos. Norton, Samuel Norton, John Ran-
some, Thomas Brookes, Samuel Phillips, Jos.
Scainell, Wm. Sandall tl^e elder, John Maisfa-
ment the younger, Luke Maishmeot the eld^^
John Maishment, W.Sendell, James Burleigh,
William Harden, Samuel Field, John Bowles,
Robert Ranger, Thomas Lanham, John Ri*
chardson, William Spender, Heor^ Obourne,
John Peony, Richard Pitman, William Nis-
beck, James Davis, Jos. Gilbert, James Godgb,
Jaaies Wire, John Gilbert, John Steevens, re-
sneotiveljr, each and every of them then and
tnere having a right to vote at and in the elec-
tion of burgesses to serve for the same borough
in the parliament of this kingdom, another
large sum of money ^to wit,) the sum of five
guineas of like lawful money, as a bribe and
reward to engage, corrupt, and procure the
said several last-mentioned persons respectively
to give their respective votes at and in the thea
next election of burgesses to serve in parliament
for the same borough, for him the said Richard
Smith, in order that he the said Richard Smith
might be elected and returned a burgess to
serve for the said borough, at the then next
election of burgesses to serve in the parliament
of this kingdom, to the great obstruction of a
free, indifferent, and unbiassed election of bur-
gesses to serve in parliament for the same bo-
rough, in violation and subversion of the con-
stitution of this kingdom, and of the liberties
and privileges of the sul>jects thereof, to the
evil and pernicious example of all others iothe
like case offending, and against the peace of
our said lord the king, his crown and dignity :
and the said Attorney General of our said lord
the king, for our said lord the kinir, giveth the
court here further to understand and be in-
formed, that the said Richard Smith, being
such person as aforesaid, and again unlawfully
and wickedly intending, as far as in him lay,
to interrupt and prevent the free and indifferent
election of burgesses to serve for the said ho-
roogh of Hindon in the parliament of tliia
kingdom, and by illegal and corrupt means to
procure himself to be elected and returned to
serve aa a burgess for the said boroui^h in the
parliament of this kingdom, he the bai<i llichard
Smith, on the 10th day of October, in die 14tli
year aforeaaid, at the boroiiieh of Hindon afore-
aaid, in the said county of Wills, uiilav^ fully,
wickedly, and corruptly did lend, ami cauis
•od procort to be ieoiy to dif en other pcnoMp

SiMwlb,,

M^iM- Bowleg J«f.CholMr
B J>«riMtfaiMtr,.Highu4
;Sr«obd. WIImm CbtfMaU, SumhI Daw,

~ M«Bai«li^JanME4lrMB,J«.aMlMJ

M«n Th«a«w8«eiMrr, JiHM* Snart^Jahi
_ iMI. UwM Kranr, Jsha Dmr, Loka
ANktti, Philb BMkwd, Mmn IMin. Si-
mrd BMfcMI, bue t^Mtt, wiOiam Bvfcw.
'.folM Biilwp, EdMrd BMk«4aj, Gni»
AModtr Um TonivM-, Jobs ClMfmll, JoKd
BaiM Um aUcr, Johk Duhet tha jounnr,
JWwrt Wftt, li«MB Waika, Gaam iMaa,
Cibift lA^tranl, fiilMiri Tivwiach, Malhaw
Jka*M, Pbilia Ba^eU iba ^ongar. Heary Jcrr
^■U, Jolin D»b iba jananr, WUImb Da;,
Minnri GnlUv, Waltar Pmj, E4*«ri Hwr-
«ldd. BaajaMB Ucckait, Alward WMia, Jalia
Soapar tha aMcr, BaiBual Fartbiav, Jaba
Saapar iha jaangcr, WiUinn Hawtaa Iba
tUtr. WiHiaM Mcwtan ib« joaafcr, JMMa
Vinj, Han/ Buff tba Mar. Hnrj Haff Iba

eiant', BtMmin Chalatj Um Mopgar, Jaha
*, Gtwg* Hfmin Um aldar, Java Aaiv-
«mUi>- yanafar, ff ilia* UiBba^ Jaa. UnK
Cd<nwrWbiia,Bob(itW«v. Matbaw Wliiia
Ibaymianr.llubairSiaafaM, WiUiav fVhila,
•ItiabanllBcraini Fnoda Ba^tar, Williaa
Vbrev, Bliaa PhUBU, WilUam CaAi Uia ddtr,
MaiSaw Wbytt tta aldar, WHItaB Saaf aoa,

I, Joba BitBWiM tba vanoRar,
ioba Wyer, Ba^famlB Cbalaav tbariacr, Wik
lianilfaiig«-,FnnEiaCha*ctal,€har)«W«af.
JaaM W*«r, Jaba Wbyle, WiHiaa Wvcr.
iaara Andnwu tba •Mtn', Joh« BackM. "Hia-
■M* Wnr, Luke B««keli the riiler, Bo|[«r
Bpauilcr, RiAten Dty, William Caffe Ihe

If Percj, JubD Rangrr, Edward Percy,
William Percjr Ihe ynaagvt, Ruberl tiilbert,
William Duke*, Thnitiaa Uukca, Roger Nur^
(DO, Joaffib Hocriy, JameaOiUwTtiJalin Qaoe,
liuke Head, Nathaniel Pbllipa, Joaeph NartOD,
Sara eel Nurum, Jnbo Raawime, Thomaa
Brookei, Hainuel Pbi1i|M, J(iu)ih Scai»ell,tVil>
Haul Saudall ib« elder, Luke HaiihYnein ilie

WilliaiD Harden, HamDcl Field, Jgba Buwria,
Robert Ranm, Thumat Lanbam, John Ri-
•banhon, William 8|j*)HleT, Hnry Obonroe,
Jofau Penny, Richard PinmtD, William Nea-
biek, Jaiwa D»i(, Joaeph Gilbert, Jirata
fiough, Jamea Wire, Jubo Oilbert, aad John
Bleerena, rtwpectifely, each and efery of tbem
then and Ibere haTiny a right to *iilr at and in
iba elpclion dI bargeaMa to aerte in psrhameal
ftr the Mine buniugh, a large lum of inonry
' Mofhwfnli

■lid reward la engage,
praoim Ibe mjd •pteial peraoM ■■
w^kMiia§ « pght la TClaw akn-

kingilem. fortfcaartd BiihiiBwIlli. is ai5
tliai be the mU Biilartt^lb n«kl tealacHi
■od returned a bwgaM li aHM te tba aUba^
fougb in tha ibaa mm pMtiafM af iMi k^ -
doiDr M thepeatabtfraMf
a fiee, indiPirwM,— d a

burgesaei MaNva il pad _ . —

boroutrb, iu Tiafaitiaa ami tm%iwnmm *f At
cofMiiiutianartbiabiag4MBi,aMdaClhaH
and pririlegaa af iba a"^' "- '

« tk* pMaerf
.a^jg^-

our uid lord iba Uag* kta

At the *8Bji tisic, faa filed • Nkalnlta
mnlatit niul«a#^ ■!■■■» eaek af Um
whum the Bou^frCAuMaa ~
to jirose^ute-

Id Hilary Mm, 14 Oaa.S, Iba DaftidMB
pleaded Not 0«il|y, aad MHnayw mmm •■

PitOCEESIlfOS OS THE TpiAI, Ot 1^1
iKFttSMATIOV AOAUUII B.lCMHi

SmJIB, MO' . .. •

Countcljbr Of Crem.-'llr. BhL Omf
Mr. ^. BaBUi,t Mr. Fbpban, Mr. tkm

Mr. M»j«ey,»r, BilBcr.{

Cou»,eljorti* Dtft»dnt.r~Mt.aAaiim
Ur. Mao>BcbI.|Mr.BalL

Mr. Duller apflnad Iha Iwfti wlla^i ■!

«lh» lliiiii^
mM t»«MUDai»

Hr. IFUte Bworn.

ounstt/or iht Dt/endmul. WaadMtJIli
.u aocieut borough.

Ur. Salmm aMont.

Ur. TikMM KyMBwon.

Thit precept waa delirareil Iohm; Idd*

verail ii U) Mr. Still, Iba bailiff of UindBa^

Hr. Jama Sliti iwora.

EiamiDrd by Hr, Morris

I was retaraiiig officer for ibe bataofh '

Hinilou.

wanbaJudgaofB-B.

iaiiiM (Jan. 181^ onaiff AaiirfM

* Al'ierwardia

t Altbiaiii
ofC.B.

t Alierwai^ajiidg»ffM«r&ft.arf*M
ol C. B.

§ AtUuitiSM(UU)O.J.«C43.»

mi]

Jot Bribenf ai the Hindon Eleeikn*

A. D* 177&

Do you remember wbo were cendidatee at
tliat election ? — James Callborpe, esq was do*
minaied by four of tbe electura ; lie was oot

Sreseot ; Uichanl JHecktiord, esq. waa preaent ;
tichani Smith, eiq. and Tbuuiaa Brand Uol-
Ua, esq. were tbe candidaii^ ; this ia the original
|»oll taiken under my iotpection, and aignal bj
me. (It is put into court.)

Francii Meade aworo.
Examiued by Mr. Popkam,

Where do you life f — At Hindoo.

Are yuua voter for Hindon?— Yea, efer •inot
I have beeu of age.

Do you know capt. Nairn and parson Nairn ?
r-ldo.

Do you remember their coming to you at
imy time? — Yes, in January, 1773, at Mr
Liicaa's, who keeps the George, a public house.

What did thev say to you? — Capt. Nttirn
•ent for me and hve or six more, and told ua be
IumI a gentleman to recommend to us.

For what ?- -To be a member for tbe town ;
Ihat was what we took it to be.

Mr. Serj. Davjf. Don't say what you took
h to be ; tell the Cuurt what he said. — A, He
aaid he had a gentleman to recommend to us of
n large extent of fortune; that he would not
ba?e him fl.ing for Io,000/. he would not ha? e
hiui flung lor the Indies.

Who were iu the room? — William Lucaa,
John Beckett, Thomas Howell, myself, and
John Hart ; W iliism Fenny cauie in afierwarda.

Mr. ISerj. Davy. Was capt. Nairn there?—
JU Ye», and parsun Nairn.
] Mr. i^ophutn. Then it waa that capt. Nairn
■aid he haU ageutlemau to recommend to you ?
^A. Yes.

Did be say f4ir what ?— He said. To be a
Member tor the borough.

What did he Kay uf this gentleman that he
Bieaut to recowuieud to you?— He said he
would lay dowu :i,OUO/. one tliouMiiid iu a small
trifle ol time, one thuuMad at the next fall of
tbe year, aud one thousand just before tlieelec-
tMo, aud he would not stand for 3, 4, or 500,
Of er aud abore the 3,000.

Waa tbe proposal agreeable to tbe people
tbat were present? — Yes, they liked it fery
well > vve had a bottle or two of shrub together,
and some of the pe<»|>le iu the room weie talk-
ing about captaiu Gtiid of ^aliesbury ;* we
aaid we would be higher than tlieiu, it should
be general Uold.

* See the Case of this B«Nn»ugh in vol. 2
of Mr. Doui4las*s Election Ueports, Case 10 ;
and tbe Hupplenient to it in vol. 4 of the ssme
work. For more concerning bribery, »ee Mr.
PoogUa's Note (B.) to the Csmc of iiaint Ives
in vol. S. In D«»diiigion*M Uiary, the portrait
ilniwa by an euiiueut practitioner of corrnption
and venality lu polished * Ui^h Lite,' and the
laogvjage applied by him to corruption and ve-
aalnjF in uacdocated * Low L*te* are very
ftiikiDg, and certainly m% km bimiiiating.

Mr. Seij. Davy. Who aaid thatf-<--I cannot
recollect which of the company ; we drank
general Gobi's health ; then capt. Nairn said.
He is a brave general ; he baa faced, tbe mouth
of many a cannon. The company aakei capt.
Nairn, in what manner and how the money wa«
to be let go? he said. Once in a fortnight or
thereabouu he would send somebody, or aonie^
thing of that kind.

Was there any thing more passed at tbb
time?— I do not recollect tbat there was.

What was the next thiutf yon know of this
business? — One Francis Ward, esq. coming
down from L^mdon, thai was some time in
February, I think, about the 9th, be camo
down to Hindoo ; there was another gentleman
along with him and his lady ; I saw him at
Lucas's, the George.

Who was with you ?-- John Beckett and tbo
rest I nominated before.

All tbe aame |ieople as before?— Yet» to iIm
best of my knowledge.

William Lucas, John Beckett, Thomaa
Howell, yourself, John Hart and William Pen-
ny ?— Yes.

What did Mr. Ward aay to you ?— Tbat he
was come in behalf of capt. Nairn, or hip
friend; and he had brought down some bank
notes which be wanted to get changed ; be and
Mr. Hart went to Shaftesbury to change tbem»
and he gave lOf. in the 100/. to get them
changed.

Did he say what he brought these bank ooiaa
for i — On behall of capt. Nairn and his friend.

What did they do with them?-- They went
to Mere to change them : they could not get
them all changed there; they changed somo
at Shaftesbury : Thomaa Howell and I went to
Shatlesbory ; 1 went there to assist in getting
the notes changed, which they could not get
changed at Mere.

Where was Beckett at this time?— He staid
at home to draw notes of hand, the notes wera
for twenty gumeaa ; there were four in each
note.

How many people were to sign tbeie notes?
—Four.

Waa this settled before you went out?—*
Yes, for Beckett to draw the notes, that waa
settled.

And he waa to draw them as twenty gumea
notes?— Yes.

Where did yon go afUr your return ? — We
went to Lucas's that night ; that waa tbo
Thursday niglit ; it was Wednesday night wa
aaw Ward tint; it was Thursday we went to
bhaftesbury; we came home together upon
Thursday night from Shaftesbury.

Did you settle any thing at Lucas's that
night after your return from ShafVeshury ? — 1
packed op the money in |>apers, five guineaa
in a paper.

What did yon determine to do with it ?— To
give it away to the borougb-meo, as far at I
know.

What waa in fact done with it?— It was car*
nod to aliltle cottage^iouaabjr Wanl.

msfi

16 6B0RGBm. TrkA^R:Smiikmii^.B.MlJSi^sain. [}Mk

Wat thalietiM alLaflw'flB^lluityoaipcre
ii go there f — Yet.
. Wboee houie w»s that eottefe-hooR P—
Geoffe Hay werdPe.

Wbea was it yon were to go to George
Hayward'b f— The man day, the FrMay Bigrht,
the rotatmen oame there aad received the fivo
f hwaiapiece; [ aappoae it was nuNiey, they
iaok the paroeis I saw made ap at I^icas's.

Was It a pretty hufpe assemhly at Hay watd V
—Yes, a good dmui^ were there.

Was he' to reeeire any thing f— He had a
Ipaioea for the reot of the room.

How naany people might be there that oight P
i*-8ix or seven score I aoppose.

He yo« reooUeot any persoiis going in P«*-

Yee.

Name any that yon reeolleetP— I wonid
father go hy the copy of the poll.

John Norton; waa he oneP— I won't aay
Ihai all 1 shall nominate took the money at
Gfor^fo Hay ward's; some took it at Lncu'S
■pcMi Sonday.

You rememher being at Bay ward^ at this
time r— Yes.

Who did yon see there P— I cannot reeoQect
•n the persons thst were there.

I don't mean yon should reeoIlM all the
Msens ; 1 ask yon now simply who yon saw
thmP— A vast many of the voters; Mr. Ward,
Mr. Hart, and John Beckett the baker.

Now IS John Beckett a voter P— Yes, and so
was Mr. Bart.

Who was there besides P— Mr. Hart's wife.

Mention only the voters ; who did yon see
^Jbere besides P— There and at Locaa's, 1 eouM
■ominato aama.

Recollect as wr II ss yon can at Hay ward's P
—I cannot separately.

Were the «me people at Lucas's that were
at Hay ward's ?— Some were.

After you had done at Havward*s, you went
to Lucas**! the next ni^bt P— Yes.

And the same kind of business was carried
on at Lucas's? — Just the same.

If I understand you, there is a little confu-
sion in your mind, about u hether they were at
Hay ward's or Lucas's; but you say you can
name some that were at one or the other places,
but you are not certain which P — 1 can nomi-
nate pretty nigh an hundred voters that were at
both places.

I see your anxiety is about recollecting all of
them ; that is not material : now name those
that you are sure of that were eitlier at Hay-
ward s or Lucas's? — Joseph Norton, Joseph
Cuffe, John Edwards labourer, John Mash-
man, John Larkham, Renolder Bowles, Joseph
Cholsey junior, John Davis senior, Richard
Earwood, Samuel Daw, Thomas Harding,
James Edwards, Joseph Cholsey senior, Tiio.
nss Spencer, William Scammel otherwise
Target, John Dewey, Luke Beckett, Philip
Beckett, Edward Beckeft, Richard Pitman,
John Bbhop. Edward Halliday, James Gil-
hart ; hot 1 iieliove ho was not polled : John
Chivofelly John Pukaa janiory Robert Wycr,

Henry Jeitwd.

^^ere tlMae aavand
named, voters of HImIob at tkia finwl-^-Th^

Gholaoy,

tiiat jon

^ DM yon aeo them either at HnyfrmffWarih

Oooffgonext evening P— • Yci^ oinar nt thaan
orthootheroftheaaaloeQsL . • ^ . -*

Chn you aay wheOier yo« anv thane panm
yoo have named either at one plana ar Ihs
otherP— What 1 ieamt ao randy Igrt v»h«^
iMrtbe liiit from John BaalMtt ; bnlwptafat
ofthem fbnr in enei^ aa tlicy worn dnini H^ia
thonotea.

Yon left off I belivo with Henry Imrfi
jp on to namd aonse nsweP— »Jnlm
junior, Edwaid While, John Hooper
John Hooper, junior, Henry _Ilalh
Henry Uoff junior, Beajanain
Jamea Wyer, John Ball, Geo
nior, Winiam Lamb, Joaeph ■■■■^, .....^
Wyer, Matthew Stevena^ ^riHiana WIMl
Btiohard iogram, Fmnela RnngcVf wwa
Pierev, William Cnflh, aenior, MnttlMfv WMl
the dder, Willhun Slevena, Ocbffn 8laraa|
John Slevena Hagg, Jaaaca Stevonn fii||^
John Stevena junior, John Wyer the snojai
Benjamin Cholsey, William ifaafer, tmm
Sievena, Francia Chiverall, Clmrica Wja%
Jamea Wyer. ^ _

You meotMNied Jamea Wrar helbiv P-«9hHt
are two; one na ahoemaker, theodioraii^
boorer ; Jamea AnderMn aenior, John BsMI
a aeevyer,* Thomas Wyer n neevyer, Ub
Beckett the eMer, Roger Splender, RobartB^b
Robert Taylor otherw«e SaaniU Jnmaa Olsw^
Blias Stevens, laaae Savago, Willmaa Omm
Edward Pierey, Thomaa Picrcy, WMt0
Dukes, Roger Norton, James Gilbert, Jfla
Gane junior, John Gaue aenior ; James El>
wood's wife came for him ; Nathaniel PbiKp%
Joseph Norton, Samuel Norton, John RsaM%
Thomas Brookes,] Joseph Scammell, Wiffw
Sandel the elder and the younger, h^
Marshman senior.

Was the other there? — I am not oertaia Wf
to one. There was John Marshman sesiir,
John Marshman junior, William Uardm^ h-
bourer, Thomas Field, Samuel Fiekl, Joks
Bowles, Ohailiah Ranger.

Is Obadish Ranger called by any stiff
name ?-- Sometimes they call him Robert

Were those persous you have named atcilba
Hay ward's or Lucas's?— Yes, at ooe or cth*
of ibem, or both, to the heat of my fcaio*
led^e.

Did any of them receive the money P— Hi
money wss put in psper, they took ine fMff
off the board.

When did you first see general SoMdi '
Hindon ?— -May be about a week or a fart^gll
before the election.

What did you do after thia hyaineas at 09*
ward's and Lucas's P— Wo had a bit of a fV"
ney to London.

• fibhi trig;

MS]

^ "Briber^ ttt tki Hindm tke&yk.

A. D. me.

[IflfS

Who went to London ?— I went along with
r. Hart.

How long afterwards?— -I cannot rightly
collect : it was some time afterwards we
;nt to Mr. Ward's, at No. 16, in Sberborne-
le.

What was your conyersation with Mr. Ward f
Sometbinir about guineas instead of pounds,
r. Hart told me be bad orders from tbe town
It it sbould be guineas instead of pounds : be
TO Mr. Ward a paper, but wbat was in it, 1
n't know.

Wbat did Mr. Ward say to tbat ?— He said
would talk witb tbe principsl concerning
it.

Did he say any thing about tbe sum ?-—
ml it sbould be 3,000 guineas instead of
Dnds.

Mr. 8en. Davy, Was the sum 3,000 men-
ned ? — it was meant.

Did you see any thing of tbe principal
>re?— 1 did not: he said he would apply to
! place of meeting over Westminster- bridge,
» Gun tavern or Gun alehouse, I think,
■rd came, the principal did not.
Did any thing material happen at that meet-
\ f— No, there was a letter came to us to ap-
ut a meeting in Scnilaud-y ard, 1 think : we
re not at home when the letter came ; the
ct morning I went to the niace where this
jtlemQD was to meet us, ana met Mr. Brown
(he Strand.

Mr. Brown was the man that came down
b Mr. Ward ?— Yes.

Hr. Serj. Davy. Is every gentleman that
s an company with Mr. Waid, at any time,
upon any occasion, to be considered as an
Mit of sfeoeral 8niith f

tf r. Popham. if I do not carry it to Mr.
ird, from Mr. Ward up to capt. Nairn,
I from capt. Nairn up to general Smith, I do
biog.

Meade, f met Mr. Brown in King-street, but
ever met Mr. Ward afterwards.
>id you write any letter to capt. Nairn about

!>id you receive any answer ? — Yes.

[The Letter shewn the witness.]

Meade. This is the letter I wrote, this is the
wer : I am certain tbat is tbe letter by the
Ciog at the bottom of it.

[The Letter read.]

M BuryHreet, St, Jama% March 1, 1774.
' Dear Sir ; 1 received your favour, dated

116th instant, and am very much surprized
t yon, or any bo<ly in Hindoo, should doubt

truth of wbat 1 formerly told you, or that I
sldoegiect to acquaint them immediately of
' accident or any intention in my friend to
line continuing in the first principle in which
Mft off. You may be assured, and 1 desire
I will let the rest of my friends know,
i km scorns to put another man's shoe on his
t, or let another man put his on ; that he is
liH «f honottc and large property, and not a
t

▼cry great distance from Hiodoo. If my
agents, as you call them, did not give you aaa-'
tisfadory answer, why did not Mr. LucM» ^ I
desired, write to me P And 1 request it may be
so, that 1 may know the wishes of the town |
for it waa their interest and welfare I had at
heart, and the motive of my interfering ; and
shall be, while with troth and honour I can
call myself their's and your obedient faithftil
friend, F. Nairn.''

Was there any uneasiness in the town at
tliis time P-^Yes, there was.

Wbat was that about ?— Because Mr. Nairn
had not kept his word according to the time
that he prodiised, because he did not advance
the money as be had promised.

Was tbat the second payment ?•— Yes.

About what time was tbat uneaainess in the
town P — 1 cannot recollect now, it was sotne
time in the winter.

It was further on in the spring than the other
passages you have been speaking of P — Yes.

What was the next thing doneP — Some ohn
ney to be given away at Lucss*s.

When was that to beP— It was on Easter-
eve, 1774.

YifU ssy there was money to be given Awaj
at Locas'sP— That was the report.

Whom did you hear it from P — All the peo*
pie as they came down stairs from taking tbe
money.

W bom did you hear it from before the money
was given away P---Mr. Lucas ordered me to
come and ffiaze a window for him, before they
came, to get tbe room for their reception.

When was that P— Tbe Saturday monmig^
the day before Easter.

Do yon know any thing that passed upoe
Easter- eve P — Parson Nairn aaid to me, go
ronnd to all those people who have not received
the first eight guineas, tell them they shall all
come in on Monday night and receive ten gni*
neaa each.

Did yon invite the people P— Yes, I did ge
round witb a lie in my month from a parson ;
tbat is the worst luck.

Wbst was this money for P— I don't know,
without it was for election-work.

Wbst did psrson Nairn say it was for P— -He
did not tell me what it was fur, to my know-
ledge.

What passed the day after Easter- dsy P—
The greater part of the i>eople came to receive
their ten guineas each.

Abont how many were there, fifty, a hun-
dred, or twenty P— Not so many, 1 went up
only towards tbe conclusion: on Monday night
there were a vast number in the yard and round
the house.

But you cannot tell how many P— I cannot
tell how many took it.

Did you go up into the room P— 1 went vp
into tbe room on Monday ; they would not let
some of tbe people have it that the paraoA'Mnt
me to.
. . W.liy, Jireald thej not lei then hate it P«—

trni^ wtiBOBiiB in. ivhfc v^Jb mM — i »ji

•»

Ha4 lilt ran tbe «iM7 N-*8» te « I kavir

I it iImI jfwi ftnt ift w fWMfttl flnMb
M HMm r— 1 MiOTC abMii a trade fciftre Hm

. WIm M g«Mnl 9mHk am eMoeto Bra-

iM r-^I fraS Wt At b«NM JNtiMn Im «MM.

' Wkt 4id be CMBC tritii wbea joa «air Um f
— Panoa Nora and ci|itab Nam,

Wara y«« araamttrlw ciUwr af Ihara talked
if feMral SWih N-1 4M Mt baar aitbaraf

BMyo«aaa tlMNS caaraariiif Hw tewB f — 1
fajip^attddavBtlMiainis IMoat
SO laia 9Mj panMMtf oavaai aaraapt
■iBcaa % wMva Mmv tMmifMB^
Weraoapiali Nain awl panaa Namwith
r-rYaa^ whaa I anr draaa waliuif MiilM

WMt aaflM #af fplMra] 8bbnb fvaaraliy
Inairi Ira iofliBdaB ai tliiatiiBar-->OcMral
eaUllliay Mai ta aall Uai bafera ka eaara
4aira.

. Plilha aaraa tortiw aftar km cmm 4iomn f
«i-OaaoNUi, TbooMa Braakoa, fatad fkr hiai
^NHi Iha paH ly ilia aaara af gaaiial QM.

WcTO voa praaaat at aay tioM wImi aay
talk wia had ia ika praaaaoa af gcaaral Badlh,
aka«t gMMiml GaUr-^Nat la aiy kaowMfa.

Do jaa kaow aay iblog aboat roncb daae*
iiyal Hiadaa r— I was'aat atlMma.

Cfoai-cxamiBad by Mr. Bajaaat Any.

6a wkca yoa arcat la Laoaa'a to friaaa Ibe
wbidow OB Eaater^Moaday, Ibay fraald nat lit
tba mea bare Ibe money, tad a'rooiig ibe
rait 1 aoppoae did not let you have the money?
—1 did not fttk for it ; 1 did not inleiid to have
it.

Did they nerer aay they would not let yoa
have it? — That must have been a miatabe
vpon the cooitnittee : I said they wonld not let
those people have it the parson teat me after.

So it was a mistake when the committee
wrote it down, and you swore it, * that they
would not let you have it, and it was a damn*d
tof^uish trick P^-^That was John Beckett and
them.

So they made a mistake in that?— They
ini^ht as well make a mistake in that, aa to call
me John when my name ia Francia.

You never swore before the comaiittee that
they would not let you have the money ?— I
eanoot recollect that I did ; not myself in par*
ticolar.

You told us joit now they would not let the
people have it P--That tvufi one and all.

I ask you whether yoa did or did not swear
before the committee thai they would not let
you have the money ; and therefore yoa aaid it
waa a damn'd piece of roiraery, and you wouM
bave aothinir to do with itf— -I saidbefbre tba
eororaittea that I went up into the room, aai
ThomaiBpaawriakI it waa a daoMi'i piaoi af

r,.— -iibiiil'^aa*
iwaanr alt raaai, aai I wa«Mi
•ibii.

iM aot let tboaa wbo hai airt

m let
Tba

Dii jraa
mistaka ailbal^
Diiyaaaraat^
Yoogbaai Ibat
Yaa.

laomP— Yea.

Yaa
fita awaay «a wmj baiy N^Mh bmI wUa J

waa praaeaL
Diiiaaai

.h

wbara tbey wara gMmg

--WbaraAay bai^bami gisiag'
Dii Ibay ibaa fiva aaaar
S Ibay bai baaa aieift
' t Ibay baiteait

«£

Tbaa it ia aat Inm Ibai y^ft
afbaia Ibay wanpvia|f

fiat bit traa Ibat yaa

tbey waraciviaf r— I S4
fivaaay wbilatlwaathafak *

Coaaaqoemly yoaaaaaat tail
yaar awa baawleigar— Hoc

.Yoa aaaaat tellt af yaar-
wbetber It waa gifaa atalirr-Nb
what tbaparaoa toM
BIO Ibay raaairai iva

Coasc^acatly yoa aaaatt loiraay wmfM
roaeived«r aawbai yon aay moasy **"
time? — No.

Noae at all ?— No.

Neither the first five guineaa aor tba
five goineaa f — No.

How cama you not to bavoit? Dacsaal
did not have it, that waa tlic reaaoo*

Why did not you have it P— That ia ta a^*
self.

But I will know ; at leaat yoa aball satt
something. — I did not ask for it.

Nor tbey did not oflar it to you P— No.

And why was that?— 1 caaoot tall.

My friend, among the people tbat yaa !•■
given us an acoount of reoeivinigr t|ie asoaiy,!
think you aav that Matthew Wbito juaisraai
not there P— Not tbat I can reoollact aaw;

Richard Pitman, was be there P— HawMili
the best of my knowledge, aai oa waradlii
rest.

Why, here are a vast aomber | yaa aHpfii
at Ranger, and hare are thirteoa aaara tbstjfii
awore to before the committer, tbirteea al«*
line.--**! caanot recallaet tbaan aU afaia*

What list did vou awaar Iroiu iboa^-^'
tbat I nominated by word of

You atop aow, both by
at Ranger, and omit tbirtaaa

E.

Jhr Brihtrif at the Hindon Election.

A. D. 1776

[1250

-If Id

I't rKollecl (hem, I can't i

ther

Don't yon remember, beliire the cominittee,
nponthe e rots- exauiiualioii, you wereeianiin-
ed touching ihe bu^inMi ol' the malt-hoase,
tltou^h thai doM uot coacern geaeral .Smith f

Voii nere examined teiichinB- the buiinessof
(be malt'haiisef — Ve<; liut I ilon't hiiDtv that
I hsTc any ri^ht
liare (rot aa order to atienil Ihe Home of Com-

Did you, or did yoD tic
•ft* any muiiey giren s
¥m. Idtd, andl wilUwe

Did yon never see a i
of the malt- bouse f — '
Mw the bole till a

Did TMt you

, say that you never
llie malt-house? —
f it agiiin.

■ the liole

•lid,

rim

ir allcrw arils.
I say, that you were iiol at tlie
n>mh>h»uwi'''~No, it was at a houae adjoimng'
lo t be mH It- house.

i lliiuli you laid you came into the room at
L«cu'a atier tbe mancy had been given ?—
After some hud be.:ngivrii.

1Vb< any money given while ynu was there
•t iia-tet ? — None at all ; there was none given
wht^ I was iireHDi.

. Were you [.resent at the makine of tbe bar-
gain about BelliDg- those voiesf — 1 was ibere
»lien Nuim maiiu the |irnpo«al.

Did onl you agree lu iti' — 1 did, along with
Ibe rest of my neie'hbours.

You were oncnt ilie partie« mnkinglhis «nr-
ra|it agreenienl lo atll Ihis burough ?— 1 cannot
befp ■( now.

Hr. Pofkain. lie repents ol' it.

Mr. BeH. Davi). Then you are ■ sa<l, re-
pealing' miserable sinner, are you F You made
« bargain for the money wiili the ttA ot* thetu.
—A. We consented to it all ol'uH.

Wiliiam Penny snoro.
Eiamioed by Mr. Moi/se^.

Y.>uliveatHiniloDf-.Yei.

Do you recnitect bavinir any cnnvemfion
with captain Nairn, in February 1773, about
the election ?- -Yes.

What day was it?~I oaonol lelt ; I believe
il WM en a Thnrtduy ; Ihe ca|ilaiD came lo ray
houae; be shook bands wiih ine; lieaskedme
•otne >|iiestian« ; then be urent to Lueas't, and
■ent Th<M«Bs liowell lor me ; he sent a aecond
lime, and then I went.

Wlto it«re there (*— Thomas M.iwell, John
Hart, Francis JVlead.tlie rev. John Nairn, WJI-
bMti Lucas, BTKlcapiain Nairn.

What piusril f — He desired me lo sil down:
then oaptain Nairu HHid, be had a particular
fri«ud that he «hc>ulJ be iflad lo presi-nt lo Ihe
bor»iit;h ul' Huidiin, and he would not have him
deceived, nut for the Indies.

What pasted then?— Then he snid. his
IriMtd should prnduce 5,0001. and that he would
■M stand for 200 or 300 beyond the:],i)00.

Did he say thin^ more?— Yes, that one
laiid should lie dialed of in nrery little

lime, but he must pi to Loudon first) then
there wbj some money broiii(hi, and let ga, at
William Lueas's, at the Ueuriie' when he
spoke ibeso words, I was coniinc from him ;
he desired me to stop and drinkairinss of some-
tiling; he ordered & butlle of ahrub lo be
brou^fht.

Have you told us nil that was said by en plain
Nairn beture tbe shrub was brought? — To tite
best of mj remembrance.

Have you lutd ua all he aaid about tbt
money f— One thousanil wu-i to be letgoimtnC'
diately ; one thousand at Ibe lall; aud aibuu>-
sand about a week or n fortnight befoie iba
election.

Is itiat tbe whole he said about the money .*

— Yes.

IVlut was said, in answer to this, by any of
yoo? did Ihcy refuse it or accept it? — They
aecenied his propusul.

VVosany thing more added to the proiHwnl;
or said about the proposal, before the ilinih
was railed lbr?—N'itibHl 1 recollect; us soon
s* tlie shrub was called for, the convenaiiou
about the luuuey drop|bed.

Was any Ihing more said about the eterlion t

— Notattbattime.

Did you' hear any thing more said hy Nnim,
who WHS tn be llieir candidate ?- —The capiain
said, he did not know the names of all iha
voters that were there in company ; be desired
his brother, the rev. Mr. Nairn, to write the
names down of lliiise that were present: then
I drank some shrub by his desire and came
away. I did nut stay till the meeting woa
broke up ; I lel\ some people there.

Did you drink any body's health there?---
^Vlien Lucas brought the bottle ofshrub, Meade'
said, Whose healllr shnll we drink? Luca*
said. Captain Gold : Meade's ansiver was, Ho
would not drink captain Uold; Then, said
Meade, it shall be general Gold : Yet, said the
captain, be is a lirare fellow ; he has faced the
mouth of many a cannon.

Was any thing more said aboiil cnptaia
Guld?--Not that I heard; I kit both the

aims there, aud tiie rest of ihe company.

Do ynu know Mr. Ward? — I did soon sfler

came Irom Lucas's.

About how lung alter Ibis was it yoa met bim
at the Georgef— I wasmcompany with hint
at the George the first time I saw him.

How long after what you have been speak-
ing of ?■■- About three weeks, or between threa
and four weeks,

Were you sciit for there, or did ynu go ol*
your own aocurd?---A mcss.nge came lo me
that a Mr. Ward wauled to see me ; 1 went la
the George.

Whom did you find lhere?--This Fr*di!ij
Ward, as he luld me his name was ; there
were mure peuple there, 1 Ounot lecolkct

Keculiect those yon bapjien to remember. —
There was John Hart and Thoniasliuwdl, and
Beckett the baker.

How many miijlit Ibere be ia OAtaWt— -V

18B1] MQEOBGBltL T^ki$^ R^atmM^T^JsLBMknfn. [mr

otfMi^ teU; ft gml iBuiy'ptopli OMM iftar

tlw money

Wbat WM doMr— Hwie wm
;l0tjKo» I Mieve.

From whoa ood to wkon
• put ?— From Fnmm 'Wurd.

How did be begta : did bo iov lor wbol mv^
pooe be produoM tbo moMy r— He ieio be
•would ikpd fife goiaeee to eajr neigbbour of
mine tbai wis 4 Toter in tbe bocongn of Hmh
don.

. Wat thtl upon year eining into tin room r
^IIwaoioinetiineaAer Iwneinthnlinoai. -
: Wbol n%bt Warden/ to yon to toon •• yon
etma jnP— Heosked me bow I did,
'. You nerereew himbdbw,! beliefo N«-No»
we hade great deal of dineoree.

I want to know an bo aaid abont tbe oloolieB.
•—It ii tmnooiMeibr me to reeoWect,
. WbatydidboMybewonkllendeorooflMney
p yonr fnendir— Tbey were Ua ftlandei not
naine: be pnlM ont fomie mon^*

How mneh money did bo ^M ontr«*-I
.cannot tall ; tbera wem eoean m papen» and
aomeloQee,

Wbat did yon eee bim do witk tbat aaeney f
- *— He ddifercd it to tboee wbo ligncd a note.

Wefe-tberoagieal nmny ef tbeee premntr—
»ee»

-' Did yon eee n great nmnyaign dm MtoaN—
Yce.

. And of eonrao onw a great many raceife tbe
money?— rdid.

: How lottg migbt tbie omne^ be gitiogt and
tbe n^Ding notes laatP-^lt migbt end at abont
teiglit 10 tbe evening.

. ^boQ, did it bigmr—- 1 imagine^ abont one
o'eloek.

At what time waa it yon went tbere f —
About one o'clock.

Then they were-lbere from one tall eight?—
Ye«.

And giving money all that time?— Yee, ai
fast at people came ; but tbey came in Tery
alow*

Wai any thing raid about the purpooe for
which thai money wm given ?— No more than
general Gold'f health was drank at thai time.

I suppose whenever thejf delivered any mo-
neyhis health was drank? — Yes.

There must have been a good many receive
the money that day ?- - Yfie.

This was at the George?— -Yes.

When did you leave them ?— Abont nine or
ten o'clock I went away.

Did you leave Ward there?— Yes.

Ward did not tell you who he was» or whom
^ be came from, did he ?— No.

Yon had never seen him before?— No.

When did you see bim again?— I bate not
osen Mr. Ward since, to my knowledge.

You did not tee him at Hay ward's?— No*

This was in February, 1773?— Yea.

Do you remember any thing of tbia sort in
Eaater, 1774 ?— No.

Do yon recollect seeing oarson Nauru abont
Easter. ir74?--He sent for me up to John
Bodmtt*ani|tia8wa%

Did yon gnlu-Yfli. to bn
forme.

Whom did yon ibd there r-i^i
bawaaV bimeeir when I went «p

mht

Mm;
Iha

toara?

that

mgaoteofitodwiih
Nairn 8aid> the beat of nay
wiU anmily the pear thaft
nferylnilntiauh ...
Wbat did yon any to thnt F-^
viend waften ummm
r Hh told me hannvM Ml
1 dmimd nim to wiito
friend ; ; I onid» Ynnr Mand. if

crii-

toUr

it k bat ft dqp*to tidn to go

Did yen

Jul

I wna gnnam nwMBa
by tbe lk»eide,and nnid te
Hwr» Aya^ yto donH knnev, it ia Ml
8nulh< my mwwnr wna» ThM <lfNr*i
Cbarica Hmnphrica baa told im alin,r^ •■ ^.
Did any thing mere paaa niMMat iNMMMM
at tbia liM r— Not that I nM fonannm.

Tbere wna M -one preaanl hot
there?..- John Beckett and

»* ■

Waa any thuiir '■^v* ■**' nhmatthe
after they came, in ?..-Thny anii, Thamp
was, to let people have mean hmmv.

Whm did Nairn aay r.-ll niMoM b»
feryaaon; but bo moat go toL

Did be mentkm tbo auni that
tribnted ?— Not that I raoaUaet.
. Waa any thing naore aaid nbal the mm»?
-..That waa all that paasad then.

Did yon eee any money given mtf
Eaater eve ? — No,

Did you see any money diatribvrted on Esdn
eve?— No.

Do yon know of any other oocaaioB wIm
money was distributed relatiTO to the dfcnmf
..•I never knew any pern but with papen.

Do you know of any money
papers ?.->No.

When did you aee general Smith ?~.I
changed a word with bim in nay U/hi
Nairn told me it waa general Smiilil» jaatiMi
tbe election at Hindon.

What was he doing when yna nnw hha?*-
Parson Nairn came and abonk mn by thtbtoi
and toM me that waa genemT Smith.

Wbo waa with him beaidaa ahn nr. iii
Nairn ?-~A fast many.

Did any body apeak to ynu nhnni hhaH
that time Seaidea John Nairn ?— Nn.

Did yon aee any thfaigof Pnnabf ••^NOi

Can you reooUeot aov other nnoana of dds
that were preaent at the (iann nff the msaf
given by Mr. Ward m F^braaajt IflSM
can reaaembor, Daniel Laaabort* the
oary, caow, and raoaivnd fttngnincnaftr
ae|f and five for bbftthar; wmI Inn
Newton, 8an« and William Mtwto^ jan. !«*
oaivoit.
( Any body olaer-Notihid4

j9f onbtfy id in&

Emshoiu

A. D. 1776.

LI854

DM-eztmiDed by Mr. MamJUUL

yoa P— An* iniilMkler ooomionly

ire one of the men that made tbti ber-
int for captain Gold ?— A bar|fkin f
I barrio. — I madenebamio, because
i8t what Nairn pleaaed ; 1 could make
in.

were yoa with captain Nairn for at
when tbe captain sent for yon ? what
do there? — How could I roakeabar-
the town ? 1 conld not make a bargain
rif. ^

when Nairn propofied, as you said, to
riend of his repreient the borough, and
IS 3,000/. to produce, yoti said it

Hig, and it should not be, I suppose.— , longf there.

y suppose what you plense.

ras it so?— 1 asked them that were

w they liked tbe proposal ; they said,

dl.

ure one of them P— I was in company

ne.

you one of those that liked itP— 1 was

>mpany certainly.

lid you make any otyectioo ?-~How

no mentioii was made whvthe penon was, for
whonr this 3,000/. wat to be distributed ?—
General Smith's health was drank.

Was ffeoeral Smith's name mentioned P-—
General Gold;

And that was mentioned after captain Nairn
had sakl they shouki drink captain Gold P —
Yes.

After this, yo» tell ns^ Ward cami to the
George: what time did you go to bimP— -It
might be about one in the afternoon.

You swore before the committee, that it was
about seven or eight in the evening when Ward
came. Was it ioP— It might be seven or
eight o'clock.

Then bow came you to say it was one P—
I was there in the day time ; I did not sUy

might have said you did not like it ;
upon your oath make any objection P
not End fault.

your oath, did not yon approve of it as
the rest P-—1- asked them how they
e proposal ; they said. Very well.
\fwi not give captain Nairn to nnder-
at you liked it very well P---1 am upon
1 : what I have told you is truth bi-

you did not give captain Nairn to nn*
I that vou apuroved of this proposal for
0/.-— No fartner than what I nave told

must answer yes or no ; and men that
answer are to be puni^ed. Upon your
d you mean that captain Nairn should
md that you approved of the proposal P
not say farther than I have.
t. Come, Sir, give an answer. — I leok-
id, and aaid. Gentlemen, how do yoo

proposal P And they said they hked it
ill : 1 did not say 1 misliked it.
vhat 1 ask of yoo is, whether you meant
Nairn shouki understand that you liked
HMal P— I made no objection against it,

the rest of the company were agree-
it.

you liked tbe proposal P-— I made no
DS to it.

rou like it P-^1 did not make any reply
it or for it.
did you feel yourself P Did you like itP

not say.
t. You have given very trifling an-

if yuu don't inioiediateiy answer the
I, I will commit you : did you like it,
ou not like it P— Yes, I did.
have told us that you went to this place;

You saki, « Th)e first time I went to him was
about aetm or «ght in the evening :^ how came
you to differ in your accounts P Which is the
true account, or is neither of them true P— It
is truth what I have sp^e.

It cannot be all truth, because they are dif-
ferent stories : wbal> time did you go to BIr.
Ward P->— It was in the day time.

IMd yoi» goto htm once or twice P— Once.

What did you mean by saying just now yoo
went at one o'chMsk, and again at eight r— -
I was with him twice ; it vita all in one after-
noon.

Then yon went two separate times to him,
did vou P— Yes»

How long did yoa stay with him the first
time P— I cannot tell rightly how kmg.

Bow came you not to say, when you were
examined before, that you went to him in the
day-time, about one o'clock P— 1 was with him
about one o-'dock, and I was with him at aeveny
eight, and nine.

Do yon mean that you staid with him frt>m
one o'clock to seven or eight P— No.

You have said. Hart, Howell, and Beckett
were there P— Yea.

Did they receive monev P— Not that I aair.

Are yoo sure you saw Lambert receive mo*
nay, or did Lambert tell you so P— 1 aaw Lam-
beirt take tbe money, and I saw him sign.

Dante/ Lambert sworn.
Examined by Mr. Buller.

What are yoo P— An apothecary.

Do you live at Hindoo P — Yes.

Do yoa know Mr. Ward P— I aaw btm
once.

WhenP— Inl773.

What part of tbe year P — In Feb. 1773.

Had you any conversation wilh him then P
—Yes.

Wliat was it about P--- He desired to know
whether I was a voter ; I tuM him I hoped I
was. He asked to know whether 1 would re-
ceive the favour or not, I told him I would, i
hope it will not criminate myself, my receiving
the money that I am going to discover.

Mr. Sevj. Dopy. Yon have no right to ask
him to that

L

16 <i^£OBGE III. Ti^ ifR. Smith aai4 T. B. Bogi^ Ufn. [1356

1S55]

Mr. BuUer, Whom did you see at Lucai's,
when you ivere wi(h Itfr. Ward ?— William
Peimy.
. Whom else ?— -I .cannot reoolleot.

Was ir at Lucas's that yuu sair Mr. Ward
first?. -Yes.

Whom did you see besides ? — Tbere were
Otbeis thi^re.

Tell some of them.* -I cannot, I do not
know ihein.

Was Beckett there?— Not as f saw.

Oi VVilham Bennett?— WilUam Bennett
came in afterwards.

Wore you at fiecketl*s .upon Easter-eve,
1774 .-»— Yes.

Wus uiiy money civen then ?— I suppose 1
shall hurt mvs^lf'if r ifivean answer to that.

M r. Mu Hsjield, You need not say .any tliiug
of any money i^iven toyourSelf.

Mr. Serj. Grote. But you may of any mo-
ney trheu tu other persons. — I did not see any
iponey pven to any body elM*.

Do you remember general Smith coming to
Hindon ?---Yes.

. When did be come? — On the 27tb of Au-
gust, J 774.

Was he kuowo to be a candidate before that
time ?--.No, a general Gold was known.

Who did that general Gold turn out to be ?
*•>. General Smith.

flow do you know that?-— By the rererend
Charles Humphries.

GeDeral Smith came himself first of all on
the 37th of Auirnst t — Yes.

Wiiiit passed then?- --He went to the Cross.

Who went with him?---A great crowd of
people.

Mention some ---Il(»hin Bennett was there.

Were the two Nairns there N--Yes.

What was done at the Crosn ?— >8onie words
arose at the Cross. Bennett said, One and all,
or none at alt.

Did any biuly answer that ?---Yes ; general
Smith hiinspjf. General Smith looked round
upon parson Nairn> and said, it should be one
and all.

Wji.s there any complaint made at that time
by any voter P---1 cannot recollect what com-
plaint.

Was there any?---I don't remember, not
particularly ; lie.si<les

Bt:si(les \% hat ?--- About one and all they hal-
lowed out. It shall l)€ one and all.

What was clone atlerw ards ^ when they went
from the Cross, where did they goi'---The
voters were ordered to |)nblic houses.

To what |Mili!ie- houses did they go?---Some
were ordeicd to one puhlic^house, some to the
other.

Did general Smith go to any of those houses ?
—Yes.

Which did you see him at?---The White
ITiirt.

Whst passed ihero?- -general Smith asked
them tor their votes at the next election. One
ThoinAs Kichardson was there, and said if his
t'li'jmi Nuirn had lieen as good as Itis woid, he

fittid not bare coiue to cauvas» Oixeu.

Was any thijig said wbtt Nain's word wat?
Was it explained what Nairn had aald ?— No.|

What did geneiml I^Ub ny P- Tbot kedid
not know but they were all easy : apoo wkich
parson Nairu put bis bat before RicbardsQB'f
face ; then captiiin Nairn and aome more 9i
tbem led general Smilb out of the room.

What was Richardson doing when br polUi
bat before bis face?— It was while he wm
speaking.

Was it before or after th^ bat woo pot np,
that general Smith said be thought they woe
all easy ?— Just at the same time.

Were you at Hindoo on the 8th of Odabff,
1774?— Yes.

Was there any err in the street then absil
flr<*nersl Smith?-— doe and all, or cbsM
Ssnith. was the crv in the strrets.

What passed after that? — A figure dreMsl
in disguise, or something like it, that appeared.

What disguise was it dressed inf — in ws>
men's apparel ; it passed by my Other's dssr.

Who were with bar ?*-«luhnStefens, Hagf,
and several others.

Can you nM-ntion any of the other perssi'i
names? — 1 cannot recollect.

Was Thomas Spencer with her ? — 1 briiere
be was.

Where did she go ?-*-! don't know ; I did
not follow her.

Was general Smith known to be a candidsts
before the time he came? — I heard so»

It was the talk of the town, was it P — No, 1
beard it by parson Humphries.

Was she m any disguise, or not ?— It was in
women's ap'iarel : I thought by its walk thst
it was a man.

Thomas Douglas sworn.
Examined by Mr. Serjeant Grose,

W'hal arc youP — An officer iu the excise at
Hindon.

Are you a voter at Hindon ? — I am.

Do you remember general Smith's coming
to Hindoo before the last general election .^—
Yes.

When did you first see him ? — It rois^t be
about two or three months liefore the electioo.

Do you remember in what month ? — I be-
lieve it might be in August. I saw him ^
to the Cross.

Where was he when you first saw him?—
Coming iu at the lower end of th'j town is a
carriage.

Who were with him? — I think both the
Mr. Nairns were with him.

What passed when you saw him at the Cross?
— He made a speech at the Cross, as gentle-
men generally do upon this occasion.

Reprtsentini^ himself as a candidate?- --Yes.

Do you recollect any complaint about that
time in the torn) in your presence? — Robin
Burnett at the Cross said, * one and all.'

Before or after the speech ? — AAer the
speech.

Was any answer given to that?-— Gencrtl
\*&\ii\V\!k laivi^vt ahoukl be one and all.

fit Brihtfy ai ihe ZBrAm BuUoh^ Jt D. 177&

iS57]

Wiio mtA with ^Mnl (Bmkb wImq be said
thit ? — I think the Mr. Nwnis oa one lidk of
him, emI Burnett ufton the other.

Were both tiie Niuras near bim at tbattime P
—-They were.

• Where did general Smith f^ from the Cross ?
—I think he weat lo Liioas*s ; but I am not
certain.

Did you see bim any where that day after-
wards P — I saw him at James Gaffe's, the White
Bart, upon the same day.

Can you recollect what passed at Gaffe's P—
Thomas Richsrdson was alongf with us at
Cufie's, he told the general, that if Mr. Maim
bad been ss good as bis word, be need not have
oome at that time to them.

Were those the very words, or only the pur-
port of the words ?«— The purport.

What answer was made to this P<*-I did not
hear any answer.

Was Mr. Nairn there P^Yes, wbUe Mr.
Aichardson was talking, Mr. Nairn put his bat
towards Richardson's race.

What was done then ?— Nothing more.

Did he go away immediatelyP— He went
BOOD afterwards.

Char lei Simptan sworn.
Examined by Mr. Serjeant Heaih.

Were yoa a TOter at Hindon at the last ge-
neral election P — Yes.

Were you at the house of general Hay ward
io the month of Pebmary 1773 P— I befieve it
was about that time, but 1 cannot recollect par-
ticularly the tavour of general Gold was distri-
buting.
- Dill you go there ? — Yes.

What time did you go there P—- 1 cannot re-
cxillect ; it wss in the evening.

Did you see a great msny people there P—
There were a great many |ieople at the door.

Did you go up stairs where the business was
transacting ? — i es.

What was doing there?— There was a man
sat by the table; I was to set my hand to
m paper, which accordingly I did.

Mr. Serjeant Davy. Yon are not bound to
giTe an account of what you took yourself— I
wmw a man there sitting at a table ; they called
him Ward.

What voters were in the room when you
were there P— Francis Mesde, Thomas Howell,
John Beckett and Joseph Moody.

What did Ward do ?— I put my band to a
paper ; 1 did not presume to read it orer wbe-
tber it was a note or what.

At whose request did you put your band to
the paper P— 1 cannot tell positively who de-
aired me.

What did you find in the psper P— Five good
golden guineas : 1 carried tliem home.

Did any body else sign the paper with you P
•— 1 don't remember any person did. When I
bad got the paper, my nosiness was done, I
woBt away.

For wmit purpose did you take tbi* moory ;

ntsi

was any thing nid to you in the room P— No^
no more than to si^n the paper.

Do Tou remember any thing passing on
Easter Moodsy 1774, the year ailerwards P —
At the George, William Lucas's.

What was your errand there P— It n as for
the same purpose : it was a goneral report that
the office waa opened at Mr. Lucas's.

Difl you go into the room where the busi-
ness was transacting P— Yes.

Did you see any votera there P-—Tboniae
Spienosr the carpenter, and Beckett the Inker.

Was any body distribuUng any thing P—
I know not who it was.

Was there any body P— It must be a sub-
stance, or else J could not have lifted up my
hand, and bad it put into it ; Tliomss Wpencer
ordered oie to aign ) 1 put my band orer the
door and 1 received a paper.

Did you aae who delivered it to yon f— -
No, I don't know whether it waa man, woBun,
or child.

Where waa the peraon whose band delivered
you that paper P— Invisible to me.

Was he m the next room, or where P— In
the fore room.

Did you see any body else take the money P
—No.

What did they give yon this last time P— I
carried it home, and 1 found five golden gui-

Do you remember general Smith '« coming
to Hindon P — Yes, 1 think that was ttie S7th
of August.

Who was in bis company ?— The two Mr.
Nsims.

Where did be goP— He went upon the
Cross.

I suppose a great number of people assem-
bled P—« A great ibany, both strangere and
votera.

Did Mr. Nairn say any thing at that tiose ?
—Mr. 8mhh got up and made his dedaratioa
that he came to offsr bimkelf aa a candidate
for the borough.

Did be say any thing about Mr. Nairn, or
did Mr. Nairn say any thing at all P — He hioked
about and said something, it should be cue
and ell.

But before that?— I cannot recollect, the
inhabitants cried. One snd all, or none at all.

Did the captain say any thing first P— It
was he desired it should be one and all.

What did the general ssy P- He said it wae
his desire it shoiild be one and all.

Was sny thing said at that time to explain
the meaning of One and all P--No, we knew
what it waa very well.

AAer this meeting wss over, did the general
come where you were P— He went from the
Cross down to the Geoi)^ ; he came through
the town afterwards.

Did you know who general Gold wss before
general Smith came P — He was called general
Gold ; we were very uneasy to know who he
was ; and it proved to lie Richard Smith, esq.
who lif ei at GhiitOD Mge uear Uuogerford.

1259] 10 GEORGE lH

Andrew Farrai sworn.
Eiamined by Mr. Popham*

Are you a Toter at Hmdon ?r— Yeo.

How long have you li?ed there P— Elefen
years last August.

Do you remember any thing about the dis-
tribution of faTOurs, or any thing of that sort ?
—Yes.

When was it?— On Eastc^ e?e irr4; I
never receifed any before that.

Where did you receive that ?— At Lucas's,
at the George.

What did you receive that for ?— To vote for
general Smith, as I apprehend.

Was general Smith's name mentioned to
you ?— Not as I appreiiended.

How came you to mention general Smitli*s
name ?-— It was reported such about the town.

Was there any other name mentioned?—
Not at that time.

What did you receive ? — Five guineas.

Who was there besides ? —Beckett, Thomas
Howell, Thomas Spencer.

Did you see them receive any thing?— No.

They were in the room ?— -Yes.

Were there other people there voters of
Hindon ?— Yes,

Where did"* you receive this money? —
Throagh a hole in the upper part of the door.
' Did you see the person that gave it you?— •
No.

Did you sign any thing? — ^Yes, some
tvriting that was upon a paper : I did not read
it.

Did those people yon have named receive it
likewise ?— Yes.

Did they sign the paper at the same time ?
— No.

Who did then ? — James Wyer a grocer,
Thomas Peuny a car^ienler, and Harry Savage
a breeches-maker.

Did you see them receive the money ? — I
saw them put their hands up to the hole.

Was any thing said about voting? — After
I had signed the paper, Thomas Howell bid
me put my hand up to the hole of the door ;
I iiid\ and received a paper.

What did he say more? — Nothing more to
tlie best of my knowledge.

Do you remember when general Smith came
to Hmdon ? — I was not at home then.

Did you come home while general Smith
was at Hiudvn ? — No ; 1 met him u)K)n the
road.

Were you at Hindon when general Smith
was there at any time ? — Yes, about a week
before the election ; I was not at home when he
came to liindon first ; as 1 was coming into
tovvo in my return he was going out.

Jeremiah Lucas sworn.

Examined by Mr. Moyscy.

Do you remember when general Smith came
just before the election ? — Yes.
You saw him ? — Yes.
Where?— At Mr. Lucas's.

Trials tfB.Snm and T.B.Hoais^fi4rf. [ISGO

Wbaft paswd .when yo« flaw hin then f—l
did not speak to him.

What was said to htm ?— He went up to tW
Cross ; and as he was going np the inkabhssii
cried, One and all.

What did the general nay to that ?— He
stood upon the Gross, aad be repcHUed iht
words.

He said, One and all ?-^Ye8.

Did be say that more than oaee ?— I imft
remember that he did.

Was it constantly lakl by the r&ltn, Qm
and all ?— Yes.

And did he constantly oaake that answ«ls
them?— Yes.

Mr. Serj. Davy,' Did he naj it OMre tks
oooe.°— il. No.

Bf r. Moytey, Did he constantly make thit
answer when they constantly aaid it P — A. Ysa

Did you say, One and all? — No.

Repeat again what general Smith asid.—
General Smith was up at the Croaa, and the is*
habitants cried, One and all. He stood ai tW
Cross, and repeated those words. One and si;
and he did not know but what they weiesl
made easy.

Were yon at the George upon Eastar Moi-
day ? — Yes,

Some money was given you ?-^Yes.

Who were present then ? — Thomas Spenev
carpenter, John Beckett a baker, and ThsMi
Howell. 1 do not remember any body cbe:
it was upon a Monday or Saturday.

There were some notes giTen, were tkoe
not ?— Yes.

Who gave notes?— We pal our hands tst
paper.

Who put their hands to the paper at tbessM
time ss yon ? — John Baldwin, Edward Bs^
kett, and' Robert Ty ley .

They all received the same money asyos,
five gu'meas ? — I never saw theirs.

George Spender sworn.
£]iramined by Mr. BuUer.

Were you at the George, at Lucases ?— Yd.

When?— 1 cannot recollect what time.

How long before the election? — Soae
lime.

What time of the year ? — I cannot uj
exactly what month it was.

What was done there? — 1 went up iotoi
chamber, 'lliere was a gentleman tlicre : tbej
told me his name was Ward : whether it ni
or was not, I do not know. He said, liis mosct
was out ; but he would borrow some. 1 pat
my hand to a paper, and he put a paper isU
my hand which contained five guineas.

Did any body elae receive any thing at thai
time ? — My son was with me ; 1 beliefe be it-
ceived the same.

Was it mentioned in whose favour this «tf
given ? — 1 donU remember that it was.

Were you at the George on Easter Moodaj '
— Y'es.

Who was there then ?— Thomas Speacer tba
carpenter and John Beckett.

i

1361]

fir BriUry at Me HmAm N^ig^

A. D. 177&

[18GS

What is Beckett f— A baker.

What was done Iheo?— 'We aigned a. note
then.

Was year SCO there P— Yes.

Did tie receire any thing P— I soppoaa he
-did ; I did not see hini receire it. We both
put our bands 4o a paper.

Do yoo remember when general Smith came
to Hindoo f — Yes.

Did jou hear the cry ^ One and all P'—
Yes.

Did you cry, ' One and all ?'— Yes.

What did you mean by that?— Thai we
alioold all be satisfied.

Had there been any uneasiness in the town
before ?— I cannot recollect any uneasiness.

Were ^ou at Hindoo on the Saturday before
the election P — Yes.

Was there any cry in the streets then P—
There was a talk of Punch.

Whom was that talkof Punch among?— I
cannot say who ; one neighbour to anotMr.

Was there any Punch came ?— In the eren-
ing there was something went about in dis-
guise.

What did that something do ? — He came,
and Elias Stereos knocked at my door with a
Jong stick. I held out my hand, and some-
bod v put a paper into my band.

Who pot that into your hand P— The person
m disguise, to the best of my knowledge.

What was in that paper r-^-It contained fire
guineas.

Reuben Burnet sworn.

Examined by Mr. Serj. Grose,

Do you lire st Hindoo?— Yes.

You are a roter, are you ? — Yes, I TOtcd
faMt time.

Do yoo remember general Smith's coming
to Hindoo ?— Yes.

Who came with him?— Mr. Nairn, the
parson.

Did the captain come with him P — I cannot
eay ; ?ery likely he was there ; I saw the par«
•on there.

Do yoo remember their coming to the Cross P
•--I do ; 1 saw them at the Cross : when gene-
ral Smith came to the Cross, he said he came
lo ofler himself for the borougbi and hoped it
would be agreeable to all : I stood by, and
oried, * Ooe and all.'

Was any thing else said but < Ooe and all ?'
•r^-Notbing at all.

' What was said upon that P — ^The general
Idoked upon the parson, and then turneo round
aod aaid * it should be one and all.'

Was this repeated ?— No.

Did several other persons cry out * One and
•n f— Yes, there were a great many voters
loond the Cross, they all cried, * One and alL'

Were there any words followed after * One
smI all P'^-Nothing mentioned.

Thomas Richardton sworn.

Examined by Mr. Serj. Heath.
Were you a voter at the last general dectioD
Ui Hifldon P—Ycs*

Do you remember general Smith's comiDir
to Hindoo?— Yes.

Where did he go?— To the Cross.

What did be siy there?— I did not heat
him.

Did general Smith speak to you?— Yes, at
the White Hart.

Who was in company with him ? — ^DanieV'
Lambert and Thomas Douglas.

Was any body else in company? — Yee^
one or two more, but 1 do not remember who
they were.

What did the general say to youP— He
asked me for my vote and interest. 1 said, iF
Mr. Nairn had done what he ought to have
done, he would have had oo occasion to come
canvassing the town that day. -

Was Mr. Nairn in company P-~ Yes, both
the Naims : the parson put his hat up against
my face, and said, Hnshl hush ! we most have
no more of that.

What passed then?— The general was
hustled oflr ; captain Nairn took him by one
arm, and aootner person took Nairn bv his
arm, and they bustled him ofL I took the
general by the arm, and said, Please to hear
what 1 have to say ; but he went off, and there
was 00 more conversation at that time.

Had you any conversation with him after-
wards P — He came to my shop another day,
and there he asked me tor my vote and inte-
rest : 1 told him as I did before, that if Mr.
Nairn had dooe what he ought to have done,
there would have been no occasion to have
come canvassing then.

Who was in company with him P— Par-
son Nairn said I was a liar, be bad pro-
mised nothing: I told him be was a liari
he bad.

Waa general Smith present at this conversa-
tion P — ^He was; he went back a little from
the shop-door, then another man whispered in
his ear, and he came back and whispered in
my ear, and said, Madam Beckford at Foqi-
hill desired her trades-people to support his in-
terest.

Was any mention made of what money yoa
were to have?— No.

Did yoo say what Mr. Nairn promised P— I
did not say ferther than what 1 mentioned.

Did you say what he ought to have done P—
That would have made the town easy.

What waa the conversation that passed P—
We gave one another the lie, and then said no
more.

Had Mr. Nairn promiaed you any thing?—
He had promised me nothing in particular, but
he had promised that every man in the town
should be made easy alike.

When was that promise made P— At tlie first
beginning of it.

What time was it you talked with Francis
Meade about thia money P— At Easter tfve.

Whit did he desire yon to say to them P—
He desired that those who had not received
money shookl sUy till Mooday, and to those
that Md, it {hjllM ^ flMd^ up ttft.

Wbo^asUifit

Who do;70« Uunk it

Wm il «itlMr he or eurtaoi N«n^-I A

MtkllOW»

imMifrmuft 177i» iw»»y a it B03 wmM
Whit wMi Qmrn^-^t

, Mm Bml^immmnh .1 What nid dw

EsL»|i«lhyMr.f^9a«i. Sotoft?

Ani<yM|JUvO^.«iHhi4MP«iM.Tia Did ho mofco

How long hrre yoa beoo • voter F—Whii
UMioorijo; liyojoiotMio liit rioOJio-
' Doyoa reflMmhar any omnm^t Waf !gi#«»f

At what tiiBor*^UjpOi FmwMoMli/l<ho
Oooivo*
DM. jMi.iooaivettiyf— T«% f hod

pftoerthoro.

^o# wieb did il lifiN

1 hWAJtithMfhtho holoooev I

DM yoitoooUiopwiOothotfweiiyoaf-**
lio.

Did yo« toe toy hhdjf di»imi#o Itf— Yoi^

JiodoiMhliMMii ttdomr^BodM oid Bolhrt
i-t —

\ DUkthofrigtoaMt^wilbiMir---^yotfr

Wbofo inooejr WM thiir— i 4Mi?t kooov
HMdhloMlellni^

Do yo« lOilihoK Of mhow wicohpiif Hoj
Ihii tMboP^.lVo^

Or olaogr olior thtoof^NoC npoo thol oo»

€MOt.

Whh(MOldkodroltooiho OMdidato lb« Hiii.
doo ot this thoof **'Otwrol Gold^

WhoMdi*irott o« thhl<WD» qnilMntooJ by
gootnd OoMf— We did ool oodoMood mj
hot tfao» it iroo gcinol^ Gold ot thU

Who did gooml Gold torn ool to bo ot that
■or---OcMiol8aiilh^

Wao apeoenl Smith oalled by onv othor
f-^Ooly glionrolGohl ond geooiolStrilh.

Oooi-eiaaiinod h^ BIr. Seg. Bwoy.

How do yoa know that general CroM and
gooerol Sraitb if the game persoo ?-^l under-
otood it to.

Do yoo know that there it Oct such a per-
oon ■• geoerai Gold P — I doo't know.

When yov heard of general Gold, yon had
not heard of aoy other person ; aAerwsrdi go*
neral Gold dropped it, and in hie stead oamo
geoerai South ; and then when goneral Smith
came you did not know but it was the same
person : that was all you knew of it ?-^Yes.

Mr. Popham. Did captain Nairn or parson
Nairn introduce any other person by the oame
of general Gold ? — A. Wben they came to
town they proclooed general Smith.

Thomoi Fenny sworn.
Examined by Mr. Morrii.

You live at Hindoo with yoor fitther?-—
Yes.

What is his name? — William Penny.

Do you remember general Smith's coming
to town? — I don't remember any thing of his
coming to town.

Dojroo remember any thing of his being at
year mtlMr%'r — Yes, abooi a week before the
omciion.

WlNtteonveraotion possed thofoP«<»»S9aM of

die f oton md| QttHmk^i

Did yao sipryooio?*— Yoo>
Who sigood with yoQf*hM'
RdhoiO Wyor^ ooAJoImi Wjmi^
They joSnod wtth vo« M o —a-o.

-W^

Lddoi^ lfc» WfcilrtBH

DM yo»9iO«f OdiiP^lbr llhi>«0lof<^1h|
fireflmooo. •-
Hod the^ ooythfaurf-wJ

toUe, Of f dhl, oaowlAf ' wi
of brown paper-

Woto yod ol
opoo Easier cfoP-^Yeo«

Who! pMod thoRP-^-'
there. *«

The some 00 k woo 0* Ho)QM»d*o r-^YhO

Who ofoio the piiio|iia that oigMdwUhyd
■ there f-*»Aodnlt, Fiairaly Hoary- 8taiO|^ ml
James Wyor.

Who were Hierohoriioe^^llooim, fl|pM
and How^.

How did they oet P-^oba Beckett hq^ •
wrilhig«

What did Speoear doP— I imogiaehili*
the notes wo signed.

What did Howell do?— He was there.

But did he act at all P — I cannot reoMote
that he did, but he was in the room aloog oilk
them,

T^omof Afoore awom.
Examined by Mr. Ifoyoiy.

Do you remember being ot the Angd it
Hindon just before the election ? — Yes.

Was general Smith there P — Yes.

Do you remember any cooTorBOtiMi that
about the election ?— Yes.

What was said ? — I asked the gencarol oljf
he had not made all the roters olikeonoaadd;
he said he meant, one and all, oud it sbeoM li'
done and soon. . .

Do you recollect upon what day this oi|f
—No, it was some time in September.

The September jost before tho eleeiisoP<^'
Yes.

What was said besides ?— Ponoo Na^ Hfk
me by the hand and desired me to piueetd 10^
farther, not just then, for the general ani bto
would wait upon erery man at hip owo hitf
that had abt received the iovoOTi ^^

DM he say aoy moreP^Mr; Mmoi INkJM.

letfo end wool owoy direellf*^

Bws}

fur Bribery at the Hindon Election.

V/u Ihrre any ihinK more said by general
Smith at ihal limef— Not as 1 remerobcv.

Ytm saw Mr. Nairn atierwarilB, did aot yuu P
— Yea, opposite the barber's shop.

Wb«u was this? — Tha Snlurday b«fure the
clectioa, wbich nas upon s iUund*y.

How soon aller llial meetinj; was it? —
About a week nr ten days: I asked him ivhj
hediti nntmakellieo] all easy, he saiilil should
be (lone •luon.

Did lie say any tliini;

How soon ^fler this rt
Punch danced ? — The same eTening, I believe
1 did not see Punch.

Cross-examined by Mr. Serj. Dupy,
^Tlio tvas in the room at tlie An^l, b«iideg

Siu ami general Smith anil Mr. Nairn f —
eury Huff, John Hooper, Robert ftawden.
Who besides ?"These were some, there were
others; younif Henry HufTwas there, and I
believe one urthe ISIevens's was there.
Was Penny there? — I believe not.
Or Lambert ?~ No.
Or Douglas?--! don't recollect thai he

I belicTe Sim pson was there, tvas he not? —
I eanii'it remember.

Was Andrew Farrat or Spender there ? — I

Or Rofiert Burnett or Thomas RichardBOD ?
— Thoma» nirhardson was not there.
Thomas Penny ?— He was not there.
There were a great many people there P —

A.D. 1776. [1266

general ; and ihervlbre 1

Anil ihta was «i
great many peoph

■-Yes.
They all heard it theo a

hearing of i

But what vraa said by the barher't shop no-
body heard hut yourself? — I don't know that
■ny body might ; there was Lufce Meade stooil
close by us; whether he heard what we said I
cannot tell.

He was near enough to hear without listeo-
ing, was be ?— Y'f s.

Etiai SCep/itni sworn.
Examined by Mr. BulUr.

I any time lo yonr
Beckett and the

Did general Smith con
boose at HindonP — Yea.

Who were with him
Nairi

What was said by general Smith to you.' —
He asked me to gire him my vole at the next
elcclioo ; I said J would not promise him ; he
Mikeil me tor what reason ; I said because he
hail aot been as good an his promise ; saiil he,
what do you mean by that, I don't know what
you mean by it ; the general popp'd back, and
then Nairn said. As sure as God is God, etery
thing shall be to your expectation.

Which Nairn was that ?—The parson.

Did yuu tell eenerat Smith what the promise
wna ihst he had not been ao good asP--l can-
■ut Hy whether I did or not. 1 loU Itim tba

town were uneasy

should not promise my rote.

Cross-examined by Mr. MmsJieU.

So when you said he had not been as i;oodM
his word, he asked you what you tucunt by
lh«t?.-Thepaninndid.

What did general Smith say to you?-— No
more, only asked lue for my rote ; and when 1
told him t would uoi promise him, then he
struck out at the door, and then it was parson
Nairn spoke to me.

Mr, Buller. Was it to general Smith or lo
Mr. Nairn that you saki you had been deceir-
ed ? — To parson Nairn.

Was any ihiiiK^id about your being deceived
berore general Smith turned out P---No, I told
Mr. Nairn the luwu were uneasy : he asked ma
what I meant hy it ; I told him it was report-
ed that SOOor 5,000 guineas were In he ijiTen
al separate limes, that it was to he given lo the \
town all in general, that they had not been ao
good as their word, and therefore 1 would not
promise my vote.

That then he used the expression, that, as
sure as God is God every thing should be lo
your expectation ?— Yea.

Mr. Serj, Davy. General Smith heard OO'
thing of what you had said about being deceiv-
ed.'--.No, he was gone out at the door.

Was it bel'ore general Smith went awav that
Mr. Nairn said. As sure as God is Goil you
shall have no reason lo complain ? — No, it was
atler he was gone out at the door.

Court. Do you know where general Smith
went when he went out of the bouse? — He
weni lo every voter's house.

Did he wait (Tor (
take upon me to say
cause I was in the finuse.

Mr. Serj. Davy. He had a great many peo-
ple with him IJesides captain Nairn, had he
not )— Yes, he had.

The Evidence in snpimrl of the Inforroatian
being closed, Mr. Serjeant Davy madeaSpeecll
to the Jury in defence of his Client, but did
not call any witnesses.

After Mr. Baron Hotham had summed up
the Evidence to the Jury, they returned a ver-
dict, finding the Defendant Guilty of the
Charlie alleged in llie Information.

The remainder of the Record in this Case,
as regwrted io Douglas's Coolroverted Elec-

" Whereupon the Kaid Attorney General ofour
said lord the king, who for our said lord ihq
king in this behalf prosecuteth, fur our said
lord the king prayeih the consideration of the
court here iu the nremises, and that due pro-
cess of hw may he awarded against him the
said Richard Smith in this behalf, lo make him
answer to our laid lord the king touching and
concerning the premises aforesaid ; whetctw*
lbe»iiet:iff^M'tb«Mi&«ttA^<:i«)iV4i'&^'««>-'<*^^'-

«nid Eiwui "hinlnr, CMnkv, mhm pr»-
■Mb Ibr- oar iM hri lU^ in tMi to-
r,dMhtlMKh*i ThmiiR»lcl>jn;lhac>
« caOM WonaMTMU lird Dm kMV.N tbe
w« of IbB MriBnliMi or ibi U«Md Tim
Muy, •rbmMcm ta ikdl tbt* bt !■ Em-
Jh< bj' wbMB tlw Irwk «r tbc mHUrwy bs
•tba bMw Iratin, «ni wba um aot «f (ba Uv
r 4nd «r Iht mM WdMrd SoiA, to try bbm
4b^Mth vbaAardMMid BUud aiiOikt
fMlqr af dM movM ifbmaM ar Mt: bt-
now u wdl uewd E4mrd nariaViMfifaw,
whmfnmtMmkttrmrmUi lord Ibc Uw in
fUtWMT. H tba ntd Biefaaid teMb. im
IbafwapOB pM dmntdTM mMi the ndd jnrv,
ibeMOMday b girai m wall M lb* Mid Ed-
ward Thoriaw, aiquira, wbo proMoaMb ftr
Mr nid bid tba biBff nilbia bdMir, M to (h«
wid Ridud Smilb ) it wbkb nil tiow (u
«ii) aa Aa aotava af tba Purifleitiaa of Um
■Waned TufioHarjabiMiid, bafen an add
brdtbakuffu WaHiniMHrcwa m wril ih»
«U SdwanTTbariMriMDoin, wbopracoaMb
4br Mu- Hid bM^tta kinff iD &ia bAair, « iba
■aid BiclMid SaAh bybiaattanHjaArM^i
Md tba Aettf «f Aa Md cMo^ af Wdta r«-
• toroed Iba oaiMa of twain jurora, nooo of
wboin Goaie to try in fiimi aforcMid, ibcrafiira
Um sberiff at tb« aaid codhij of Wiha ii com-
Oiaiuled tbathedooot forbmrby reiMworanj
li|iert> in bu bailiwicb, but that he distrain iba
jumn lut afbrenid by all thdr landi ud clut-
iIm in bia bailiwick, n that neither ihey, nor
any une for them, do put their baodi to llie
aaine, ontil be ihall bare aootlier GoninM4id
fiwD oar laid lord the kiay for thai purpoae,
«ad that ba auwrr u our aid lord tbe1[ii4( for
ttia iMoe* iberccrf*, ao tfait ha may bare their
bodiea before our mIJ Imd tba king, in flftcMi
4ayi from tba feot diy of Eaater, whereaoeter
be ahall then be in £n);land, or before tba jiu-
ticea of our wid lord the king Hiigned to bold
the aMiaei io and fortheuid county of Wilts,
if they (haU come before that time (that i« to
Bay 1 on Saturday the 9lh day of Blarch next,
-at New Saruni, in the aaid ooanty, aoccrdins
to the form of the ati Urte in that caae made and
IHorided, to tn iraoo their oath whether the
Mid Bicbard Smilb be goili* of Ike premiaca
" >riMM,iade&ult«f the jurorealbn.

n the aaid county tiava

Iba bodiaa of tba aame juron Bceordinrly to try
to form aHuMalH : tba tame day U giren, ai
waU la Iba nid Bdwaid Tharlow, aa^ aire, wba

'1967] MGEdRGBUl. t^tat^S.8mikndT,BinaKtimtn. fMl

BMaomadiftr awjaU lard dM Uh ta Aa

EaUir,afWtbaMUBkhBidBiritt; MwWk

" ItanAaftMte

'sas

wmM Ibat be abauM net Ibrbaar bj rmao of
bd; liber^ ia hU baBwicfc, bM «M( be abawM
caoae Un to oano lo anawar to oar mM lord
tba kiK tooeUar aod eaDcamiaff Iba prenuMi
'lAnaaSl. And mw (that te to nyVoa Tbta-
4ayiint after Iba oetarc oT BiiDt Hilary, ia
tba MBta tana, before aar mM bnd Ibafa'ar at
Wartmtaalar eHMb Iba aaid fUabard sSib,
kj Wmkm Sidcwiok bb attorwy, uul bariat
heard A* aaid MbnMtioB taad, ba-aailb tbai
ba ir Not OaMiy ikmat, wd

Mke.wUpiiWaiMhlbt— M
- '- ddibaktf. ■aikaaf'-' "=-'-'

britbaUarbi _ .

SaAb by bb attacM* abraaaU *- a^ Ik eba-
■Md jMib« aC aaAa, bofoi* whaa da ail
jmj aama la tnr ia turn afbrtaaii, and baa
tboK raeard ba/b«lbrr than in difae ««rii|

rbMaartaftnwafda, on iha day Mia
ptaaa tm wilUa mentioaad, batbe *
Janta Byn^bobHaaleir BeaMMStBal' ~
kaigbt, two of tSa boNM of hb MpeanHii
tfERbMoer. JoatfcM «f wn- eaMlerd the
•ii^ac4 to Md tba iMina in and lb
aaoaiy af mUa wiikb nwniioMd, acawte
tolbafanardwMMe ia awcb aMoMf
udpntidad,aanaae wdl Un wiikhi-aapH

aariM brd Iba Um ia Uib^di^ « Aa
vUilaaMadBbhnTsMih bjUaaaMV
wilbia— ibaalt and the jorara wTtbepot
wbnaar then b matioa witbia owdr, Uf

oaDad, aena af tban Ao wit) William B«aiNl
orNartoaBa*aal,«Mira,IticbBril Souitibj^
B^foH, aMir^ Wilfiain Hajter »f Nt-M
Ttitfj, cBHtta, Tbonaa Hoore ofDaniofm,
aaqiriK, FtaaM '^'i'*'' Astley uf Etaiff.
aagriia, and Jafaa ttkitelock of Eattndf,
caqnira, oana and ara aworn upon the ait
_. .. "^-reatof the aaid jurt*

■Dt appaar, ibaraftia alhere of the bj

oin, by tlie
Iba nid jaaOeea are anew appointed, mhm
naoiaa are alEled in the paooel within wriaa,
•cconliug to the form of tbe statute ia wck
caae made and protided ; and the jonn *i
Btiew appointed aa aftresaiil, (lo wii] Junt
HsDCOck of Smallbrook, Edward BracbatT
Stockton, John Fenia of Warmiasier, Jiki
Ford of Fotleme, John Jerrard of F'uuthill GH-
ford, and William LawrpQce of Altlerbory. be-
ing called, likewiic cotae and are sHoto ufM
tba aaid jary ; and ltivreu|>oD public pradi-
DMtion bong made for our siid lonl ihe bf,
aa the custom it, thai ti' any one will jnftn
the jtwtioea' afbreaaid, llie kin|;'« t^rjaOi »
taw, the king's attoroej genera), or liie JH">
of the jury aforesaid, CODcerDint; the nailM
within contained; he slioulil coiue fonb, m1
should be beard . sod herFupun Nuh Gif.
aeijeaolatlaw, oflcrelhliinwpit' on lbs MU
ofouraaid lordtbebiofl to doihis ; irbn«a^
Ihe Court here proceedpth lo lake ilie oM »■
^iieat by the jnrora aforEKaid, now here appW'
ng for the parpeae aforeuid ; nbo bM4
eledad, tried, and awtiro to speak tk* M
OoocKning the matlen wiiliin coniaiiii< aj
nnto their oath that tbe said llictiaril SbM m
Guijtj of the premiaps, in ibe intbtissii*
within specified and f liarged uptui biMk *
manner and form as in and by the said lalk-

■still !■ within ■ll>gpJ ^;n^ Lj^a '

J

laro]

Jw Bribery at the Hindon Election.

A. D. vne.

[1270

Proceedings against Thomas Brand
Mollis, Esq. for Bribery, upon
THE Information* filed against

HIM BY THE ATTORNEY GENERAL,
BY ORDER OF THE HoUSE OF COM-

MONS^ 16 Geo.S. a. d. 1776.

Coutuel for the Crown, — Mr. Sen. Dary,
Mr. Serj. Grose, Mr. Serj. Heath, Mr. Pop-
turn, Mr. Morris, Mr. Moysey.

Ctmnulfor the Defendant, — Mr. Mantfieki,
Mr. Buller, Mr. Batt.

Mr. Moytey opened the loformation. After
which, Mr. Serjeant Davy stated the facts
upon which the charge against the defeodaot
vat foanded, and then the Counsel for the pro-
•seatioB proceeded to examine the witnesses.

' A Copy of the Writ for the Election— of the
Rstani— ^ the Precept— and the Poll, were
pradaced, as on the former Trial.

JVonca Meade sworn.

Examined by Mr. Serjeant Groie.

I>o you remember Mr. Hollis coming to
Biadoa ? — Yes, a month or six weeks before
tbe eleetion he was with one John Stevens, a

What has passed concerning Mr. Hollis and
in your presence P — I was* billetted at
Swan, *the aame as the rest of the Tuters
I, I believe, by Henry Huffe and old Ben-
jMaia Cholsev; Mr. Sevens said he had
troorbt a gentleman to propose to the borough ;
I IsM bim I thought he had no right to pro-
Me a gantleman.

What Stevens was that? — Jobber Stevens.
Did you ever see Mr. Hollis before?— No,
irtioee ; I saw him at this time at the Cross :
Mr* Hollis said, he was a gentleman of honour,
ttid that be would be as good as any gentleman
tkftt should come to the borough : then there
waa a cry, ' One and all :* Mr. Hollis said, It
glinnid be one and all.

Did any tbin^ else pass ?-~Nothing more.
When was this ? — About a month, or there-
abouts, before the election.

Was Mr. Hollis known at Hindon at that
liaMf-.4>oly hy the representation Stevens
If e of him ; he was a stranger in the borougb
that time.

£7

Do you ever remember Mr. Hollis's saying,
W9 aboold be satis6ed ?— 1 think Mr. Hollis

aos but I cannot be certain to every word
tbfti paased, it being so long ago ; he said it
MJionld be one and all, and 1 think he said,
tlMj should all be satisfied.

Do yoo know4if anv money given bv Mr.
JBolUs or SCavens?— Not of my own know-

*Tbs Information was the same, mutatU
^Mf swrfiii wUh tiiat agamrt Smith. Seep.lSST.

Cross-examined by Bf r. Mansfield,

You were a witness before the Committee of
the House of Commons ; have you been a wit-
ness io any other cause relating to Hindou ?—
—Yes, on the trial this moniing.

Any other? — 1 was called io once before tlia
House of Coromoos.

Aye, I know you were before the Commit-
tee, we have an account of that, and shall never,
forget you. You tell us Mr. Hollis said, he
was a gentleman of honour, and should be as
good as any gentleman that should come to the
borough ; then there was a cry, * One and all?'
—Yes.

How came you to say Mr. Hollis said so?— ■
Because I heard him.

Was any thing said, what one and all meant,
anv thing said about money ?— Not a word.

You think there was something said about
being satisfied : will you swesr there was ? — I
cannot take upon me to say so ; 1 believe it.

But will you take upon you to say it ; or that
there was a word asid about satisnction ?-r-i
cannot

Whom did you vote for? — Calthorpe and
Beckford.

You had none of this charming money ?— «
Not a farthing.

Daniel Lambert sworn.

Examined by Mr. Serjeant Heath,

Do vou know Jobber Stevens ? — Yes.

Had you any conversation with him about
bringing a candidate to Hindon ? — I heard him
say that he had a friend to bring to Hindon, if
it was agreeable to the town.

To whom did he say so ; Uf you or to any
other person ?— To other persons.

Were they voters ? — Yes.

Do yon remember BIr. Hollis coming to.
Hindon ?— Yes.

Wss Jobber Stevens with him when ha
came ? — Yes.

Where did he go when he came to town ?—
He went to the Cross.

What did he say there?— I cannot tell; X
was not handy to him.

Did you hear Jobber Stevens ssy any thing
to him? — No, I saw Stevens get upon the
Cross ; but I did not hear what he said.

Were you billetted that day ?— Yes, at the
Red Lion.

Who ordered you to go there ? -<-l believe,
one Huife.

Did Hollis and Stevens come to you to the
Red Lion ? — Yes, Mr. Hollis came to ask our
votes for the genersl election.

How many voters were present?— Ten or a
dozen.

Do you remember their names ?— No.

What answer did \hey make? — They said
they had no objection, if he would be as good
as any other gentleman ; some said it must be
'down and down.' Mr. Hollis said, he knew
the meaning of it. ^

Did he say any thing besides ?---Notlliat 1
recollect.

If713

Was aoy thing else said by the roters? — I
cannot say there was.

Was Air. Hollis known to the town before
he came there ? — No, he was a straucper.

Was there any mention made, when it was
to be down ? — Somebody made answer^ * It
most be once within a week.'

Did Mr. Hollis say any thing to that? — No.

Do you know of any money being distri-
buted ufton account of the election ? — Not upon
Mr. Hollis's account.

Cross examined by Mr. Batt,

I understand you, that upon the Toters say-
ing to Mr. Hollis, * It must be down and down,'
he said he knew the meaning of. that expres-
sion : do you mean to swear, thai Mr. Hollis
said, upon that being said by the Toters, that
be knew their meaning? — He said so.

You are very sure he said so in these words?
—He said so.

Who were present? — Seferal people in the
room.

Mention some of them. — I cannot recollect
who were in tlie room ; there was one James
Gilbert there, I believe ; William Prior, I be-
lieve.

Did Mr. Hollis say this loud? — Yes.

So that all might have heard it that were in
the room? — Yes, I think they did.

How came you not to swear this before the
committee, when you were examined upon this
subject ?>—yery hkely 1 was not asked the
question.

But you were asked what Mr. Hollis said :
How came you M>t to give that account to the
committee?— I don't know that i was asked
the question.

Mr. Batt, You were not asked it. Now
you were asked to tell every thing that Mr
Hollis said, and you made use of no such words'

Reuben Burnett sworn.
Examined by Mr. Popham,

Are you a voter at Hindon ? — Yes.

Do you know Mr. Hollis? — Yes.

Do yon know Jobber Stevens ?— Yes.

Do you remember when Mr. Hollis and
Jobber Stevens were together at the Swan at
Hindon? — Yes. "

How long was it before the election ? — I
don't know, it was a little while before the elec-
tion.

Was that the first time you saw Mr. Hollis ?
—Yes; when Jobber Stevens first came, he
said he had brought a gentleman to represent
the borough of Hindon, and he hoped it would
be agreeable to ail friends. Mr. Meade stood
by ; he said, Has the gentleman got nothing
to say for liiuiself ? Fie stood back, and the gen-
tleman came forward. Mr. Hollis said. Gen-
tiemen, 1 came to represent the borough, and
hope it will be agreeable to all friends. Ed-
ward Piercy said, Down and down: Jobber
Stevens said, in regard (o down and down, it
would not be wautdl.

16 GEORGE lU. Trials ofR. SmUh and T. B. HoUis^ esjn. [IIK

Was Mr. Hollis preMOt at that tune?— Be

was.

Cross-examined by Mr. BnUer,

Were there many people then at the tisK?
—Yes, ther^ might be half a aeore^ or finrtea
or fifteen.

All talking together ?—-Tes9 when the g«-
tleman came in.

Was Lambert there ?— 1 don't reoottcct hit
being there, hot be might be there.

What house was this at P — ^The Swan.

What was done with Piercy, when be oii
Down and down ?— Bec*lcett said, if yon dt wa

five the gentleman liberty to apeak ior
will kick you out at the door.

Was not Piercy tamed out of the
upon saying it tnust be down and dowaf-4
do not know that he was.

Did not you swear before the eomnullH;
that Piercy, when he said that, was ord«ed srt
of the house ? — No.

Was Piercy ordered out at all?— He M
ordered out at the time.

When ? — When be said, Down and dsvBt

Who ordered him oat?— Thelandloid. Jib
Beckett, because be did not gi¥e the gendmi
liberty to speak.

Where was Mr. Hollis when this was Mi?
—Id the same room, the kitchen.

And most therefore hear this. Hew ma
was he to Stevens when he aaid that weoyMl
be wanting ?-*A little distance.

Did Mr. Hollis bear Stevens say thaiesdi
not be wanted ?— I don't know that he did bar
it.

Was Mr. Hollis as near to Sleveaa asja
was ?— No, he was not.

Was Mr. Hollis near enough to Slevcsf •
hear ?— He might be near enough : he nifk
hear it, or he might not.

Stevens was his friend? — Yes.

Did you ever see Mr. Hollis there
Jobber Stevens ? — No.

Andrew Fdrrat sworn.
Examined by Mr. Moysey.

Do you remember when Mr. Hollis
Hindon?— Yes, the 39th of August 1774.

How did he come ? — In a post chaise.

Do you recollect who was with bim?-Wiii
Stevens, the butcher.

Any body else? — And another gentkflUi
unknown : tliey came there in a chaise.

Did you see him when you came ts Ihi
Cross ? — Yes.

What passed at the Cross? — Mr. Holliiaii
he was a gentleman recommended by Suvtft
the person who was with him.

What else did he say ? — That he cane «•
candidate to the borough.

Did he say any thing more ?— Yes, br td
he was an honourable gentleman, and be
always behave honourably by the tovni.

Was that all he said?— 1 don't lei
any thing more.

What did the people aajr f Sots fSt^

I

1273]

f^ Bribery at the Hindon Eledhn.

A. D, 1776.

[1274

cried. One and all : Jobber Stereni said, they
had no caute to dispute that : I don't remember
any thinii^ else that was said.

Was Mr. Hollis present ? — ^Yes, dose to him.
So there was a great hollowing of One and
all.— Yes.

Was that explained ? — Not then.
Where were you quartered ? — At the Queen's
Head, William Penny's.

Were there many people quartered there
besides you? — Eighteen or nineteen voters.
Were you at the 8wan that day ?-«-Yes.
Was Mr. Hollis at the Swan ?— Yes.
What passed at the Swan P— Mr. Hollis and
Mr. SteTens came there.

What passed? — ^They asked the Totesmen
#i»r thf ir totes and interest.

Which asked the voters for their votes and
interest ?— Stevens first asked ; be said it was
m gentleman that he recommended to the
borough : Franois Meade was present ; he
said he did not know that he bad any business
to recommend a gentleman to the borough,
and asked Stevens if the gentleman had any
thing to say for himself; Mr. Stevens drew
back, and said he had.

Was any thing said ?— Yes, the gentleman
•aid, he was recommended by Mr. Stevens;
that he was an honourable gentleman, and
wnold always behave good to the town, and
woold be as good as any gentleman.

Was any thing more said by Mr. Hollis or
Mr. Stevens ?— No, not that I remember.

You were at Salisbury, I believe, just after*
wards. — Yes, the Friday following.
-Did yon see Stevens there? — Yes.
What did he say to you, or you to him? —
I was coming along the street; I saw him ;
1 asked him when he would come to Hindon,
Ihat Mr. HoUis's friends were very uneasy.

What did he say to that?— He said he
«honld be there in a short time ; for he had got
every thing In order to bring ; he said ne
•houtd not be there himself, but he would send
some friend who would answer the purpose as
well ; I was going away ; he called me back
again, and told me to give his compliments to
Mr. Lucas at the George, and desire him to
meet a friend of bis at the White Horse, next
night.

Whom does the White Horse betong to ?—
One William Harding.

Did you go there?— Yes, I went, and deli-
vered my message to Mr. Lucas, and he sent
ma there; the next evening two gentlemen
came in a carriage to the W bite Horse ; I went
to the White Horse ; when 1 came to the back
part of the house, there were a great many
people there; it was a back-house ; sometime
after 1 was there I got in, and went up into a
room.

Whom did you find there?—! found one
Barry Hotfe, a baker, there, and Jack Stevens,
a brother to Jobber Stevens, and an unknown
MaUeman in black. They ordered Thomas
Steveoi Hagg, John Edwards a Uboorer, and
JaoMs Lambart, and myself, to pat our naniei

to a note ; the other three made their marks ;
I put my name: the gentleman said,' it did not
signify, as they could not write their names,
but they knew what it was for.

How much money did you get ?— Fourteen
guineas, and two half guineas.

Did they all get alike?— Yes, as iar as I
know.

What was the manner of giving the money ?
— ^Through a hole over the door.

Did these other three people you mention
put up their hand to the hole too ? — Yes, and
received the money in the same way.

Cross-examined by Mr. Mansfield,

Whom did you vote for ?— Richard Beckford,
esq. and general Smith.

Did you ever tell any body what you would
swear concerning Mr. Smith and Mr. Hollis?

—No.

Then you never said, that yon would be re-
venged of Hollis and Smith, and jrou would be
damned if Beckford should not sit m the Honse?
— I never spoke such a word.

You know that was sworn about you before
the committee.— Yes, but it was very false.

There was a false thing awom about you P
—Yes.

But every body at Hindon believed you said
so. — No, they did not.

The people there were so cruel to yon, that
they believed you had said so?-— 1 do not
imagine they did.

Yon know John Fricker ?— Yes.

Had you any conversation with him about
it ? — Never in my life.

That was fol&e too that was sworn about
you and Fricker ?— Yes, it was.

Then a great number of your neighbours
traduce and speak ill of you, and all without
cause. I dare aay you have a good memory,
and let nothing slip that you heard said. Now
Mr. Hollis began by saying, I am an honour-
able gentleman, and that he was recommended
by Stevens ? — Yes.

You know he was recommended by Stevens,
they came in a chaise together, and before Mr.
Hollis spoke, Stevens spoke ; and then Bed^et
desired to know whether Mr. Hollis had not
something.to say for himself : so Stevens makes
a speech, recommending Mr. Hollis; upon
which Mr. Hollis is asked if he has not sooie-
thing to say for himself, and then he says,
Gentlemen, I am recommended by Mr. Ste-
vens ? — Yes.

Mr. Serj. Davy, Where were these 15
guineas given you? — At the back- house bo-
losging to the White- Horse.

John Baldwin swora.
Examined by Mr. Serj. Davy.

You are a voter at Hindon ?-^Yes.

Do you remember Mr. Hollb's oomiDg
there f—Yee.

Who cama with him f— Jobber Stevens, who
lifes at Salifbary.

isi»3

ISOBOBaSIlL TrUt^a,atmmiT.

WiMra M.tbtj f»fL~TlMrr hmH to th«

Crni fini, «i4 oAinraiid^ 1 Mcftp thay ^MB^
t> the Owifi,

Ym 4M*t kMw wiMt pMMi at Iba CVMi N-*
1 tei^ kBMrwiMft Mr. Halfii Ml.

That WM tlM plMs ar Mleltiiif • I beliaf e.—
Ha toM tlw aaopla thnr tlMaM ga ta Iba aaoM
thay Mi Inm Inllalldl ta Iba aatvday

flvaar
BaWaauMtatha^
— Mr.HaMwawl.ba
lapai ba

il«atearit.» Tbqrtrid
tlMia waaMba aa Ite

Which haow waa ya« Mhttail taf— Tha
Raw and Crows.

Who caflM to yaa at tha Rota aoii down t
—Mr. HaUit
IdidDatkoow,

Was that tha aaaa da v Mr. HaUio aaoaa ta
thatowafiratf-^lte.

Whatdid Mr. Htdia aa j f^That ha
taetoTan the toini;aod hahapadha thaaW
Had ftinds ia the taav: tha vatnaaaid, It
■Mft ha aea and all; JalAir Btapoai, I tMak
it vaa, aaid, thare waa aa doaht

Was Mr. HoUk artacnt whaa that waa laid r
•v-Tasy aaa Joseph Lanh a later asid» tha
aoaacr they had the dese tha aoMr it woold he.

Did tha paaplaiay any thiayabaat plsyiag*
«pf— The voters tald hm, if ha trould play-
vp there woald be BO fear of his slociiba | Jo-
aeph LamKsald, tha sooaer they had tha dese
thaessisrit wooMbe; Mr. Uollis or Staveas
a^d, there woeM be aa daobt of it

Were the words last ■JeatioBod sold either by
Mr. HolKs or Bteveao, that there woold be«o
ionbt of it» spake louaediatcly after Luab's
aayiofp, the sooaer tha dose the easier he woald
have It f — 1 esanot laeoUoot ovcty word*

Do yea remeaiber afterwards beinff at tha
Whlte^HorseF— Ido.

When was that?— The Satnrday nigbtfol-
lowiog that.

The White-Horse is Rsrdiog's?— Yes.

Who were pr«eeDt then ?— I cannot recol-
lect.

Who drew the notes?— Those who were
in the boose ; there was Benjamin Cbolsey the
elder, Henry Hofle, Jacob Stetens, and ano-
ther roan I did not know, who drew the notes.

What notes do yon speak of? — I don't know
what the notes were, I never read them.

Did you put your name to the paper ?—
Yes.

And what faToor did yon receiTe ?— The &-
vonr of 15 guineas.

How did you recei? e it ?'-At a bole or er the
door.

Did any more sign that note besides yon ? —
Yes, three more; William Brookes, John
Sterent, and Imuic DotIs.

Whom did you rote for ?-*Hollis and Csl-
thorpe.

How Wis the money ffiTen ? Wasitconnted
out to yoa, or how P— It wss twisted «p in a
" ofpaper« and pot through thia holeintomy

kwaaMbltaBd

pliid, there waa Badaaht af thsL

aMTCBBaa XJMaa

EnauBod by Mr. 8eg. Gnm

Da yen waisBiksr Mr. BfOM
HMMtaaf-^Na.
Whea M yoBsea him r-^at liB jM

Did JOB gala tha WhUa-hataar— Y«
WhM/-Aj| -

Woaaay hady with yMf^-A
peaphn.

iKd yaa leedta aay thiag thaniP--A m
panad Beta, aad flvc guiMaa asd b kBi(«ll

did

Did JOB pam lor a

Mr. Bail^. YaBrehaifa n Hhs

ttOBH,

Mjm

CrsBi eamined by Mr. B^t.
Tharoappaam to ha

in the

Mr. fieri. Davy.. There mai
peraoaa daiaMBT a right la

Yen neeifad tha Maas
signaaotaf^Yca.

Who roosifod aay tfaiw with ywr--I Ml

iwe^Bosr uiB BsneDss iBerB wene iBeiBBeo

sides oso signed the BOte^ bat I aaBBaliaH#
ber either of them.

Upon whose aoooont did you reecifa tUi
money ?— Upon the behalf of Mr. Hollis.

Mr. BuUer. Was there a word said dbm
Mr. Hollis ?— Yes.

By whom ?— A hundred people I beliete,

Do yon recollect any of them ?— No.

Did not you swear before the ooeHaittM^
that the major (lart of the town told yen, iha
vou wss to receiTO the money at the WbiB-
horse upon Mr. Smithte account. Mr. flsii
wss not there?— No. ,

Nor waa Stereos there i — No.

Richard Ingram sworn.
Eiammed by Mr. Seij. HcafAi

Were voo at thia Wbite-horaer— YeOi

What for ?— To recet? e a fiiroor.

What were you to raceire tbmf— FMhI
guineas.

Upon whoee aoooont ?— There wasaa HBi
mentiooedl

Whom did you eee there? — One JbbS
Datis, one Henry Hulie, and BwgamJBflrf'
sey, thooe I remember; thera ware sanii
more in the room, but I doB*t raesllaet thua

In what manner waaitgif aByBof-*- lbMl#
a bole over the door.

Did yon heor Jobber Slavaas aqr «qr Mr

Jbr Bribeiy at th« midim EUetiom A.D. 177d»^ [1978

1277]

abm^i tlie Wtiito-liora0F<^I wm in compmy
witb Andrew Farrnl ; and we Btonped at Mr.
Sltfenf't shop; aeoietbing^ paned there be-
tween Stevene and Andrew Farrat, the particu-
lara I did not take an account of; at parting I
iMard Jobber Stereos say to Farrat, Bid Lucas
be at the White* horse to-morrow night.

Samuel Cofycr sworn.
Examined by Mr. Pt^ham,

Are you a reter at Hindoo f — Yes.

• I>o you remember Mr. Holtis coming there,
and Jobber Stevens P— Yes.

Where did you see them ?— At the George.
- What did they come there for ? — ^To canrass
the borough.

■ Did they canrass the borough f-^Yes.
What was said and done?—- They came to

aak for their votes.

Do you remember an v thing being said f —
Yes, the voters cried, * Une ai^ alL'

What answer was given to it? — I do not re-
collect what Mr. Holhs said.

Were you at the White* horse at any time?
—Yes.

• What did you go there for ?— The same as
the rest of my neighbours.

Whst was that for ?— 1 went there for fif-
teen guineas.
' Did you receive fifteen guineas ?— Yes.

How did you receive it? — Through a hole.

Was any body else with yon?— Thomas
Penny, George Hay ward, and Thomas Wyer.

Did you sign any note ? — Yes.

Did you all sign it ? — Yes.

Did they receive the money too?— They
l^ld their bands up the same as 1 did, to the
Me of the door.

• What did you receive this money for?—
Tber did not tell me what it was for.

Whom did you vote for ? — Foi^ Mr. Hollis.
• Did yoo ever see Mr, Hollis at Hindon be-
ftMTv this time?— Not before the first time he
fMme.

Bot he won yonr besrt at once?— Yes*

Thomas Moore sworn.
Examined by Mr. Moyutf.

■ Do you remember being at Salisbury npon
the 4th of September, or thereabouts in 1774?
-i-Yes.

Did you see Jobber Stevens there ?— Yes.

What di«l you say to him, or he to you ?— I
■nked him if he could help me to the favonr as
the rest of my neighbours had ; for Mr. Hollis,
h» naid be had nothing to do with it.
. JM you go to him for that purpose or meet
hini by chance ?— For that purpose: I hope J
Ml BOt to convict myself, the other part may
Mid to condemn myself. He said ne would
wo 10 the Three Uons and meet somebody
licrii. and I should come up afkerwards and see
hifli there ; that is the greatest part I can re-

AAer yoo came out from the Three Lions,
M jron see Ste? ens again ?— YeSt in the
■nnot-phMe.

Have you a ton that is a voter of Hindoo f
—He went for a vote.

What did Stevens say about yonr son's vote ?
—I don't ehnse to convict myself.

[Edward Meade was called upon h» Snbpceoai
but did not appear.]

Thoma$ Penny sworn.

Examined by Mr. Seij. Doty.

Were you a voter at the Hindon election f
—-No, 1 did not vote, but I was deemed a vote
before the election.

Do you know Jobber Stevens ? — Yes.

How long have yoo known him? — Eleven or
twelve years, or more.

He IS a voter St Hmdon?— He has been
formerly.

He lives atSalisbury» and is a butcher?—
Yea ; I remember Jobber Stevens and two gen •
tiemen ceasing to my father 'a house ; my fa-
ther asked Jobber Stevens what the gentl^-
man's name was, he sski, his name was Hollis ;
Mr. Hollis said be came recommended by Job-
ber Stevens, to present himself as a candidate
for the ensuing election for Hindon^ and the
voters said, * down and down.'

Where was this ? — In my father^a fore*
parlour ; the Queen's head : Mr. Hollb said«,
' It shall be down, and that soon.'

You deal but in sliort speeches at yonr bo-
rough. Mr. Hollis said he came recommended
by Stevens as a candidate at the ensuing dela-
tion, the men said, * It shouki be dowo and
down,' and Mr. Hollb said, * It shall be down,
and that soon. ' W hat passed next ?— Nothing
more at that time ; the Saturday following 1
went to the White horse.

What passed there?— I and three more gave
a note.

How man? more might be in the roomf—
There was /obber Stevens's brother, and two
more there when I went in : Samuel Colyer,
George Hayward, and Thomas Wyer ioined
with me in a note, that note was tor 00
guineas.

How much had you ?— Fifteen guineas.

How did yon seceive that? — ^Through a
hole over the door.

Do yoo know who that came from ? — No, it
was banded through a hole over the door in
loose money.

Did you sign tlie note before you bad the
money, or after ?— Before.

Whom did you offer to vote for ? — I did aot
ofler to vote for any body.

Whom did you engage your vote for? — I
kept that to myself till I came to the Cross.

In whose behalf did you receive the fifteen
guineas ? — ^That I cannot aay.

You knew you were no vote then ?— Ne^ I
thought I was a vote.

And you went and received the favour f-^
Yes.

Whose favour ?— I cannot say.

Who bid you go to the White-boner — It
was reportecf that money was going to ptM
there, tbwffbre I went to the White-hone^

r- -I'V^rsn. XL ^'J

1 «

^i^^«>fi« < i J« IMfY'*^

'r«-»

Mj-r - ;f' /'..I* aMK^ tf^-i^fl b^ ">-«»?-?

'-n tiv^ ^^eW ^'w •?S(fBiiMCifn

4««* *t ^•t*'^ r. U^ •^90^~i »'» n«f «ffi«»n mil
VM'* M*4 vi# irt«v »ii4i:i « '.I** -rv» ki*A.vini '

If* •'' ■, //'■ / »'•■■ "• '. ■•■ '*"' H- ffv-

■.4f*

*i ■.<♦ avf f •*/•/ ■* '^ ■•'. '

• *9*^ •-. I '.\

7*, ..^ . ..4 t^f/ '.', V. •** *■'. / '.'. \ A*>

/v, *'^* .f'* -5 '.f r^r* ►* . '7 v^ »•.• , J

•-i;./'iF'* ' '•', I ««?r.* '.*'• ''# •*■ ' * " . ',
If', « ■•*>■/ ''*»•- /••« ••'♦^ ;' ' ' ','.••.* f*..

■ /•' •! /

/'f I ■ii/i I !«■ '<'«'*' ''•«' '^*'* rfi''^'' ' '^^* y\'.

\\t. ).. '«, 9,\t»\ t* .V,'. J.*«I y'#«» S*tr til '.Ir ! „' t'. ''

r.vufiiifiiil liy Mf H«i|iiifil ^>r'/»r.

fl'i ym livi ttt Ifiti'l'iri ' Y'h
llff you rffiif hiIh-i Mr. \lu\\iu'n <;otriitj(( to
lliiiil'fii ■' Yr «.

WImii wan il ^ fii Aii(fii«l

IVlioiii tliil liii I'rtiiM Willi / Wjtli hiiUrilftr

l{ll^v•'ll•

IVlinrii ilitl yiMI ihn\ iii*i< liilii nt lliiiilot) ? — At

lIll* f !|IIM.

WliAl illil lis nny Itiiro r—Tlml Ihi was coinis

It- --^

liir-y -'irtwr «iriii& if -lus

v'l^n c «t^c H^ : le «iat. ^

nt -titi>» : aii>*i naiie luxwu.

vrnj^" u» lout. ui'us wuiia ft vee& at Mi

Maiiie ^i' M0» 'u^n Maoi um kt« aaa s

"n'^r vft - ^i***iH ired in iis
I ; •! ^* ■iii'r*^. in»i wilt. iamsL-

»'' jl* \\v^. ' t: ••.< W : -* H '*-%e ? — I fxai
-r^". H^i". H--:-. B*r IT z Li.>s*v. ii<

V\ -,it ii>. -v* ,> # !>tti yjQ •jO't up ib«r«.'—
Tu*:rH wt4 tni* :^i:.*MnAQ a itnt:c^ of oeKi;
■.'.•••'« ■*** ft L'^ •: put f- rr^ to 51 ▼n II.

li 'I J Of J *"^D it .'---Y«.

li.'l \rjy Jk^-Jv eae s:^ wjih yoo?— Y*

! K'JA^M Wtiit^, Kicriard Ingraml^ and Jaoa

lihM^: tii«: |/ei.tifiiian a»k^ me to driok i

I 'j\h%» ot'p'ii.cii, which I di<! ; the note vu fit

into a hoir '/\frr the dour, aod I pat ray hlli

tip to T^cf.ihf, lh»; favour.

For whom i»tr« you In receive it?-— tf«
lofjk it, that it wah to vote tor Mr. Hollif.

Hid any body tell you wbom it was tofil>
for?-- -No.

Wliat wtiK it you received ai the hole of i>
door ?"-- Fifteen quiueas I received in mybv^

Did ttic rc8t receive any thiog P-^Thcy p^
tliiir hand to the bole ; 1 cannol tell mhumj
received.

;• :i.tr g«cL<ttU

iS8IJ

fit BriieiTf at the Hiitdm EUetiottt

A. D. 1776.

CfMt-eiHDJBtd by Hr. AlMufitU.

Wbo wfre prtteot at the Rote lad Croirn
wbao thii ptiMJ ttiu jnu hiTs incntiDDed i—
Tbera ««r« aightMU or niDHMD of ut : itier*
wtu one Jotepli Lamb.

Who ctac f-'l ematM mwllKt.

Not reoollect ODef---! oanootny i cmn, to

Wu Hiohard Iii^niiilherfl?---lcaiiDOtny.

Jvraviah Lueao?— -I nnnnt raaollcct.
■ Ya* tan r«coll«et noua but Latub?-'-No.

Can yuu retralltfct any iitlier man ibsl uw
thii bidiliag up of hands?— I auppatt:, cfery
body there miul lee it.

[£tiaf Sinrruwn unci) npon bis nbptent,
but did noiajipear.]

Mr. Serjeant Davi/. My lord, we real our
caae here ud the part uf the proaecullon.

Ur. Manijield made a iipeech U the jury in
behalf of ilie derenilaui, but did not call any

Hr. Baron Hotham then •aaimcd up ihq
cridence to the jury, wbo hy iheir Tentict pro-
nounced the defendant Guilty uf the charge
•Hedged in the iorormatian.

Hr. Callbnrpe and Mr. BecLfurd were ae-

Ob Mimday, Hay !0, being the lait day of
Eaater term, 16 Geo. S, Smith and Hoilis wore
brought up lo the court of King's- bench, lo
TOMi** Ibejadgmentorihe Court ; but aa the
jvdfM were (teiiroui to hare longer lime lo
nnaidEroTlhe proper |Kiniihment, tt>ev were
MHtdMlied lilt the next term, to tfaa Iktng'a-

Prwvioua, howeTer, lo
u« the ICIh of May, the new eleelion fat Hin-
doB looh place; and Mr. Knilh baTing again
dKlared nimiclf a canrlldalv, he wm returned,
uifeihw witli Henry Uawbino, em\.

On &iturday the 8lh uf June, being the ae-
cond day of Trinity term, IG Geo. 3, Mr. Smith
Mid Mr. Hollia were again brought up lor judg-

On the former

r)n, Mr. Serjeant Dary

to Uie praiie of listing reclaimed hia electors
from \\m ioTeterate al>uie of their franchiiea.

Racb of the iarorinaliooB conlained aeveral
cooati, and bolb Smilh and Hollia were fiiund
guilty on all the counts, in ibe ioformaltoos
ugaioat them. Host of the counts chawed
Ihem wilh act* of bribery coinmitled iuOctober,
1774, ItDmedialely hrfore the etectioD. For
ihose acta, iliey were liable still (until October,
1776) to actions iin the sutute of ! Geo. 3,
cap. 34, and lo all tile penalties inflicted bv
that statule.* Thecuunof King 'a -bench, in
the case of the Kiog against Ueyduu, or Hay-
ilon, when the delenilant was fuund guilty on
an information lor bribery jjrranted by theCinirl,
respited the Jiidginenl, till llie lime within
whicb BcUoDi on llie statute might be brought
*a* expired,t in order that he might not be
iwice piinished for the tame oRcnce ; and,
nearly about llie same lime. In the case of, the

KJng against filt, and szaiDst Mead, they, i

Gstabliahed it as a general

infurmatiooa fur bribery in

t principle,

:1 tie end of the li
,ule, for proceeding by wi,
t Tills rule, howeTer, could only operala

two yea

H counsel for Sir. Smith, bad iolormed the
Court, tlial his client bad, a few days before,
Iwen re-electtd by a ereat majority of roIcesK
lo reprrsenl the borougli of Hindoo, and since
tbcro was not [aa he alleged) the least shadow
or frelence, fur any charge of bribery a^iosi.
bin at that eledioo, be hoped Ihst wouliT ope-
nla with Ihe Courtin miiigatioo ortliepunish-
mcnt ihey inigbt ihinli fit tii inflict upon him.
He said, that at his fiisl election, inslead ol
inlTOduciny, for the first lime, cnrruption into
Ihe borough, Mr. Smith himself hod been led
nslr«j, and induced to Ihe effence of wljicli
the rerdicl of a jurv had found faim gwilly, by
ibe estaUished, ant) almost uniTersafpractioe,
uncmg the rolcn of Hindon, of exposing their
•aSrages lo tale ; and that by the purity witb
lAieb dte lart election bad, on bit pari, beea
•ondiMtcd, he nu, in tvine me«Hve, entitled
SQL. XX.

iipoQ information* grsoteil, by the discretion i
the Ciiurl, to private prnseculors, and cuuld
not sffent iliute filed, ci affifio, by the Attorner
General.^ The reason of the rule it, indecJf,
tquslly applicable to both, and in esses of in-
rormalions, ci (^tcio, Ibe Court miglit obtain
the same end, by res[iiling judgmeni, ss in the
caseof the King against HeydoD, till Ibe ex-
piration of the t""

llintigh general, w
rertal; for in ihe case of Ihe King against Pitt,
snd against Mead, lord Mansfield said, "There
may possibly be psriicular case*, founded on
particular reasons, where it may be right lo
grant informalioniE, before the limited time for
eommencing tlie prosecniion [on the tlalute uf
9 Geo. 2, cap. 34-1 <■ expired/' [)

Mr. Justice Alton now delivered Ibe judg-
ment of the Court. After stating Ihe ifuatiSca-
tion with which the general rule h4d been ac-
companied in tlie above- menlMaed case, he ob-
served. That there was a very great difreronc*
between the cases in Burrow, (where the of-
fence was the bribing of a aingle *oter, and the
proaeentions carried on by private penooa, who
might also have sued on the statute) and the
present instance, whidi was that of a genenl
corruption, and llie prosecutor, the Allurney
General, acting under the ciprets order of the
House of Commons. He entered largely inti>
ilie nature, enormity, and daogeroo* tendency
of the ofTeoce ; Iskiug notice that among many
evil conse«)ifcuoea, one of its miost iihvious el>
feels WAS, to give rise to the crime of perjury,

< Vide Dottglns, vol. 1, p. 410.

t 3 Iturr. 135<). X Ibid. p. 1340.

§ For the difference between (liese two torts
of inlornMliou, viifc Blacks!. Cumin, vol. i,
p. 304, 410 ed.

II 3 Burr. p. 1340.
4N

12SS]

16 GEORGE lU. Triah ofR. Smith and T. B. HoUis^ tiq. [19|

because a voter who has sold liis Tote, or has
been even promised a reward for it, must, if
the bribery- oath is tendered to him, be guilty
of perjury, before he can be admitted to poll.
He traced the history and gradual progress of
election-bribery, and of the diiferent remedies
which the House of Commons and the legisla-
ture had provided against it ; and mentioned,
(Mirlicularly, that, a very gross scene of corrup-
tion which had taken place at Beverley, in
Yorkshire, in the year 1727,* had given rise to
the statute of 2 Geo. 2, cap. 24.

The Judgment he delivered nearly in the
following words :

" The Court has taken into consideration the
imprisonment you have already undergone,
and they adjudge that you shall pay, each, a
fine of 1,000 marks ; and that you be impri-
tooed six months, and until you pay your re-
spective fines.

** As to you, Richard Smith, the Court can-
DOt help expressing their astonishment at what
appeared from the mouth of your own counsel,
that you continued so boldly to persist in your
attempt, and that you have been again returned
for the same place. They therefore have
thought proper to add to your punishment,
that, at the expiration of the term of ynur im-
prisonment, you shall give security fur your
good Kiehaviour for three years — yourself and
two sureties — you to be lioimd in 1,000/. and
^ch of the sureties in 500/."

In consequence of this judgment, both the
defendants were conveyed back to the KJng's-
^nch prison, where they continued till the 23d
of November following, t. e, for the space of
168 days, or 6 lunar months.t

On that day, their fines having been paid
into the bands of sir James Burroiv, the clerk
of the crown, some days before^ Mr. Hollis
was discharged by the marshal. Mr. Smith
was brought up to Westuiiuster-hall, aud in
the treasury- chamber of the court of King's*
tench, was bound over agreeably to his sen-
tence for three years. This passed before Mr,

* It is impossible to collect any thing of the
particular merits of this case of Beverley from
the entries relative to it in the Journals. Vide
Journ. vol. 21, p. 24, col. 1. 1 Feb. 1727 8,
p. 188, col. 1, 2. 22 Jan. 1728-9, p. 236, col.
1, 2. 25 Feb. 1728-9, p. 249, col. 2. 9. p.
S50, col. 1. 4 March, 1728-9, p. 259, col. 1,
9. 8 March, 1728-9.— Douglas.

f " A month in law is a lunar month, or 28
days, unless otherwise expressed, not only be-
Qpuse it is always one uniform perio<l, but be-

Justice Aston and Mr. Jattioe Willes, befcn
the other judges were come down. Yd, I
presume, it is to be considered as baving hni
done in court, sioce the re«9Qgoizaiioe wii«»
dersigned ** By the Court." **

The reader will remark that the nne ioci-
(lacities ensue upon a conriction on a proMCi-
tion for bribery by way of iuformatioa at cob-
mon law, as when the proceedinir ia l^ aa m*
tion under the statute; the disabling wor4ii
the act of S Geo. 2, cap. 24, sect. 7, bciig a
follows:

*< And every |>erson ofleiidiug in say of lit
cases aforesaid, from and after judgmnrt i^
tained against him in any such action of dih;
bill, plaint or information, or suoimary aeiiN^
or prosecution, or being any otherwise laaiiAf
convicted thereof, shall for ever be disabled M
Tote in any election of any oieinber or na-
bers to parliament, and also shall for ever k
disabled to bold, exercise or enjoy any offiei*
franchise to which be aod they then shill, «
at any time afterwards may be entitled, « a
member of any city, borough, town-ooryonl^
or cinque port, as if such person was natsnlj
dead.*' Douglass Election Cutt.

'* 1776, 17th May. The Attorney Gcsnl
came into the court of King's-beoch, ai'
moved for judgment against general Smitk,ftr
bribing the electors of the borough of Bisda:
Mr. Justice Willes stated the evidence sgiiHl
him. As soon as be concluded, seijeaolDny
and Mr. Mausfield endeavoured to mitigate Iks
sentence, by shewing how much the gcaoil
had already been punished for his oflfeooe, Ai
great expence he was at, and likely to be M.
In answer to what was urged in his favour, lis
Attorney General insisted, that the msMt
given in favour of him, only as^gravated ks
guilt. Lord Mansfield then t>egan bv eiprn^
ing his concern that the defendant had brou^i
himself into so disagreeable a situation, pursuci
the Attorney General's idea, that as to the ex'
pence, the general brought it on him^f ^y
procuring a return by corruption ; that thi
voters being willing to receive brilHPs, wv v*
justification of the giver, thai such punisbairrt
should be inflicted as would compel the casbi-
date to be honest, that the present case wis >-f
the most serious nature. An officer of 1^
CiOwn, 00 behalt'r\f the public, prosecoted t)
conviction. A man endeavouring to «nt icto
the senate by corruption ; this crime calN f<'
ample punishment by way of example ; it ss
Qiuse it falls naturally into a quarterly division } the first instance of the kind heard of, ^
by weeks. [Thus in a case in Dyer, 218 b. { should be maturely censured, as it wooM h

op the statute of enrolments, the six months
were reckoned of 28 days each.]" filackst.
Comm. vol. 2, p. 141, 4to ed.^There is ano-
ther reason why, in cases of punishment by
imprisonment, the computation should be by
lunar months ; namely, the fevonr which is al-
ways to hifi shewn to liberty, where the terms
ire ambiguous aod doubtful. — l>oi|glas.

impossible to preserve the constitution (r(»
ruin, if courts of justice did not act with ri-
gour, when such matters came before tlwA
His lonlsbip then ordered the general Iw the
present to stand committed, and to be hr«a^

* 1 was favoured by sir J. Barrow witklkr
account of these rirrtimitinfrati iDonfli*

I

1S85]

Adimjor Faite Impritonmeiit.

A. D. 1T77.

[W66

up the first day of next term to receive what- 1 ** The day foUowing;» one of tbe rolert at the

«ver sentence the Court should think proper to
prooouDoe. Mr. Hollis, the other candidate,
standing upon the same i^oond, was dismissed
in the same manner, and both sent to the
King's-bench prison.

**June 8th. General Richard Smith, and
Thomas Brand Hollis, esq. the late members
Ibr Hindon, were brought before the court of
King's-bench, in order to receive sentence,
liaving before been convicted of bribery at the
Jut general election, when sir Richard Aston
prefaced their sentence with a pathetic speech,
ID which he expatiated on the enormity of the
crime, as, by violating the freedom of election,
and 4SorruptHig the electors, the British consti-
iatioD, the most perfect in the world, could only
b^ ondone, that the crime of which they had
been guilty was aggravated by the tendency it
bad to lead the ignorant and unwary to the
commission of that horrid and foul sin of per-
iory^ the only barrier between God and man.
From these and other reasons equally forcible,
lie inferred tbe necessity of an exemplary pu-
aithment, and adjudged them to pay a fine of
1,000 marks each (Q66L 1%$. 4if.) to the king,
and to suffer six months imprisonment, aad.one
of them (general Smith) at the expiration there-
of, to enter into a recognizance of 1,000/. him-
odf, mod two securities in 500/. each, for his
good behaviour for three years.

same election was brought before the same
Court, to receive sentence for wilful and corrupt
l>erjury, in his evidence before the House pf
Commons, when he received sentence to stand
on and in the pillory, with a paper on his fore-
head signifying his crime, ** Wilful and Cor-
rupt Periury," twice in the town of Htndon on
market- dkiys, between eleven and two, the first
time to-morrow se'nnight, and the second tho
Thursdav following. And accordingly on
Wednesday the 19th following, he was brought
from the King's- bench prison to Fisherton
gaol, Wiltshire, and on Thursday was carried
to Hindoo, where he was placed in the pillory
for the first lime. He was met on the road by
a number of his friends, with two flags, and
blue ribbons in their hats. The populace
treated him ver^ favourably, their attention
being taken off*, in a great measure, by a per-
son mounted on a stool, who sung and sold an
election ballad, much to their entertainment.
He was brought back to Fisherton gaol in the
evening, and is to undergo tbe remainder of
his sentence the Thursday following." — Annual
Register.

See more concerning these transactions, and
the borouch of Hindon, in Douglas's Election
Cases, vol. 1, p. 173, vol. 4, p. 371. 18 Pari.
Hist. 575, et nq.

560. The Trial of an Action brought by Stephen Sayre,* esq.
against the Right Hon. William Henry Earl of Rochford,
one of his Majesty's most Hon. Privy Council, and theretofore
one of his Majerty's Principal Secretaries of State, for False
Imprisonment : Before the Right Hon. Lord Chief Justice De
Grey, in the Court of Common Pleas in Westminster-hall :
If) Geouge HI. A. D. 1776. [Published from Mr. Gurney«
Short-Hand Notesjf

Thur$day^ June 96.

Counsel for the Flaintiff.

Mr. Serjeant Glynn, Mr. Serjeant Adair, Mr.
]>avevport, Mr. AMeyne, Mr. Arthur Lee.

Counul for the Defendant,

BIr. Attorney General, Mr. Solicitor Ge-
Mrml, Mr. Serjeant Davy, Mr. Wallace, Mr.
Serjeant Walker, Mr. Dunning.

* I suppose that he was tbe person men-
tioned by Mr. Douglas in bis Reports of
SIcction Cases, vol. 3, case 26. Seaford Case.

•f- As the original publication contains not
tbe speeches of the Counsel, or the Lord Chief
Justice's charge to the Jury, 1 have inserted in
nolct the report given of them in the Morning
Chrooicle newspaper of June 28th, 1776. In
tbe Annual Ref^iter fur tbe year, History of
Burope, p. 59, it a brief account of tbe arrcft

~8ijre.

Special Jury.

Valentine Grimsted,
£dward Bond,
Thomas Allen,
Charles Matthews,
William Downes,
John Cope,

Edward Hawkins,
John Willis,
Thomas Jordan,
Redbum Temkins,
John Biggs,
William Clarke, esqrs.

XH£ Declaration was opened by Mr. Lee,
as follows :

Gentlemen, This is an action brought by
Stephen Sayre, esq. ; against the right hon.
Henry Esrf of Rochford.

The Declaration states. That upon the 23d
of October, in tbeyetr 1775, the defendant did,
by various illegal riolences, enter the pIsintilTs
bouse, seise nis papers and bis person, and
commit bim to close prison for several dav^
contrary to law ; wbkb the plaintiff lays to hit
damage in 3O|0Qp/,

4287]

17 GEORGE m. AdUmJor Fabe fufpriioiimgfif— ■ [IM

To this the defpodant pleaded,
Firat, the greneral iiiue of Not Oailty :
And then seTeral other pleas in jnttincation :
and his justification is, That he was at that time
one of the lords of his majesty's pmy council,
and one of his majesty's principial secretaries
of state; and that, upon an information upon
oath, by one Richardson, against the plaintiff,
for treasonable practices, he did issue bis war-
rant to arrest the plaintiff for hi|;h treason, and
to seize his papers ; and did issue another war-
rant to commit him close prisoner to his ma-
jesty's Tower : this he pleads in justiBcaliou.

The plaintiff has replied, That this was done
in his own wronjjr : upon that Issue is joined
which you are to try : we shall bring our evi-
dence and prove our case ; and upon that we
trust, that the justice of your verdict will give
PS ample reparetiou for the injuries we have
auslaioed.

Afler Mr. Lee bad opened the declaration,

Mr. Serjeant Gltfnn went at large into the
facts and circumstances of the case,* and then
proceeded to examine the witnesses, asfollowa:

Jouph Wood sworo.

Examined by Mr. Serjeant Adair,

IT hat are you P — A shoemaker by trade.

^Vhat else? — A constable.

Do you remember lieiog at Mr. Say re's
house ? — Yes, 1 was called upon on Monday
morning by BIr. Bond, sir John Fielding's
clerk, and 1 went along with him to the king's

* In the Morning Chronicle of June 28th,
1776, the 0|iening speech «f Mr. Serjeant
4alynn is reported thus :

** The Ueirorder of London, as leading coun-
sel for the plaintiff, opened the cause, and stated
the groundii <»f ilie action to the jury, begin-
ning with an account of the mode of putting
the first wnriant in force on the 23d of Octo-
ber, by sending three (>f the messent^crs of the
secretary of state to !\Ir. Sayre's house, where
they pretended they wantnl to speak to him
res|>tcting a forged note of 200/. and by that
means ^ot |H>NS€iision of his person and con-
veyed him to lord Roc hford's office, after hav-
ing rummaged his cabiuetand nei/ed bib papers ;
recitin£r the examination of IMr. Soy re before
lord Hochford and sir Juhn Fielding, with the
refusal of the defendant to accept bail, al-
though he had rhan«:ed his ground and com-
mitted Mr. iSayre tor treasonable practices,
notwithstanding that the warrant of apprehen-
sion charged him wiili hi^li treason, and final-
ly nieiitionint; thr cornniitling him to safe and
close custody, which was rigidly observed, (ex-
ceptinuf tlie cinnphance paid to a reiktrictive
order for the free access of Mva. Suyre) al-
though the offence on the face of the (oniinit-
meui n»K merely u misdemeauour, and there-
fore Imiiable.

" The Recorder d%%'elt on cnch particular
tboye- mentioned with great force and ability,

iMra, and from there we went te S^br
Sayre'snonse.

What messengers P—1 doB*t kwm tMi
names, two of the kin^^t nMswogers.

For what purpose did you g;o to Mr. Si^itli
house ? — ^They bad golja warrant, they said.

Did you see that warrant? — I didnoliai
it, they had it in tbeir hand.

What did you do when yoa came there?"
They knocked at the door, the maid-servM
came and opened it : they amid they waakdn
8|>eak with 'squire Sayre about aome particahr
business : she went up and toM the 'sqmrc, I
believe ; she came down anio, and let as all
the parlour on the rij^ht-nand, and tbta fk
'squire came down ; the;^ shewed him a sawr,
the warrant I suppose it woo. and aaia wj
must look into his apartments for some pipm.

Tliey must search for papers P — Yea.

Did they read the warrant ? — Yei, they ml
the warrant to him.

What did they do in coDaeanence? — As mi
as the 'squire had settled a- bit, and Mt iw'fi
he shewed them all the desks where they aiR.

Did they take any thm^ f^I btKete llff
took two or three away, 1 cannot say wUeb.

Did they search among his papers F—Ya;
I stood by, and the 'squire was oy.

Where did they go, and in what manatrii
they behave ?— They behaved very gealBeiHi
quiet.

What did they do with bis papers?— Tbiy
read a great many orer, and those that ikiv
did not %vant, I suppose, they left.

They eiamined them ? — Yes.

deducing from the whole such infereoenii
were most likely to alarm the jury and bwf
the circumstance home ta each man's bntfi
He painted in the liveliest colours the injuria
of issuing a warrant to seize a man^s ||f(^?■
and papei's on an informati«n) not less imprvtf'
ble than ridiculous : he ur^ed the inquisionii
stile of the private examination of a man soip-
prehendeil, and the manifest malice and wre-
ritv of refusintr hail, and coiiiQiitting him ciM
prisoner to the Tower, after the magistrate k«-
fore whom he was examined, had found reaiK
to alter his opinion of the tact with »hick ^
was charged, and thoufrht pro|ier to diMP
the description of his offence, and to imttitt
the couiiuiiinent words of such Tague aod v^
determiuate import, as the words * tresxfs^^
nvactices.* Having enlarged on the grn«n!i'-
iegatity and evil tendeury of such coui^c^
any man, and more particularly m a »n-rtury
of state, he retouched his picture undioiie^
its effect by shewing how particularly ae-
chievous it was to Mr. 8ayn* ; w ho, nbcottif
evLMit took place, was a banker of iijeat cnut
and wfks now, in conKequence, arninedsui
He ho|>ed therefore the jury, froui their ufu-
ral feelings -and »ish to do justice, m^itK
the case in its tiue hghi, and then he iKl'-
ed not they would think tiit. plaiuf iff nnii' ^i^
injured ; untl make him a just compensslui^
awarding hiiu aiuple damages."

1S89]

Saifre «. the Earl vfBotiiJwrd.

A. O. 1777.

[IfOO

Th^ took what tbty pleased, and left what
thejT did not like ?— They took two or three,
I think, away.

What Hid th^ do afterwards P— The 'squire
dresMd himself, and weat with them to my
lord Roohford's office.

What time in the momiDg did they go there ?
— -I think they got there about seven o'clock in
the morning, or between seven and eight, I am
liotpositive, bat it was about that time.

How long* did you stay at Mr. Sayre's
iioase? — I reckon we might stay there three
quarters of an hour.

Did any body else eome there while ywi
were employed about this business P— Nobody
else came there.

Where did you carry Mr. SsyreP— He went
to my lord Uochford's office.

Did you go with him ? — I did not go in the
coach, I followed the coach, and saw it there.

You di«) not see any thing that passed after-
wards P— M A, I was not in the office.

When Mr. Say re came down to them, and
they read the warrant, tell particularly in what
manner they proceeded, and what the? did ?—
They said they had got a warrant for high-
treason : the 'squire did not seem to be at all
diamayed : he said they should look, he was
not afraid of any thing ; he did not seem to he'
the least discomposed ; he said they were very
welcome to look, he did not know that he had
done any thing amiss.

Was Mr. Sayre in the room all the time they
were there ? — Ves.

Did he offer at any time to go out of that
room P — No.

Did he ask to go any where else P— He
asked to go to dress himself, and they did not
allow that ; he had his clothes brought into the
room where he was.

They would not then permit him to go into
another room to dress? — No.

Did they krep the door open or shut P— It
was shut : they ordered me to lock the door
when I went in, but 1 saw the 'squhre was not
diaroav ed, and I did not lock it.

Did they make use of any excuse to get into
Mr. Sayre's house P — Yes, that they had some
particular business, and must see the 'squire.

Did they say what the business was ? — ^Tbey
tnentioneif something that they wanted to see
htm abont a note.

Edward Mann sworn.
Examined by Mr. Dwoenport,

You are a secretary of stale's or a king's
netsenger, are not you P — A king's mesaengar.

Pray have you got the warrant? — No, I
liBTe not.

Had not yon the warrant P— Yes, I had.

What became of it P— I gave it to Mr. Soeatfa.

Who ia he P— The first clerk in the secretary
of state's office.

When did you give it him P — Last Monday.

Did von go, upon the HSd of October, with
Wood the coostabje to Mr. Sayni^ house P-«I
ilid.

Under what pretence P— With a atoratary of
stolels warrant.

Did vou tell the person who let yoo ia that
you haid a aecretary of alate's warrant P-»l did
not.

What did you tell the pemon who let yon m
that you came forP^I cannot tall the very
words: 1 believe 1 said to this efSiKt, that I had
some business of oonsequeaoe tooommnnicnla
to Mr. Ssyre, and I should wish to see him.

Do vou remember saying yoo caoM aboat a
draft tnat there waa reason to believe was fbrg-
ed P — I believe 1 did mentioa something of it.

Was the foiled draft the warrant, or what
other thing did you allude to P — Mr. Sayra waa
then not stirrior.

So this forged draft was stirring before him P
—Speaking of it was stirring before bin.

How came you to say that you came about
a foi|[ed draft, when you were a kiag'a |Bts«
senger armed with a warrant P—Beoaose I
wished to see Mr. Sayre.

And therefore yoo OMide a mteace of a
forged draf^ instead of tollinff him you cama
with a warrant P — I did mention that, and with
a view of his coming down stairs.

That warrant I think you say you delivered
to Mr. Sneath P— Yes.

Is he the secretary to lord RocMard, or waa
he then ?— Ho was first clerk then to krdRoch-
ford.

When were you served with a ^abpsBiia to
attend thia trial P— Upon Monday last.

Before or after yon dcliveiad the warrant to
Mr. Sneath P— Afiier.

Yon were served with a aabpswMi to bring
the warrant with yon P — I read the iabposBi»
and finding it aieatiened that I waa to brinar
the warrant or any other papers whioh I bad, I
went to Mr. Sneath to ask bim ibr it: ho told
me he bad not done wilb it.

When dbl you go to him P — On Moadair.

How long after yen delivered itP«*«Witbbi
an hour after I roeetved the sabacaaa.

How long had yoa delivered it befasa ymk
reeeived the subpcsnaP-^l bslieva it migbt be
three or four hoitro.

Did yoa go to bim upon Taasdoy P— Nb, I
did not.

Did yoa go to bim opoa Wedaaaday P-^I
went to him u|ion Wedneaday, and told bin
the same.

He had net daao witli it tbeaf— Hataid
me that it waii mislaid, and ha could ant
find if.

Then it isloBtP-<^I don't know.

What do yoa believe about HP^-l beliorc it
is mislaid, I only guess by Mr. flneath^s words.

Will yoa he so good aa to tell ow whose
hsnd- writing it was, and by whom aigned P—
Signed by lord Rocbford.

What was it an authority to deP-*l believe
it runs in the usual form tliat warranto do : t
have one at home I had 15 yeara ago, aad it
runs in a similar form to that.

Was it a warrant lo tabe bim for bigb troa«
aoaP— To tbe beat of my i imambrmca it

• ■

t ggit* ty teii Bwhfcfi iwtiu mumk%iid
Mr. Sftyn lor high treMonr-t-llr. fikiphai

SMfiJ • ' . ■

X'hiHife:aAinrwdt yof nir Mr. S^rrei
4Uh0eoiMdo«rft loyou oryoagoii|iltumr
w^Sooiw Sft/raoHM dovrft to M.

WhifrdM.7M.th«i ordorto be ^^M to him ;
iUyM M«r him to ha looM iipf^ItoU
Mr. fliqnothallwooeino o> hoiiiwoi which
woiTorvdiMfreaofalotonWf ftod 1 woi.ofrtid
ll would ho 00 .to him; tholwohod Aooontoiy
of •lato'o wamot to taho him kto cpotody, ood
oKoriihot to miio hk popmo.

When ho oomo down toyoo^did yon pMdit
Mm to go aboiit to drmt himmlfy oc ooy thiogr
ForUu^Ireferyoo toMr.Sojre. .
. For Ihot, hocooDOthoo witoom, aodiUMre*
loro 1 rtfhr to yoib-rAAer thisLNr^ Snro oak-
od to iwm p imilmiiiii toahavohiomiifs Itold.
Ua thit «ad any dww aim that ho dorirod.
Thab yon primiltoo him to |po op atoira fiir
clothaaF— Oa did imH daaico to go np ataira
Ibr hia dalhaa, ha«onf IhoheliaDd ardaiod hia
ololhea to bo bnnight to him.

.ThcB hodU aoCjdeHm to go.mto any room?
•^He did daatra to go op atalra.
: .Thatwoa jMlparmtttedtltohoitrf— Itwu
pernuttcd.

. lodtogoiotoaootiiorraomf— «Yaa.
'. .Itodrem.hlBiadf thcra{<r-Toap«ak toMn.
8am, wlio waa theaal braaldaat.
« : Wlio wont ioto Ihf room^ jfoa or Slalaj f—
I wantaloag withhim; hnl if t am not miar
tohanilwaa^yMr.Sajro^^laiira; botinlhal
. I will not bo paaitiTe.
' AAcrwardayjm hranght him bafiMPa. my lord
BoohMl r^Wo did. *

Dfai yoo bring with yoo any papcn oC hia P
9-^t did.

: Did yon aeareb and look into a numbar of
papera Wore ^ou took away thoto that you
thought matenal ?— I do liot properly know
what ia MarchiDg. I told Mr. Sayre we were
to take bia papers, in conaequeoce of which be
himaelf opened bb drawers.

Did you take any ?— No, we took oone, Mr.
Sayre took them and ga?e them to us.

You took all that be gaTO you ? — No, be
held sereral papers in his hand, and said, this is
auch a paper, and thia such, and we took bis
word.

So then you looked at none but what you
brought away? — We looked at some, and re*
tornM them.

You took bis word for some, looked into
others, and brought away what you thought
proper P— Some were brought away ; I did not
look into any papers.

1 thought you said just now, you read aome
of them ?— I did not say I read some, aome
were read and returned.

Who read them P— Sir Stanyer Porten and
Vr. WiUis.

.' Who waa air Stanyer Porten ? — He waa then
firrt aeoretary to lord Roohford.
> Than the papara warn under hb inspaetion P
^-^vMr. Bijffa hamlad tham; Mr. WUIbtoak

, and aur StaqwrPartmiallMra^aaiia-
taiwodtham.

Thaaa that warafo he biwaghc away,thQr
gavo to yon or Slalay P-^I toak tbam.

Tbaoyoa braatthtthi» to Im4 BadbftflP-
T9 lord RoohfbnPa offioo. .
. How hmg ware yen ibare f— I hdiata wi
aMffhtbetharaaheiitaahe«r«ii4«ftwfnr. I
wall not be eiaot» I did not neka muurtaa.

What beeeme of Mr. 9oyf« Ihcaf .^Ha «^
ahawB into a room wham lord Baeh%i»
ceitea Avaige minaton.

What became of him aflcr. thiakam aaf
^rtarP — Mr. Si^re ordered -I|m ewa aw>
nage,hegot into it, aiml BIr. Stalay aad^i
went to lord Roohfbrd'a affioe.

Boar loiw did be remain nt.tlweCeir^
believe, an boor and a ^nartof, or mtf haarmt
SOminntm.

. What becaoM of yea.theB P— Hmd^wo hf
another warrant giron to.na.

What beeame of diatP^TUnt I gave to Jb
de^yeooatohle of the Tower, aadMitmi
him. - -

Did yon earry Hr. Say veto. the TewarP—
Wb aant far a baoknojr eoesh ; end llajb'
ley and me went with Mr. Sayre to thelham

By whoao ordemP— In ronameemaa af if
'warrant.

What waa the BMenge to 11i| liiatfamtf
the Tower when yo« debrercd hiai|— WoM
no measage.

CMytbedelirery of the wanmatP— Thidi^
livery of the warrant and Mr. Sayre. ^

There ended yopr doty P— -I look a licM.

You took a receipt fhr the liody, andM
left bhaP^YeapaadthereWk ham.

JohnlWfy
Examined by Mr. Alieyne.

I believe at the time of thb arrcat, yon were
one of Mr. Sayre's clerks ?— I Waa.

Do you remember the circnmatanea of tk
messengers coming to Mr. Say re's ? — I do.

Do you remerolwr what paaaed hetwcea jm
and them at that time ? — 1 took minutes if it
at tbo time, if you will give me Uave t$
read it.

Mr. Attorney General. . When did yoa lakt
those minutes?— Soon after.

How aoon P— Two daya after ; bnt I en
remember it without my notea, if yon cbsM
it. [The witness proceeda without refernse n
his minutes.] On Monday the S9d ofOcJifi
between eight and nine, \ waa at hrnkftH ■
the office : our porter came and told moa tint
gentlemen wanted Mr. Sayre : I want bWlhi
parlour ; Mr. Sayre waa not up : 1 asked ihf
if they wanted Mr. Sayre ; they toM amtbtf
did, upon very parttcular haaioen: I Im
them the servant had informed me he had mi*
ed bim, and if it waa very urgent huaiaavto
would call bim a aeeond time: thay sHtfJI
was ; it was about a fbisary u^
I asked, what kind dT ^iseiy :
diately made anawcri thal.it ww
of 800/., and they wppaaed ili

1S93J

Saye 9.Me EaH ifJioch/bri.

IX nn.

[1994

hi Holltnd : I did oot ask them to let me see
h, but immediately sent a second time for Mr.
Say re: I went into the office, waiting for the
other clerk to come ; as soon as he came 1
went into the parlour, and asked Mr. StLyre if
Jie wanted me : he said, No : I thought it ex-
ceeding odd that be did not mention the
forgery : I came back, and mentioned it to the
other clerk, and told him that the people were
looking Ofer the papers, and f thoaglit it
something very eztraordiuary that Mr. 8ayre
did not mention the forgery: a gentleman
came in, and Mr. Havre had just an opportu-
nity of saying that he was in custody of the
king's messengers.

Did you slay in the room, and see every
thing that pamed ?— I did not stay a minute in
the room.

You saw the papers rummaged ?— ^The pa-
pers were spread upon a table, and they were
cnmining them.

Do you know whether it was permitted Mr.
Sayre to come into the shop? — He did not
come into the shop : whether there was any
permission I cannot say.

Had you anv conversation with Mr. Bayre,
ftnd where, before he left the house? — I nad
DOC : I went to acquaint a friend or two of the
•itiiatioo Mr. Sayre was in, and did not return
till Mr. Sayre was in the Tower.

At this time Mr. Sayre was a banker ? —
Yet. ^

VlT.Alleyne. I fancy such an attack as this
would necessarily have a very bad consequence.

Mr. Attorney General. Do you go for spe-
cial damages ?

Mr. AlUyne. No, -general damages.

L. C. J. De Grey. It is proved, that he is
A banker: any body may form an opinion
what an effect a thing of this sort would have.

Tally. Mr. Sayre had settled matters that
day and the day before ; he was to have gone
oot of town for ten days or a fortnight, on
Monday evening, or Tuesday morning, to Eiath.

Before this busings happened, did you ob-
serve any tbinir particular about the house ? —
tSome time before, I cannot be certain how
lung, but it was previous, to this event, there
■was a guard of soldiers at sundry times about
the house : our watchman came aud told me,
he thought it exceedingly odd : there was a
▼acant space of ground ; it is now built upon,
Dear it, by lord Paulett, where the soldiers
were.

Mr. Seij. Davy. This is oot evidence.

Tally. The watchman came and told me
there were some soldiers : 1 asked him at what
time they came, and how they came there ? it
was about eleven o'clock.

L. G. J. Dc Grey. You have not declared
vpoo any thing ot this sort; you declare for
the trespass and imprisonment ; if you mean
to tay tnat this arrest and trespass, as it is stat-
ed, was not done in consequence of this war*
-rsQt, we ought to say, it is an illegal warrant ;
fir 'tint there had been a prememCated desi^

io surroond his house, and arrest bun in an il-

e

legal manner before : if yon mean to say that,
you will shew how it comes withm the case.

Mr. AUeyne, This must be in reply to the-
justification ; I will not anticipate it.

L. C. J. De Grey. To be sure, yon should
not

Mr. Attorney GeneraL The difficulty is^
knowing it to be false : 1 don't care to seem \m
oppose it.

L. C. J. De Grey. Let it be false or not^
we should not go mto matter that is extrane-
ous to the cause. Do you want to go into
more witnesses to prove these facts? These
facts, I presume, will not be denied.

Mr. Serj. Glynn. We shall call no morcT
witnesses to any of these facts.

L. C. J. De Grey, The jury must have a
full insight now mto the manner in which this
warrant was executed.

Mr. Sen. Glynn. We shall ask no more
about the tirst warrant.*

Jokn "Reynolds^ esq. sworo.

Examined by Mr. Xee.

Were you at the secretary of state's office
during the examination of Mr. Sayre, apod
the 9i3d of October last P— Upon the S3d of
October, my lord, I was attendmg my duty, as
under sheriff of this county, at Tyburn ; and
while I was there, I received a measage bj
one of Mr. Say re's servants, that he desired to
see me instamly. In consequence of that
message, I left the melancholy business ip
which I was then employed, and went to the
banking-house of Mr. Sayre: the clerks tokl
me he was then carried to my lord Rochford's
office by messengers, upon a charge of high
treason, f got into a hackney-coach, and
went down to the Secretary of State's office.
I sent my nsme iu to my lord Rochford, that I
understood Mr, Sayre was there in cuitody,
upon a charge of a criminal nature, and I de-
sired, as bis solicitor, to have access to him.
I received no answer to this messsge, from the
person, but that it was very viell. I told the
person who brought me that answer, that I
must have another sort of answer; that 1 must
have access to Mr. Sayre; I would not be
shuffied in that way, but insisted upon being
admitted. The person came to roe again, and
said, if 1 had any thing to communicate to Mr.
Sayre, I might do it in writing : luy answer to
that was, I came there in the character of his
solicitor, aud I insisted upon having access Io
him ; that if my lord Rochford did not admit
me, I must apply to Mr. Serj. Glynn, his
counsel, and bring him there ; and see whe^
ther his lordship would refuse him admissioo,
or not. Upon that peremptory message, 1 was
admitted into an outer room. The iirst person
1 saw was sir John Fielding : he accosted me,
and said, Mr. Reynolds, did Mr. Havre send
for you ? 1 said. Yes, Sir: said he. That is not

. * I suspect that there are some errors in
this report of what occurred duriug the enmi-
natkm of JehB Tally.

1S953

17 GEORGE m.

Act wn Jiir Falte Impritonmeni —

[UN

I

Irue; 1 replied, I uii very notry fur tbit, lir
JoliD FielJing. Lori] Ruclirord hki preieot :
1 laid, 1 shoulil nol Itko lh>L lauj^uige IVnai
sir Julin Fi«Uia|[ \a aoatlier place. L<'>nl
Rochrtinl inlerferad, whom tUru 1 iliil nM |ier-
BonaUy know, and I exjiresseil some ivaniiili
about ib« difficulty oi'a genilciiMUi, in llif cba-
tucler of ft aniicilor, or at a privatK friend, liav-
iii^BGccas toaperson who wasihere in eu»tndy,
njun a cliai^e of a criminal nature. I then
deiired tlial they would m\i Mr. Slyre llie
^ueiijoD, wlietlier be stat for me or nul? Mr.
Kayre wu io another room : BpiilicaliDii was
mide to Mr. Sayre, and, ai I was infiiimfd by
niy lord Rovbrord, Mr. Ssyte raid, 1 did tend
for Mr. Reynolds ; upon whicb my kird Ruch-
ford admitted ine iuto tbe pn-acora of Mr.
Sayre. I fo«iiul Mr. Sayre under an exaniioa-
tiuo, a« 1 uoderstnod, aod a clerk nriling at a
tolde : 1 tbep chared bini aot to anawer any )
queftion* ; not to «i^ any papers ; that (h«
very moment he did one or Ihe other, or seem-
ed disponed In da one or tbe other, I would
Ie»e tbe rouin. Lord Rochfard said. Is that
tli« advice you g^vcyour client, Mr. Reynolds?
Ve*, ray lard, it ia Ibeadvicel give him; 1
•m u>*werable for that odiice, and 1 shall give
faiinuootber. Then, (aid be,Sir,l thin If you

Sire him very wroo^ advice, ftlr. 8ayre Ibeo
esired, thai the niiimletof bis eiainiDation,
to far ai it had (;one, miglil be reail : they

UoTdChirf^
nl iippliajH

: the intormutiou of Mr. KIchardton
vroH also read. Upon hearing the inforiDOlion
read, I laughed exceedinifly ; 1 said, the
charge was too ridiculous tu tw attended to ae-
rioDsTy a maraent. Either my lord R^chford
or sir John Fielding, I cannot determine wbinh,
said, Why, SirP It ii upoa oalli. laoawered,
luoktng at Ricbardnon, who was there present,
I liDaw that geotleiDan's character lun well to
gire credit to any thing that be swears, or
words to ibnt etTicl ; upon which Mr. Richard-
son called Ibi Ihe prolectiuD of ibe magislrales :
be said, be wtuoot to be there insulted. 1 ihen
aaid, that if under the authority of sir John
Fielding and his lordship, I was not periuitled
to say it iliere, I wuuUI >ay it again in aoolher
place. 1 then said to my lord ftocbford, al^r
ihii alteicatiun had iiawed, if, after consaliiiig
the great law officers of ihecrown.tbey should
be of opinion with me, that this is not a charge
of higli treason, and a tiailable ntfence, I ihra
Ko ready tu give gnod and sutHcit-nl hail for
Mr. Sayre ; hul il tbey should be of another
o)iioion, 1 have no favour lo aik : I waa then
ordered with Ur. Sayre and Ihe metsengcra
into auother room. That is all I know with
respect to what passeil that day at the Secre-
tary of Stale's otSce.

Did you apply at the Tower for admission to
Mr. Sayre as bis solicilor f— I anplied to major
Raiustbrd between seven aud eiglit o'clock thai
evening lor access to Mr. Sayie; the auswer
given to me by major Rainitord waa, that Mr.
Sayre was a cbise prisouer ; that, under that

him wilhoiil a ajiecikl order from tbe secretary

nf stale. 1 applied again the next day, aod
applied several liuiea atlerwarils, but
c'liild get acces« lo Hr. Sayre; and 1
saw him till 1 found him belure the Uord CI
Juaiiceof the court of Kiog's-bencb, b;
of Habeas Carpus.*

L. C. J. De Grry. These aeveral ap|
lions were lo the Tower, not lo the secreuryl
state's office t — Yes, not lo the secretary i _
slate's office. I aas present when Mr. Alleyaa
and Mr. Lee, as couusel tor Mr. Sayre, t^fiM
for accoH, staling lo the lieulenunt'goveritor if
the Tower the reasons for that application, tbtf
tbey were counsel reiaineil for hitu, and wiibsd
ID see him lo consult sIkiuI the measures for bii
entargemeot. The rosjor gave those two ma-
tlemen tbe same sort of answer ibnl bi
given me, as I before stated.

Von mentioned that you witfadret* atUf
fering bail, and then a warrant waa sent out I
the cumiuilment : hnw long
time af your wiibdrawing and ibe wai
being sent outi'—Alier J ' "

Hlr, Sayre was conveyed, by tbe proHr l
cers, from tbe Tower to his lordsbip'a mim
Bloomsbury -square. Messrs. AiUir, D<j|d
Liicss, and Alleyne, attended oa lbs fin
Mr. Sayre, aud Mr, White, (larlmr mib I
solicitor of tbe Treasury, ou the part ^1
crown. After tbe iwu hrat mentioned f
men had spoken for some bule t . . „
GuUjevt of .llr.Sayre'a being coaiintited task
confinement, hy virlne of the warraat tt «a»
mitmeni, which only conveyed a gt— ll
charge, and Mr. White bad dedarrtl iWkt
had no insiructioos lo oppose ihe bail, im
lordship called for ihe warrant ofcomiuitmea^
and immediately on perusinf it, (irnniiuMcd
that he bad not the least doubt uf Ui. S»;n^
being entitled tn bail ; as he observed, lliat (bit
gentleman was only charged with IreauniaUi
practices, and thai lie, lord Manstield, sImhiU
nol have refused Ihe bail, if Mr, Sayre had
without any counsel. Bail was accord

insly tlireclly oner«'l aud accepted ;
S^yrchimseff in o""' ' ' " "

I- )Ir.

lOOl. and John ReyDold>,tai
Cuote I'urdon, esqrs. in i>50'.each.

" Alter the buiiness was ovrr, Mr. Stjie
thanked his lordship for tbe great |ioliieae«
and candour he had sbeini on the iicouiea;
and hoped bis lordship would always act iali<
liko impartial nianuer eravirding to the covsli-
tuiioo, ' I bopeso too,' rc^plied bis lordthip;
* let tis bolb act accnrdine to tbe consliiutin
' and weshall avoid all dilHculties and dangeit.'

"Tlielardma}or and setrraloibeTfrieodsc''
Mr. Sayre, allciided opon this occaaiau.

" On December ISih l<>lluning at the Ud
Bailey, upon miitiou on behnlf of 3Ir. Stytt,
the recognisance entered into before lord Mau-
field, ou October auib, was diachargcd." Ao-
nual Register for 1T75, Appeiulix to Cbmiolii
p. 343, where is a brief accoani of Um {WttlM
proceedings agHnatSajre.

1297}

Sat/re v. the Earl ofRoeh/brd.

A. D. 1T77.

[1398

room I had three or four minutes coofemtiOD
with Mr. Say re, in the presence of the messen-
gers ; then I mthdrew sod went to his bank-
ing-house, and sent an express for his partner,
for fear of the consequences of the commit-
meot. I had not been in Mr. Say re's house two
mi nutes before a letter cane from Mr. Say re,
acqtiaioting Mrs. Savre, which was opened in
my presence, that he was now committed a
close nrisooer to the Tower.

Jj,C. J, De Gret/. Do you know what be-
came of the papers which I understand were
carried to lord Rochford*s office ? — They were
sent to me aften^ards, I think it was after the
access of Mrs. Sayre, by her hands, from the
Tower.

L. C. J. De Grey, Then they were returned
to Mrs. Sayre ?t-1 understand they were.

Major Rainsford sworn.

Eicamined by Mr. Alletfne,

Do you remember recei?ingMr. Sayre into
^ur custody P — Yes.

Do ^ou recollect at what time ? — Upon the
SSd of October.

Have you the warrant? — I have. [Pro.
doces ilie warrsnt.]

By virtue of this warrant you received Mr.
flkyre into close custody ? — I did.

Did you refuse any person's seeing him ?-—
Yea. I did.*

Did you conceive yourself bound so to re-
fdse, because it was directed you in the war-
vmni to keep him in close custody ?— -I do. By
tkc practice of the Tower, when a person is
ordered to be kept in close custody, no person is
to have access to him but by an order oi^ the
secretary of state; and, in consequence of that,
I did refuse several persons access to him.

Do you know my lord Rochford's hand-
writini^ P

Mr. Serj. Davy, That is not meant to be
Jisputi'd.

L. C. J. De Grey. Did you receive any par-
ticular directions Irom the secretary of state P
—No.

No particular message P — Nothiuff but the
warrant.

The Warrant read.

" October 23. 1775.

<* William Henry, earl of Rochford, one of
the lords of his Majesty's most hon. privy coun-
ciif and principal secretary of state, 6cc. &c.

** These are in his majesty's name to autho-
tise and reauire you to receive into y<^or cus-
tody the boJy of Stephen Sayre, esq. herewith
00Ot yon, betnsf char^^edf upon oath before me,

• See Vol. 19, y. 983.

•)• In a Note to the42d Lietter of Junius, dated
Janoary SO, 1771, (see Woodfall's edition, vol.
9, pp. 191, 19^.) is some criticism on the offi-
cial French of tliis lord Rochford. The Jan-
ffuage of thi«i warrant is aokward. Conoern-
m% the doctrine that a relative is to be referred
to the but antecedent, tee vol. 10, p. 147 ; vol.
19, p. 1110.

VOL. XX.

one of bis majesty's principal secretaries of
state, with treasonable practices, and to keep
him in safe and close custody until he shall be
delivered by due course of law ; and for so
doing this shall he yuwc warrant. Given at Sc
James's on the 83d of October, 1775, in the
15th year of his majesty's reign.

«* 'to earl Cornwallis, constable of his ma-
jesty's Tower of London ; or to the lieutenant
of the Tower, or his deputy."

L. C. i^De Grey, . Are all your warrants
with prisoners committed into your custody, to
receive them into close custody P — No ; in the
case of lord Ferrers and lord ttyron, for mur-
der, who were committed by the House of
Lords, these warrants were conceived in other
terms ; but the warrants from the secretary of
state, which are for state prisoners, are always
to close custody.

Have you got the warrant for the admissioa
of Mrs. Sayre P — I have. |] Produces it.]

Was any body else permitted to see him P— -
Nobody.

The Order for the Admission of Mrs. Sayre
read.

« October 23, 1775.

*< William Henry, earl of liuchford,, one of
the lords of his majesty's most honourable
privy council, and principal secretary of state,
&c. &c. &c.

*< These ate in his majesty's name to autho-
rise and require you to permit and sufier Mrs.
Sayre to have access, from time to time, to
Stephen Sayre, esq. her husband, a prisoner in
your custody ; and for so doing this shall be
your warrant. Given at St. James's the 33d
ofOctober. Rochford."

*' To earl Cornwallis, constable of his ma-
jesty's Tower of London ; or to the lieutenant
of tne Tower, or his deputy."

Mr. Serj. Adair. We are now going to prove
that applications were made at the Secretary
of State's office by some gentlemen for admis-
uon to Mr. Sayre, which were refused.

John ElliSy esq. sworn.

Examined by Mr. Serj. Adair,

Did y^ou make any application, or were yen
present when any application was made at the
Secretary of State's office respecting Mr.
Sayre P— Upon the 9SA of October I received
a note from Mrs. Sayre, to acquaint me that
her husbsnd was committed ; and about an
honr afterwards she sent a gentleman to me,
that I supposed was either a clerk or one of the
partners m the bank, requesting that I would

?o down to khe Secretary's office and try what
could do for the service of her husband who
was' under those disagreeable circumstances,
and to take such steps as 1 thought proper
upon the occasion : upon this I went and ap-
plied to some of my friends, and consulted
them to know what was proper to be done. I
applied to lord ^Bkgham, and we went toge*
tlier to.Mr. Burke, and we agreed that it wit
4 0

1299]

proper 10

I

I

17 GEORGE III, Action for Fahf ImprUonmnt—

[isM

0 go kll tocher tolhe Sf^cretiry's nr-

ilihovto make applicBiinii, If llir

Cuun nill permit me, I made a lilile mioule at
what ptiHiPil at tbe Secretary's nflice, wilhin
alii>ut llim liiiiirs alter I returned liiinie.

L. C. J. De Crty. You amy relVeEb your
memory hy Irwking al i(,

Mr Ellitteaia. October the S3d,Bboal ten
in llie ruurning, Vln. Sayre wrote me a naie,
wlierein she tiicutioaeil that lier liushanil was
aji pre I] ended by a warrant frunj the Secretary
of Slate. About one, or after, (be sent lue a
mesta^fe by a gentk-roan whom [ suppose la be
one "I tbe partners in bis bank, (o desire I
iTuuld go lu lurd Rochfbrd's (iffice to eni]i)ire
inlii the Bit nation ofber huibtnd.and tnkesuch
steps as Here necenary fur his benefit. Afier
bating consnlied with aotne friends, I went in
liinl Itncbfnrd'a oflice, accompanied liy lord
Effii>£:ham and Mr. Burke, and applied to the
Uo'lur Secretary cancerniog tbe warrant by
wbieh Mr, Sayre was apprehended. The
Unikr Secretary aniwered, Tlial be wan com-

ment be waa under: his answer was, Tbat the
warrant directed he ahould be under «afe and
clone ciK<tudy. I then denired to know if any
of his CrieiiiU or his wife might bare accets to
hini : bis aniHer n>aa, That they must a[ip<y
to (be Tiiwer tn soire this question. I then
demanded whether Hra. Sayie mi|;ht hare ac-
ci-u) to her husband: he replied, She must
apply to the Tower, and If she had not admis '
aiun, might then apply to tbe Secretary of
Slate. I rould not help observiof upon this,
that lord Rocbrurd might a* well say directly
whether he would permit her to bate Hccesa to
berhuiband or not ; that I wbe desired by Mrs.
Sayre to conie down to the office ; Ihit I acted
from molires of humanity, and that 1 would
mil quit the offii-'e tiH I received from loni
Kocbliird an explicit answer whether he would
permit her to hare access to bcr busbund,
not. Upon Ibis, tbe Under Secretary went
In lord Kochford, and returned this aniwe
That Mrs. Sayre must make application at t
Tower, and if Ihnt was not satisfactory thi-y
might apply to the Stvreiary. I repeated i
obserrnliuii, that ray lurd Rocbfurd mif^t

Wax permiasion granted loany budj ehefcol
Mrs. Sayre, that you know f — Not to otj
knowled^ ; l'>r I ihoold haTe trailed upM
Mr.Bayre; for I recoired a note from himlo
beg I would go to the Tower, and [fet »<««•;
bui in my way 1 called upon Mr. Reyuoldi at
his ottiL'e, and he told me, nnliody was ptt-
aiitted tu go to the Tower but Mrs. Sayre.

Mr. Attorney General. Von mtiat uotma*
tion what Mr. Iteyuolds told you.

L. C. J. Df. Grey. Mr. Keynold*. wbo ii
the but witness lo thai, idls you, nobody ww
permitted lu bate acceas to Mr. 8ajre in lb
Tuwer but Mrs. Sayre.

Mr.

vtW al

and

ileel, if he meant she nhould
have access, to iet me carry an order for that
piirpme to ber Immediately. Though 1
peaiHIy urged tbe Bboreobser*Btion,theUiider
Secretary would roakeno other answer than
first, to wit, She might apply tu the Tuwi
■where, if she waa refused, she might apply to
the Secreury's otfice.

Did you Ko to tbe Tower, in consequence of
ibat, with Mrs. ^yre or any other persoi "
] waited upnu Mra. ^jre in tbe evening ;
t»ld me, no acctss was permitted to her
band, except to herself.

I think you meiilioiied that ynu applied to
kn«» uhelher Mrs. Sayre and Mr, Sayri '
ffitails mtiflit luTe jieiiuiinoa lu we Uiui,

Alderman Lee waa called, but txK brag
present was not sworn.

" As loan as llie evidence on tbe part of lb*
plaiBllff was gone thmugb, Mr. Atlantey Ge-
neral rose in behalf of tbe defeudaDt, repl^q*
»hat had been advanced hy llie KeooriA
d animadvertiog on tbe evidence atldoeti
1 n the course of his speech, this lawyer, m'A
amazing akill, reiersed the picture wbicb kal
been drawn by his tearneil opponent, abuiol
tliat lord Rucbford liad done no more than aa
irictly conformable to the duly of au ordiair;
)Bgi«trate, and that it would have been aeu-
dsloutly negligent for a person who tilled itx
high aud important station of a Secretary d
Slate to have done less. He urged tbe alarm-
ing nature nf tbe charge allegeil, declaring dul
neither its absurdity nur its intptubahiliiy aat
a snffii:ient reason Idr any magiatrate to hi"
paaaed it over without taking legal notice of i< !
he ihea proved from the evidence whieb llw
Court had just beard, Ibat brd Rucbfurd'iCM-
ducl had not only been strictly legal, but ibll
ttip whale of tbe business bad been tranndil
with alt p»«aiUe puUieness and civility to ihr
plaintiff. He answered tbe objections of lb:
Recorder one by one, andendeavourFdloiht",
that the material grounds of complaint sihged
in the deularalioD, liz, the issuing a warrant tu
seize papers, tbe committing unly far tmsoi-
able priclices (allbougb the warrant lo apprt-
liend contained a charge of high treason) i»i
the refusing lo admit bail, and tbe cooimiltiD^
to close custody, were ill'lbunded, and aoaU
not t)ear the infereocea deduced frtMn tbo-
the first he instanced iJie ohnlsli
ractice in cases of bus
irged ibe frequency ol
cases of feloav, where magi
without scruple, search the persona and lodf-
ings of highwaymen, footpads, 3^. muj af
whom have been cnavicled and suffered, iacw-
sequence of evidence so obtuiHed ; witbontiaf
idea prevailing ibat they bad been iUcpH;
trent^i be wished therefore tu know oowbsl
principle of law the practice was otyccted M,
quoting lord Coke in support of it. — In reptj
to tbe vecond, be declared it was the newtd
kind of objection Ibat ever was made in a OOBft

Sa^rev ike Earl of nochfotd.

[rsos

jHiyin behiir of the Jefenilani, and then pro-

•eeiled lu exumine bi( witnesses as folkifs :]

Fon THE DerENDivt.

Ttanci% Richardion, esq. snora.

Eunined by Mr. Solicitor General.

Are ynti an arljiilant ia the gtianli ? — Yef,

in the nm ballaliun, iu the first rreimenl.

Were vod^ in ihe month of Ocluber last,
MalionalinlbeTower?— 1 nai.

Ut oHeuce to a miuleineanoar, was nirely t
mark retlier of llie magistrate's \eiMy ihnn \.\\i
rigour.^ — 'With rrganl to the retiMinc liuil, it
bad not been protril that any bail was lF|[nlly
l«ndrrecl. Tl>e law rnjuireil in all bailable of-
ffrices, that ihe oames ami descriiitiona of ihe
bail sbould be inaile knotrn to the magislrates ;
it hoH not been prettnileil that a liint even was
offered, irbo tbe persoiu were that were to be
Uiebail; and finally in regard lo tbe commit-
■nent to aate and close cnstody, lie luiew oo
Mker leifal ciMiody ; Ihe worcta were tbe u«ual
•ad forinal words uf warrants, from the day
Ibal warrants were first tranvtaled into Eui[lish;
tbej were a literal and close trjnslalioo of the
old LHtiD words ' in ulf& et arclil custodia.*

■* Mr. Attorney General look great giaiaa to
exculpate Mr. KichariJaoii from cenBure, sliew-
inff lliat he nuuld haie been fc"''')' of Ihe mo~t
c«atem|)lilile and infaniaus conduct, had he
Wroeibehing'itcoiuaiiMion, and yet concealed
bia knowledge of a plan to insult and endaogar
bis |ier>OD, (a plan whidi, liowerer apparently
wi»arA, was uerertbeleai practicable I) and ex-
nlaioiD^ bow far a man was bound by any in-
furntalioQ ^iTeo him In cnnfidence. asserting',
ibat when tbe iDrormatlon went beyond a cer-
tain legal poiat, it was no less iin|>ndent end
tbrmg in the person ({■''"S 't '<> expect cunti-
ilanlial secreuy, ihaii it was uu war rati table aod
dangerous for the party to whom it was im-
ptxwi to conceal it. Upon this ground he Jus-
tified Mr. Itichardaon ; ubom h« described as
Ok mat) deaervinif tbe ihanks of the public, Ibr
bating to well discharged his duty, in a
of ■ very nice and iin]Hirtanl nature.

"In obserring upon the evidence he animad-
verted with mucb severity on Mr. fleyonldi,
who, be aatd, had behaved to lord Itucblbrd
with great im pertinence, and bad very el

3u*iitty inl'urnird the Court bow rudely be b
call with « poor secretary of slate and a in
ftijjutaut of tbe guards, to whom be had oflrred
bla law advice gralit, wbicb they iu a mosi
nilliog uiauiier bod Delected Id folloir.

" Aller a very lung and powerful apeech,
Ibrcii^g the I'lilluf** of hi* ctteiil'K jusOlical
ikod urging repeatedly that there was clearly
BO malice in what lord ItochfurJ had ilone, but
that tbe whole uf his tHiiiduci aro»e from ibe
neeeuary ditcbar^re of bia ollicial duly ; be
QOBCluded with expreasing hia hopes thai tbe
jury would confine their ibuuglila to the mat-
Ura ipedlletlly atstrd and laid di)wn, and not
iMVcncourHio tlieir i(UB|[inaiioiu; tbatacl-

Fletse to look ■( ibnt paper. l» Ibat ihe in-
formation thai yoii made upon oalh before injr
lord Rocliford ? — Yes, bei-e is my liand-
wriiing.
1 ou were iworn to it f — I was Iben.
[Iilsread.']
" Tbe voluntary IsfDRMtTioM of FiuKci*
Richardson, Adjiilaat to ibe first balia-
lioD uf Ibe 6rst rrgiment uf fmil-u nurds,
Bworii before me, one of hit Majesty's
principal S«crelaries of Stale, tbis day,
Ibe 30tb of October, 1775 ; who says,
<> Tbat he tbe said Francis Richardson di<t>
un Thursday Ibe lyth orihiamootb, uo nr
alKiut ths liour of 13- o'clock ai noon, meet
Stephen Sayre, esq. ; banker in Oiil(ird-ti)ad,
Bi ilie I'eosylfania colfee-hanie, in Bircbiu-
Idue, when be told ibe saiil iDturnisnt tliat be-
intended lo have wrote lo Iiim, and tbat he
wished to have ten mloules' coiiversaliou wiili
him; whereupon they bulb went op staira
into a private rnom in the sold linuse, and after
the aaid Informant had shut tbe door, al the de-
nire of the said Mieplien Sayre, he Ihe said
Stephen Sayre said, he hoped, as ibry hod been
long friends and countrymen, thai the infurm-
ant would not betray ihe coulidence he was
guing to put iu him ; and upon Ihe inlbrmant'i
assuring him be wuuld not, Ibe said Stephen
Siyre enquired what jiower ihe inforinanl bad
in Ibe Tnwer?--^Vbcther be cntild keep tbe
gales o|ien ? — Wbrlticr be could oot fix what
onmber of centineU he thought properf- —
>Vhelber all orders did not go lln-nugb Ih<»i b»
adjutant? — Who had lliecare aod keys' of the
inagaiina- luid arsenal? — What ailustion tbe
men were in, in nupecl to ammunition?— -If
by presents or promises, tbe informant had it
in his power lo make tbe snbliers aland neoter,
in case there should be ocaasion?-— Tbe said
Stephen Sayre then said, if ibrre was not a
cbsDge in governroenl, both countries would he
mined; and that ibere was a acbeme laid ia
wblcb the inrormant might be iiwlruaiental in
saving this country and America from ruin, if
be had but resolution and good will. Tbe in-
formant replied, whenever be was called upon,
be hoped he should not prnve deRcienl in
either. The infurmant then deaireil the said
Stephen Sayre to explain biinaelf, which ho
did, by aaying, the people were determined to
take the government imn iheir own banda, and
the lime won near at band : tluit (hey had aaet
of floe fellows, w ho were only wailing Ihe op-
porluiiily : and that as lo tearing to pieces lord
Manslield, lord Norlh, U>td Bule, S(C. il would
be of no material cnuseo'ieiice ; they mutt
Btiike al llie I'uuniain- head : to which the in-
formant made aiikwrr. You don't mean tbo
king! Tbe BbiivementiunedSWpben Sayre re-

iug thus coufiirmably to law,justice and xjuiiy,
be doubled not, aa honest and cciiicieoli'ius
men, lliey would lay their bands on Ibi-ir brrskta
nud give « verdict for the del'eadaut." Sluru.
Cbruu.

1903]

17 GEORGE IIL

., Yet: thmt the Idiig WM at the bottiMli of
ill ; for he MieTed loni Noitb wit hetitil?
tide of tbe boMoeit : li<t tbeo went oo, and said,
Tbe desiiro wa«, to iieise the king going to tiie
llouae of Lords on tbe S6th instant, and to
eonvcy his majestv to tbe Tower. Tbe in-
formant then asked, « hetber they intc^nded to
dentrojr the kingf Tbe abofesaid Stephen
Say re answered. No, bnt to tend bim to bis
German dominions ; and that major Labillier,
ore major of a name like that, bad been em-
ployed, for tome time past, to dittribttte money
to tlie soidiert of tbe foo^ gutrdt, and bad
already distributed ttSOOL for tbe porfwte of
alienating their affectiont from got ensment,
ami to prepare tbem ibr a retolt: and that

AeHai^Jir FaUe It^itOMm^i f ISM

Did Im denro yo« to go It loffd Rtcilbid!-
Yes: hedtaiicdtMltgoalMiirwidiyak

General Craig it your eommandiag ofitvf
—My immediate commauding officer.

Crott-exafliuncd by Mr. Beljcont Jdmr*

the aboveoamed Stephen Sayre said, he with- that I rtoollaets I

cd the infurmant would instil into the Arst bat<
talion of fbot-gusrds a notioo, that, if a change
of gorernment should take phMse, their pay
tfaould be raised, in proportion to the dearneta
of profisions ; and that be would send the in-
IbrDMint, in a day or two, 10 or SOi. Ibr tbe
purpose of making himself popular with the
tbldiers ; and that if the informant eould not
hriog them o? er to fall in with the said Stephen
fiayre't tcfaeoie, he would at least prerail .on
ihem to stand neuter : that the informant waa
to be in the way on the morning of the 96th in-
ttant, and on a signal given, whiefa would be
•eummunieated to bim in due time, that the
king was brought to the Tower, the informant
was to let bim in, and tbe populace with him,
then to see the gates shut, and to put them in
possession of the mag'azines and arsenals, and
to fix trusty ceotinels at the ^[overnor's door,
and wlieu they had {;ot the king in their pos-
session, they were tu issue proclamations under
the kin)jf*s sii^o manual ; to call a new council ;
to annul the authority of all officers, ciril and
military, of which the said Stephen Sayre's
frends should disapproYe ; that the lord mayor
was at the same time to order the.sherifTs to
raise the posse comilat us to keep the peace near
the Tower ; and that proper constables would
likewise be entered. The aforesaid Stephen
Sayre enquired particularly into the situation
of the mac^azine at 2St. James's guard, and the
state of that in H\dePark, and finally con-
cluded by savings, The attempt would entirely
depend on their opinion of the temper of the
people of that day. Francis Richardson.''

** 8^vorn to, and signed by me,* the day and
year above written. Rochford."

Did any body go with you to lord Rochford,
or did you go by yourself?—! went with gene-
ral Craig.

Had yon communicated te general Craig
any thing of this matter ? — Yes, the greater
part of it : general (.'r.tig declined beinjf privy
to the name uf the person of whom 1 received
this.

Botr long bare you beeo acqiMiBtri with
Mr. Sayre f— •'Betweeo afai mi4 — eooyotm.

There bat beeo a cnntidernblt iggitt K
freedom benveen yeof— ^]o. tkm CMMOto m>
ceptation of the word tliere woo thoopptniiiM
of mtioBaey ; wo oarer nnteii at oor ftpv^

tite boosts; tbero

liarity, coofidaooe and frtedlbJB.

Hart yoo oarer riaited Bflr. Soyro
that timeP^I oarer vitiled iilai ot hi

* This appears to afford another instance of
lord Itoch ford's official incorrectness of lan-
guage.

ago that I Diet him at tho haoto of a Mr. Di
Borgh>t, but norer Tiiilod Ima ml 4Nt tM
boote, at I know.

Wat- there any eorreapoodenoo kept op ly
letter or otharwito httwem yoo and Mr. Ajm
doriag that time r— Not that I rocsoHoet

You mean then to aay jroo wero
with Mr. Sayre during these aix or aevt
becaose yoo bare loet with hioa io tlM ttniet ail
oonveived with him, and ooee out with hifliilt
Mr. De Burgh's P— We net aa coootryoMo; 1
waa alwaya rtry happy to too Mr. Bayn^ aii
heme.

Mr. Seij. Davy. What eoonttymoo ait yt
—We were both bore in America.

Mr. Serj. Aiknr. Then yoo coooeift iW
common acceptation of the wftrd ^ iotiioaliP h
applied to people who for six or seven jrtrf
together never visit each other or keep up any
correspontlence, bat who Mpeak when tbcy
meet in the street ? — We were not intirotle.
I must ap()eal to your lordship whether gft*
tlemen are to use such treatment as t his !

L. C. J. De Grey, Upon i»eing asked, be
explains what his idea is, there is no impett-
tion lies upon the witness; according to the
common idea of words I should have tboogM
they did not import an iotioiacy, but be ex-
plains what he means.

However, that was tbe state of yo|^ ac-
quaintance and intimacy with Mr. Hay re tbtt
yon have given an account of? — Yes.

Do you apprehend it likely that a person ss
acquainted and with such a dei^ree of inti-
macy, whaterer it was that you would ^
icribe, would place a confidence in you in tbe
manner you have mentioned ?^li is* likely,
for two reasons: in^the fir«t place 1 have al-
ways expressed an approbation of tbe Ameri-
cans and their cause ; I hope. Sir, yoo ap-
prove of that : the other is, that no other officer
in the Tower could have serred bim in tbat
manner bnt myself. ,

Then you were a likely person to have
serred him in that manner, you conceive.^—
Appai*ently I was.

What time of day did this courersatien pus
at the co^ee-hoose ? — At twelve o'clock.

Did you meet accidentally or by appoint-
ment F— Accideotaily.

PBS] Sai/re v. Ike Earl ofRochfvrd.

Who began the cnnvetsatioa ?— Mr. H»yK.

Ill the cnffGe-liouKij ? — Yes, be was writbg-
» MlPT nlica I rama itp Id him.

Were Buy pei-aiins |»'FBFnl ur within henrinjf
wbeu Mr. Sajre bepiii ibut conver««tioiif — I
ifon'l recoll«cl any liiiily in particular.

UiJ you cuDliniie I'l canrcrae aiiy tiiae la
tlic oolfrF-hiinaef— Mr. ISavre wa« wtiling a
letter ; an noon » he hnd liaiabetl it be Mid he
intt'oilrd lo hare wrote to lae, and uaiiteil to

At whose iDstance n'as it that yon withdrew
iDlD Knotber roam F— Mr. bayre'i rfiuevt.
I lliiiik you K»y he ludieil the dwir upon ibe

oncasinn ? — Liickeil or shot iht door.

laiheroiivprsalrnn with Mr. Sayreyouhate
meulionprl ibal a major L»b«llier, or sntne |i«r-
■oaof 0 name likp ihal, Mr. Say re I'd [I you
had dixribiited a suni of mnney among tbe
guards. Did that pasM * — Yes,

Old you knnif aay tbios' uflhat person (bnl
wa« Darned f — 1 neier heard uf such a name
belhre.

Did you, in conspqiiencporihe conTpraalion
that bad piis«pd between you and Mr. Savre nt
■Hy t*me before yuur inroniiaUoo ai lord Koeh-
fifril'a, make any voquiry conceTDingp that per-

Oi.

bad pa«F<l

-I did m

I ynu make any eo'gulry ainoni; tbp'sol-

of Ibe {{uards ubpiiier any such thing

(iipiiosi'd
-No, ■

I immediately

ta ape the ^eii

This parsed on the 20lh of October?— I be-
Uwfln tlie IQtk.

Whrii did you e^ite the jtiforinatioii to lord
Itwhturd'— I went immediately lo look for
•he ireDeral ; | believ« it migbl be about three
s'clnck that day.

Did yo.i go to lord Rocbford the iome day ?
— Theamneday.

I think the information la not datfd on that
day : was ihe iiifnrmation given thai day or
Ibe d.-iy r.j|loHing f— The day lollowinff,

Al what lime, as near as you CBO recidlect ?
— I believe about ten or eleven In the fore-

Vou were at that time upon duty at ihe
Towerf— Not while 1 wasal ford Hochlbrd'a.
Bin it was yuur slaiion ?— Yes.
Did yoii at aay time between ibe conTersa*
tioii wjrb Mr. Kayre, and the tlnie of your in-
formation (fiven to lord Roi'hford, return to
Yourduly al the Tower?— Yes, 1 lay in Ibe
Tower that nisbl.

Yuu are, I Ibink, an officer in Ihe first regi-
DaentoffUBrdaP- Yea.

It wa« that repmcDl, I think, which wai
mcnlioned in the courersalioii between yon
and Mr. Sa^re? — He spoke of all iu general :
he Kpoke ot the firM regiment then ; of that
nhicb was immediately under my Rare as ad-
Money, he said, had been diatribuled among
ibe aoldiers of the fool-guards ? — There ore
•«TeD batlalions ; 1 am adjutODl Vi the tint bat-
talion of the first reglmeni.

A.D. 1777. [130G

Did you make any enquiry into Ibal malter?
— No; becanse I was desired by my lord
Rwbfbrd not to make any pniiuiry about Ibe
tnulter, fur fear of discoiering tbe mailer ; I
sU|i|)DM! yuu meeo lo cnnfiuc me lo Ihat parti'
culnr day, I waa desired lo weoliun it tu do
person whatever.

L, C. J. De Grry. Fifteen hundred puunda
ia not asid 10 be given to Ibe tirst bamliun in
the Toiver; but among the lool-giiards F—
Y«. *

When this particular was mentioned le you
nf money being acluully disiribnied amoag Ihe
guards, you dtd not ihiuk it necessary, bielbre
yuu gave an inlormaiiun upon thai auhject, lo
make any enquiry al all inlo the truth nftltat
Ibci? — No, because I llibugbt it would come

Nor is the nenxin meotioued in Ihat infur-
niHlion F — Nn, 1 Ihougbt it nut Deccssary.

In fact yon did nnl doll? — No.

Did Mr. tiayre aend you Ihe 10 or 20/. yon
apohe ofp— No, be promised to meet me: I
staid lill three o'clock al my ofrn apartmenls:
that was the tt^turday, 1 belieie, I'olktwing ;
bui he did not come: ibul muney was lo be
dislribuled among pattit^ular persons, the xer-
ieants of the gnards : I was going tu look lor
Mr. Ssyre; I mel Mr. Sayre lu^a eoauh with

Mr. Bcv

did.

olds.

For what purpose ? — To get the money : I
ibought it my dniy to get tbe money : I was
desired to see ntr.^yre upon the subject; lo
encourage him in the attempt ; in gel out what
1 cuuld from bim: I looked uponillnbemy
duly; and I would do it again; imnirdiatelj
upon coming Iu the coach, Mr. Sayre oflered
lo Mop ; and he *aid be was goinc to.;

L. C. J. Ue Greif Before this, had yoil
settled any milters »iih Mr. Sajrp about re-
ceiving the mntiey ? — Al firal be naid he WouM
come with ii lo me : afterwards he said il might
create some suspirinn, and be would aeud ill;y
some IruBty person in a letter.

Then iliwe was im appointment of a meeting
for that pnrrnise P — No.

Did Mr. Snyre express a readiness nf S|ieah-
ihen ? — He offered lo atop Ihe conch

lo ihe eoBch ? — I

tUm

Did II

ik ynu lo cm
recollecl ; but I t
boily aaked me to cusne in; I said J would
waJK: it was just by ibe court Mr. Rcyui^ds
bred in ; Salisbury •court, I beltefe it is ; and
Mr. 8ayre said lie wa» going to Ktn|i iu ihat
court. ' I followed the coach for the purpose of
sjieaking lo bim.

Did yon go lo Mr. Rf-ynnhls's bouse? —
Yes, Mr. Reynolds was liiere ; and a litlle
mnii in lilack gol out of Ibe cnsch : they ted
me into a littleroom on Ibe left band.

Did any thing llurlicullst^a.'«a^.V«ft,^— ^V

15073

17 6EOBGS UL

AdimJ^ FJSa /nyitiiwKfiif [tSOB

imiwuIlMidlMeiideiirad: I IdM Mr. 8i]rTe
I bftd coiMidered Um nmiter Terj allentifdj,
wmd I tlMiight It WW fetsible.

Who wM pmeat Ui<r«r— Nobody but BIr.
8im Olid I.

M wbooe doira did yoo withdraw inloo pri-
tote room?— Mr. ReynoUls'tt they opraod
<ho door ; Mr.8oyio wont iotothe foom, aod I
iUlowed hifli': tnnne wot o iervut-iiioideleoB-
iai^tbcbovtht ihoweot ool ond left ■§ to-
fpeiher.^

Witlioot any desiro imteeiid by yoo to hoTo
oay private oonfOTMtioQr^^Yoe.

How loog did yoo eootipne with Mr. Soyro
■I thai timef— I oellove a qoartor of ao hour.

Did ho give yoo any BMmey theo9*-«Bo
palled oot bia pone, aod said he bad hot half a
goiiiea and a key ; hot, laid he. I will meet
yoaalthoNew'Bn^jbnd oofiee- nooao at one
o'eloefc, and will ipivo it yoo then ; yoo will
give me yoor nolo of band, and it will look like
■Mney ^--bot there waa one thing that 1 had
Ibrgot— When' wt were in the roorn^ Mr.
9ayre asked mo whom I had aeon after I part-
ed from himP I Midy general Graig: he
looked me ateadily in the eoumaoanoe, and
mmI, Did yoo eee nobody ebo P I laid. No.

Did Mr. Sayre meet yoo ponnant to that
. nppoiotment P-i^He did noC

bid aoy thiog ftitber pom between yen and
Mr. SayreP— 1 donotreeolleet aoy thing) I
went tMre at one, and I waited th«e Ull near
three : I met^a genttotnan who waa very near
jllie phwe, that I oMOtionod the circometance
to before I inibrmed general Craig, captain
Nutfent.*

Di^ it never ooenr to jron, or wee it never
•oggeatod by aoy body, that it would be proper
flbr yoo to en^oire into the truth of that tact
witlT respect to the money that waa said to be
distributed amoog the guards? — I never thought
it necessary, I thought this affair was not coo-
flood to Mr. Sayre : Mr. Sayre mentioued some
great persona as parties conceroed in it: I
could not auppose 1,500/. could be distributed
and it not be known.

Though you were not very intimate with
Mr. Sayre, you knew him for six or eeven
years ; did ^ou ever meet with aoy thing in
your acquamtance with him during that time
that led you to conceive that he was out of bis
aeoses ?— No, I thought him a man of mode-
rate parts.

Aa other men are? — Yes.

General Craig sworn.

Examined by Mr. Serj. Davy,

I believe you belong to the first battalion of
tiio first regiment of foot guards P— -I have the
honour to Im lieulenaot-colonel of the first re-
gimenL

^ * 1 believe that shortly after this tranaac-
tion, captain Nugent was dismissed from the
guarda ; and that m the year 1782, during the
ndminiatration of lord Sbelbunw^ he waa created
%baionet of Ireland,

P--^

Mr.^ aioharten is •4|0lnBir— iToa, that

ore tlMrao.1

Yon are of coorw hia aoMiior o&
Year

Do yon re«ambaff bia ^tmmg to yon
bforming yon of any easvenalioB Iw tad
withMr.CiayreP— Yea..

Of what natoio waa that eoovonmieB P—
caaiM to no » the orderly -roooi of the inl
regiment of foot gnarda. I van baiy thsR^
but he waa very importoaato to apeak ta mt^
aaymg, he had aomething of very grant oonm-
qoeneo that bo most Imaadiaitly coflMMmMla
tome. I wentwith.hioioat of tba ordsrff-
room into a little book contt tlwt la thorny Ikat
wo might be aloiM : when I onoan than^ ha
aaki>a had had a tory eitraordiiinrr oanfMa*
tion boM^Mlh.him that wnanmf. og aaalla»if
the grenteat nnnamnatga to ito Batiaa^tlfc^
there had been nooey ilfctiHiUiid nmsBff*o
aoldiare of the goardai to the anaontt tlbUf
he aaidrof l^fioA in order fi» floboni thorn tan
their duty and allegianoe: thnt there wwaia-
tentiooa of aeiring the Kingla paraan aa ha
went to the Hooee of Laida oo tbe oponi^ lb
aeasion of parliament, with naanj otkor partiea*
Ian; hot thia waa the chief of U. Ho amdlv-
ther, that there waa no portieular dcnign Main*
his Miyrety'a life, hot that ho wna to ha esa-
ducted, aome time after being aeiaod ond oanisi
to the Tower, lo his Gennna dominiona; oiii
numy other particulars, aa I aaid bofore. Jl
thia, you may imagine, atmck aod aateoiihiA
no. I rqieatedly qoeatioocd Mr, Biihaidaa
aa to the certainty of tbeao facto ; be peniilii
in them: 1 then naked him whether hsbii
oommunioated thia cooferaaiion that he bsl
tokl mo of, that he had jnat bad ia Iboeiqf.ii
any one elae : he told me he had, to capliia
Nugent. Captain Nugent waa then on the
Tilt«^ard guard : he said, that while he vu
waiUng for me, which had beeo about an bsar,
or half an hour, or something of that sort, bs
had met with captain Nugent, nod, upoo icB-
iog him part of that conversatioa which hebsi
held in the city, he immediately ezdaiaNd,

* l^Iay be they had a mind to tamper with nir>

* too ;* or words to that purport.
L. C. J. De Grey, We caonot receive ge-
neral Craig's account of what captain Nofcst
said, or of what adjutant Richardaon aaid mf
tain Nugent aaid.

Did Mr. Richardaon tell yon where it wm
that he had seen Mr. Sayre, and held this a*
traordinary confersation r---He told me it o«
in the city ; I do not remember that he aca*
tioned the place. 1 desired not to know the
name : he came to me ofliciaJly aa his csah
manding officer : I desired him not to tcU ws
the name, wishing not to know particolaia.

What advice did you give him opaa lbs
whole, or did you lake him aoy whereP— f
thought it then my duly, aa it waa a matltf ^
auch importance, and be waa ao ^^rt^fidrrt sal
determioed in the facta he bad related la flft
to carry him before the oocretary of a|aie; ii
oonaeqoeaee of which 1 did coiiy hiai li«f

s

IL;

J Sa^yrt v. the Earl of Rodifvrd.

Iiinl R'lcbfriril's office : he w»a sdmiu^it In tn^

lonl ItiH-IW'uriJ'i pri-£eiiue ; I tbeo quilted tin

rooai, anil wm i>ut presenl at liis eiBminBtioa.

Crou-examioeil by Mr. Allet/ne.

Were you at lord Rocbford's nlien Hr.
Sayre wai commiUed N--1 mig'lit be in Iba
«uier uffiee, but I knew nothiiit; or it'

Do yon know ihi! time wben Mr, Sayre
withdrenr N--I cannot apeak |;io«iliTe wkeo it

_A. D. 1777.

fISlO

waa not spirit cnoiigii leA in tlii* couulry Ift
brinj aiicb • meaatire about ; but ibal, as ■»
nuy plau or inleolinu olBeizIng tbe kin|['a per- '
■on, he ii totally and entirely ifpiorant tbercotV
" 'I'akeu bdiire me, (be d^ty aoil year abvr*
wrilleii, RocuFOHD."

Cro&i-exBtnineil by Mr. Alleyne

BIr. Wallatt. Mr. Reynolds informs joor
Inrilsbip, that be Gaiii« into ibc room wlien Mr.
Kiyre wag at lord Itouhlbrd's office, aud told
Hr. Sayre Ibat ir be auHwered any qnentionB,
or aigned any pajier, be would inalanily leave
ihe room. 1 triab to shew your lordabip what
Mr. Sayre't examlualion was, before be maa
•10 piled by Mr. Reynolds,

ftlie ExamiDaiioii produced.]

CKarta Bricluhi sworn:

You Wlong to ibe secretary of state's office F
---Yes.

Is that your biinil-writJDg? — Yes; it is
what BIr. Sayre said before lord Roclitord : tbia
is I be true purport of wbal tie said : lord Rocb-
foril puterery question before I wrote it down,
to see if it was proper, aod iioilerslood. The

Sueitions were put, and bis anfoiers; and be-
ire I wiole ibem down, Mr. !tayre admitted.
I bvlirre, that ihey were ibe sense of hit

[The Examination read.]

rbe ExitMiNt-noN of Stepuen S*yiie, nq.
Uken befnre me, William Heory, Earl of
Ruchfurd, thin aSdday of October, 1775,
•• This examinaol saith. That, so far as re-
< (be Heeiog Mr, RichiirdHin at the Pen-
is colTee-bouse, upon tbe I9ih iomanl.
vlieres, is very true : and Ibsl '.hey went
• •1«ir«,ia also true; their con teraatinn turued
't&y upon Ibe cooteal now ileiwadiug in
icnca ; the conrersation began by Mr.
tfaanlson's apologiaiue for beio^ an officer
e guai^, instead of being now in ibe ser-
pof America. Wbai made this apology the
ire necessary, he baviog met him in the
pt\» some months before, when be declared
1, if be did not succeed in coming into

X~ uards agaio, be meant to proceed ioslautly
narica, and to gu into the service of that
Iholry : that he dufs not choose to trutt his
miory with Hr. Reynolds being present at
Ihi* conrersalion ; but that Ihere was a person
prcaent ; Mr. Richanlson proceedeil in saying,
Tbat be should be better qualilied for that ser-
L^oe, baving juit been appoioted an adjutant in
Mb* guards, Tbe conversation then took a turn
Bjiipon the (uiKbiels wbicb must arise, in coiisc-
pTMMoeof the contest QOw witli America: tbat
'Be, the exam iuant, acknowledges tbat he de-
clared to him, that he thou)iht nothing would
■ate both counlriet but a lolal chaiiL'c of both
«M^ wd anuore* : 4faM be wm unid Ibera

Ogether

the Willie they were
f— During the lime
was taken dowu by me in
writing.

Were you there when Mr. Reynolds cameF
— 1 was in the room when Mr. Reynolds ia-
truiled himself into that room.

How loDgafterdidyoucontiuietbere? — TiR
tbe examinalioa was closed.

Were you ia tbe toom when Mr. Sayre and
Hr. Reynolds were directed to withdraw Intv.
another room f — They weut into another room -
but 1 cannot lake upon lu
reeled: I was iu the rooi
lioQ was taken, and I i
Rochford signed it.

Then yon were in Ihe n

B to say they «

11 before the examina-
emaineil till my lord

. n plain Eniflisb,
when Air. Ssyre and Mr. Reynolds withdrew f
—Yes.

Jlow long afler that nithdrawmenl was it
before the warrant for Ibe cjmmiimeiit was
signed? — ll might be half an hour, or more, or
\e*.% ; I cannot tube upon me to say.

Wlittt .was done after Mr. Ssyre aod Mr,
Reynolds withdrew; did not lord Rochliird
iiiiinedialely give urden tor baring the warrant
made oulforcomuiilting liimF— Iheardordert
given for to make out tbe wsrraal.

Immediately, iir within a few ininoles? — I
understood that unlers were given : I am not
the clerk tbat made out the warrant.

Yoii beard Sir. Reynolds talk soiDetbinfc
about bail, did not you ?— I caoDOt charge ntj
uieoiory, I wish I could, to that maiter.

It is unfortunate that your memory can re-
collect all on one side and nothing on tbe other !
— I shall give answers to every qoestioQ in my
power, hut I will not speak to any thing 1 do

Did you hear any thing of bail being offered f
— I oannot say that I did ; aod, to Ihe best of
my koowledue and belief, there was not any
thing said about bail, that my lord Rochliird
said, in my bearing.

I did Dot ask you what lord Rochford said.
— Or any body else.

L. C. J. De Gretf. Was sir John Fielding
there si that time ?— lie was.

Mr. Seg. Doej/. My lord, it is adinilled,
thai mailer is pleaded, thai there is sucb an
Habeas Corpus and Recognizance.

Mr.Merj.^t/oir. TliaiRccogaiMnce wwmT-
terwards discharged fnr want of proseculiODi

The crideace for tbe defemUut being closn},
Hr. Serjeant (ilyiin made a rcptv in behalf of
Ibe plainlilT; aller wbicb bii lordship summed
up il|g ttukfis* u Uaejttry, who iriibdnw tar |

MMMV tiMf n^lf&f 4p flv |0V# He V40M

^^^^^^^V ^^V^B^^^ ^^P^'PW ^^^^^P^^^^P* ^^^^^^C^MW^PP^v ^^^^^^^P Bv

PMlM M very rttilr Wtg I«mi «onw al at »
IIm mmmmI cawr* Ha4 Iw UtMmm mrt !• ite
I«r4 Mi4)w Uts Wfmi4 l»ar« tlir^Hvo t«oie liflrt
iHi llf^ f#f turr ; w» foi|^lit iIm; •oldiery : but M
Mi iiMMBfUuM/l^ pfVMfl «»f |(ie faUcbooU «f the
cfc*ric«« tf'V'^i ri4#ir at ilii« diitance of lime, lb«
imf4rr$i$»l'mn wmn nlUrKtAlurr uMuopwUsd, It
li*4 y^u uf^^A Uy iittt AtlorfMrjr iitntnl that
Mr. M«yr« baJ hit^ treaii^J with atl poaaible
mUthtnt'Wt : it wm n^H to be nupputatd Uiat lord
MiMlifofil womM Ur»i 9uy mau unpo(it«!j, but
it wint r%irft$t¥\y inridi-iit that Mr. ttoyre ha«l
Uaaii trrau'il with th« full exintioo of official
fiKour froin th« httui'tnmnff to tlie end of the
biMiiMMMi, Tliff iMuifiy i(i'ri«ral warraiitt to
Mriaa iMifHT* had h«'eii more thafi once dehalMl
febd M'tllrd : 1 1 had hren arffuird in the caae of
Arthur Hffardtnore, and in the caae of Mr.
IVilkf*. The liecoril«;r profi^trd himielf a^aintt
All UKUurtn of |ia|i«!r4, and he wai per*iuad«d
that Mr. Ufynoldi had acted with ffreat pro-
l^riely at lord liochford*«, howerer harahly
oilier iiii^n init(lit treat hia behaviour, tie bad
given lord liochford very proper advice: the
oriMvn la ivy era were the peraona ivho were best
tble to have direoled hia lordahip in hia pro-
oeeilinf(a : they hati iloubileita lince Ireen c<in-
•uMtff, Mid tuul very winely adviaed the minis*
try lo drop the aflair. The liecorder apoke for
41 ooiMMltrBblo timet and with great warrotb iii-
Afiid Ui oUiBt'a cMe-

I

tPMcacelfce

~ Ibrm
offeloDy: im
be coneeivetf tlie aame role w«old beU. ViA
regard to tbe iaiprobabilitjr of tkt cbaige, ii
ooffht to be femeaiibrred boiv rTrcrditlj ■*
probable and apparaitly mbaur^l alt miirmptM a
lull or ddbrooe pnaors or aher gaveiaaMia
ever bad been, lo tbecaae of Heaij ibelA
of Fraoccy tbe people aoiveriallj 6mmitd
the report of an attempt to murder tbnr mh
narcb ; tbe coaseqaeace waa, they lotf ihar
king by it» be bang killed -in tbe paUc
9Hm!i§ of the city of Paris at noonday, H^
rounded by bia retinue and court. Btf
improbable alao were Uie attempts iipaM'
to have been designed on William tbe U
and Cliarles the Sod of England ! It mtwtit
Uierefore, lo be a main point for tbe jury's ai^
aideratioo, whether lord Rocblord badaoleiv
a magistrate ought to do in aiicb a case as iM
before them, and also wbetber Mr. KeyntMi
dedaratioo at lord Rocbford*s amtMinud Ii ■
legal lender of bail. AlW inaiancing tbe ■**
terial parte of tbe evidence, air William M Ai
whole to the consideration of tbe jury, wha^
an hour after three went out of oonrt aad^
abfiut two hours ; on tbetr retttin tbey Ivai'*
verilict for the pltioUff with a,OOM ^MtKtg^
Morn, CbroD.

i

1913]

Sayre v. the Earl ^Roek/ard.

A. D. irtt.

tI314

1. Whether the offer and refiisal of bail was
aJiuisiible evidence nii<ler the iasues joined
upoo the special pleas ? And if admissible,

3. • Whether the evidence f^iveo was a suffi-
cieot proof of an offer and refosal of bail, to
make the subsequent iro prison iiient illegal ?

The followiDgf is Mr. Justice Blackstone's
lieport of the proceedings in C. h, :

Mich. Term, 18 G. 3.

In trespass and false imprisonment, the
plaintiff declare<l,

1st. On a breach and entry of his house
on tlie 2Sd of October, 1775, and making a dis-
turbance there for twelve hours, break iu|f open
hta cabinets and escritoires, and takio(i|f away
his ffooils and papers, and for an assault on his
person, and imprisonirm^ him ten days, without
•oy lawful or reasonable cause. Snd. On a g^e-
Dcrml count for an assault and false imprisou-
■Mnt ; and laid bis damans at 30,000/.

The defendant pleaded, 1st. Not Guilty, on
which issue was joined.

3nd. He justified, as to entprin^f the house
and takini; the j^ooils, and imprisoning the
plaintiff for part of the time laid in the first
count, as beinir a privy counsellor and secretary
of state, and having received an information
upon oath, on the 20th October, 1775, from
one captain Francis Richardson, who on the
10th was an adjutant in the guards, tlien on
duty in theTuwer of London, and who deposed^
as stated at length in the plea, but substan-
tially, **That the plaintiff had tampered with
him to betray his trust as an officer on guani at
the Tower, and to intiuence the minds of the
soldiery, by a promise oi double pay, to assist
in a revolt and ehange'of government, which
he declared the people were determined to take
hitD their own hands ; and that there was a de-
aiffnr to seize tlie king when going to the House
of Lords on the 26tli of Octob^, and convey
him to the Tower, and from thence send him
to his German dominions, and that 1,500/. had
bceo already distributed among the guards, to
alieoate their affections. He also |)romised io
seod the informant money, to make himself
popular aiiioog the soldiers ; and desired when
the kiog was seized he would so order matters
as to let him and the populaoe into the Tower,
and put him iu possession of the magazines,
lee That their intent was to compel the king
to issue proclamations to call a new priry
couacil, and to displace such officers civil ond
military as their party should disapprove : and
that the lord mayor (Wilkes) was to order the
sheriffs (Hay ley and Newuham) to raise the
oofse comitaiuSf and keep the peace near the
Tower ; and also to order profier constables."
Upon which the defendant issued his warrant
to apprehend the plaintiff for hi^h treason, and
seize his papers ; and delivered the same, on
the 23d of October, to two of the king's mes-
soogers ; who taking with them a constabhs
cDtared the plaintiff's house, and seized him
and his papers, and brought him before the
VOL. XX.

defendant, who, upon examination, committed
the plaintiff to close custody in the Tower for
treasonable practices; but returned him his
papers. That the plaintiff was, on the 28th of
October, 1775, upon a Habeas Corpus, ad-
mitted to bail by lord Mansfielil, chief justice
of the King's- liench, and set at liberty, * Que
* sont eadem,' &c.

3d. The defendant further pleaded a like
plea as to the second, with respect to entering
the house, taking away tiie defendant's papers,
and imprisoning him.

4th. There was also a fourth plea of the
same purport to the second count of the decht-
ration.

The plaintiff replies to all the special pleas,
< De injoriii suft proprift absque tali causft,' Ikt!,
and thereupon issues were joineit.

This case was ai>i;ued last Easter term, by
Adair lor the plaintiff, and Walker for the de-
fendant ; and wheo the Court was ready to
give judgement thereon in Trinity term, it was^
at the pressing instance of the plaintiff's coun-
sel, adjourned for another argument to this
term : when it was again argued by Glynn for
the plaintiff, and Davy for tlie dH'endant.

For the plaintiff, it was urged, that under the
replication of * De injurid su& pn>pri&,' (!^c. it
is sufficient to shew any fact that is not consis-
tent with the justification. And though a' new
trespass cannot be given in evidence under that
issue, it may be shewn that the original tres-
pass was unjustifiable. That though the ori«
ginal caption might l>e justified bv the matter
contained in the plea, yet the suhsequeut de-
tainer might be shewn to be oi\|ustitittble by
the tender and refusal of bail. A lawful act
may be turned into a trespass by the subsequent
misbehaviour of the party ; as by abusing a
distress; Salk. 201. Gargrave and Smith.
Riding an impounded horse. Yelv. 96. Hee
also the Six Carpenters' case, 8 Co. 146, and
Withers and Ilciidley, Cro. Jac. 379, where it
is held, that an unlawful detainer ni'ter a l<^al
taking is a fresh and illegal caption. They
said, the second question was too dear to make
a doubt. The tender could only be conditional,
as it was not known for what crime the plaintiff
would be committed : and iuimctliately after
the tender, he is committed to close custody,
whidi prevented him from then offeriuj^ bail.

And per Gould, justice. It is held m Lon|p
Quinto, 13, that in bailable cases it is the duty
of the magistrates in the first pluce to demand
sureties.

For the defendant it was argued, that the
evidence of tender and refusal of bail was not.
adroissiblp, because, Ist. It is not within the
issue, which is only on the truth of the plea,
and that the plea does not mention thia fact. A
general replication (like the nresent) only de-
nies the plea. A special replication coofessps
it, but alleges new matter ; this therefore, be-
ing new matter, ought to have been replied.
In King end Phippard, Carth. 2K0, in action
of assault aod battery. A plea • son aisault

4P

•1315]

16 GEORGE III.

Action Jor False ImprisomnenL

[WW

< demesne.' Replication that the defendant
entered the plaintiff's bouse and nAisbehafed,
whereupon he ^eniiy put him out. Held that
the replication was good without a traferse,
absque hoc^ for it ought to be a«special replica-
tion, because this new matter could notbe gifen
in evidence on the general replication, * De in-
* jurii suii propri&i &c.' Whatever confesses
and a?oids, as the tender of bail does in this
case, must be suggested on the record, that the
adverse party may be able to meet it in e? i-
dence. It is collateral matter, and out of the
issue of the general traverse, which only goes
to the facts of the plea. Therefore all subse-
quent misbehaviours, as abuses of distresses,
lee. are in the regular course of pleadinj^, con-
stantly replied, and cannot be giveu in evidence.
Besides,

2. This evidence does not support the action,
which is for a positive fact. This is only proof
of a negative, a mere non-feasance. See the
Six Carpenters' case. Resolution the second.
Ld. Rayro. 1399.

As to the second question, Tender of bail
must be like the teniler of money. The bail
must be produced in order to see that they are
current. A promise, or offer of bail not pre-
sent is not sufficient, nor is the subsequent
commitment a refusal, if no bail were readv.
Vhe tender must be absolute, not conditional ;
Salmon and Percival, Cro. Car. 196. Sir IV.
Jones, 226. Smith and Hall, 2 iMod. 31. On
an action of false imprisonment the defendant
Justified under a Latitat, the plaintiff replied
(which shews the true course of pleading) a
lender and refusal of bail. Held, that as the
arrest was legal, case and not trespass lay for
^is refusal.

De Grey, chief justice. As the case is so
clear on the first question, there is no necessity
io give any opinion on the second.

It is a certain rule that no new matter, fo-
reign to the issue joined, is admissible as evi-
dence. The present replication * De injuria
* 8uk propria,' Sec, is a general traverse of the
vrhole of the plea. W hatever therefore goes
to disprove the facts of the plea is proper evi-
dence. What disproves none of them, is im-
proper. This refusal of l>ail, if true, disproves
i^othing that is advanced in the plea, and there-
fQre ought not to have been admitted.

Gould, justice, of the same opinion. There
- may be a partial traverse * absque tali caus^,*
and a general one. This is a general traverse,
uiifler «vhich no new matter can be given in
evidence. The case in Carthew, 280, is a
strong authority for the defendant.

BltLckstonc^ justice, of the same opinion.

Nothing ought to be admitted in evidence, bst
what is material to the issue joined, either to
prove or disprove it. Nothii^ is in issoe opoi
a special plea, but what is directly travened:
and the general replication, * Oe injar^ ssi
' nropri& absque tali caas&,' traverses all the
nilatters, and nothing but the matters eontaiacd
in the plea. The plaintiff declares on a ^
which at first view is a trespass. The de*
fiendant in bis plea acknowledges that fact, bat
states such new circumstancxa as (if true)
amount to a justiBcation. If the plaintiff ess
suggest additional new matter, which sbeai
that the defendant's assertions (though trse)
will not justify thetrespass committed, heoagkt
to reply that new matter in a special replici-
tion, that the defendant may demur or tib
issue upon it. Bnt in the present case be bas
chosen to reply generally, the imprisonmest I
complain of is still an injury, because all ttat
you have said in justification is absolutely ot-
true. • The words « De injuria sui prcfril,'
of his own wrong, are merely introducfory;
the traverse is contained in the words ' ahsui
*tali caus^,' without the cause alleged by w
defendant. Whatever tberefore goes Is dih
prove that cause is admissible evidenoe, bsl
nothing else.

Nares, justice, of the same opinion. It mi
held by all the judges on a reference from thii
Court in the case of Selman and CoarlBcy,
about the 13 or 14 Geo. 2, that wbereaddcact
confesses and avoids, it cannot be given io efi-
dence on the general issue. See also 3 fin.
7, pi. 8. Cro. Jac. 147.

Judgment for the defendant.

See the Case of Wilkes, on a Habeas Corpsi;

vol. 19, p. 982. Also that of Leach against tbc
King's Messengers, for False ImprisooiDfft,
vol. 19, p. 1002, and the Case of Seizurt of
Papers, p. 1030.

In the Letter from Candor to the Public .4d>
vertiser, pp. 15, 16, it is asserted, that ** Mr.
Pratt never was consulted at all, and but oaec
even spoken to, about any secretary's warrasi;
and then as Mr. Pitt avowed io a certain ao|^
assembly, * his friend the Attorney told boa
the warrant would be illegal, and if he tmied
it he must take the consequence, nevertbelai
preferring the general safety in time of war tsd
public danger to every personal coosidertfios,
he run the risk (as he would that of bis bcsd
had that beeu the forfeit upon the like motif e)
and did an extraordinary act upon a si
foreigner just some from France.' "

7]

Trial of James Hill, &e.

A.D. 1777.

[I3IS

The Grand Jury.

. The Trial of James Hill otherwise James Hinde, otherwise
James Actzen or Aitken,* (known also by the name of
John the Painter) for feloniously, wilfully, and maliciously
setting Fire to the Rope House in his Majesty's Dock- Yard,
at Portsmouth: had at the Assizes holden at Winchester,
Before the Hon. Sir William Henry Ashhurst, knt one of the
Justices of his IVfajesty's Court of King's Bench, and the Hon.
Sir Beaumont Hotham, knt. one of the Barons of his Ma-
jesty's Court of Exchequer, March 6: 17 Geouge HI. a. d.
1777. [Taken in Short-Hand by Joseph Gumey j and pub-
lished by Permission of the Judges.]

James Hill, otherwise James Hinde, otherwist
James Actzeo, on tbe said 7tb day of* Decem-
ber, in tbe year aforesaid, with force and arms
at Portsea aforesaid, in the county aforesaid, a
certain building erected in the* dock-vard of
our said lord tbe king there situate, called the
Rope-house, f/^lonioosly, wilfully and malici-
ously, did set on fire, and cause and procure to
be set 00 fire, against the form of the statute in
such case lately made and provided, and
against the peace of our said lord the king, his
crown and dignity.

And the jurors aforesaid, upon their oath
aforesaid, Jo further present, that the said
James Hill, otherwise James Hinde, otherwise
'James Actzen, on the said 7th day of Decem-
ber, in the year aforesaid, with force and arms
at Portsea aforesaid, in the county aforesaid, a
certain building of our said lord the king there
situate, in which great quantities of naval
stores, that is to say, twenty tons weijg^ht of
hemp, ten cable -ropes, and six tons weight of
cordage, of our said lord the king, were then
placed and deposited, feloniously, wilfully, and
maliciously, did set on fire, aiul cause and pro-
cure to 1>e set on fire, aealnst the form of the
statute in such case lately made and provided,
and against the peace of our said lord the king,
bis crown and dignity.

The Prisoner was arraigned upon the above
Indictment, to which he pleaded Not Guilty ^
when the following persons were sworn :

The PETrr Jury.

P. Taylor, esq.
C. Saxton, esq.
John Pollen, esq.
T. Gatehouse, esq.
T. Sidney, esq.
J. Amyatt, esq.
Tbo. South, esq.
H. Harmuod, esq.
W. Harris, esq.
Richard Bargus, esq.
Philip Dehany, esq.

»unt Palmerston
on; Hans Stanley
I. Worsley, hart.
[.P.8t. John,knt.
V. Benett, knt.
. Ogle, knt.
en ton, esq.
emonger, esq.
. Jolliffe, esq.
orsley, esq.
KK>ner, esq.
idge, esq.

Indictment.

Sauthamptonf

E jurors for our lord the king, upon their
present that James Hill, otherwise James
le, otherwise James Adzen, late of Portsea,
e county of Southampton, labourer, on the
lay of December, in the 17th year of the
I of our sovereign lord George the 3d, now
of Great Britain, &c. with force and arms
ortsea aforesaid, in the county aforesaid,
ty tons weight of hemp of toe value of
. ; ten cable- ropes, each thereof being in
;h one hundred fathoms, and in circum-
ce three inches, and of the value of 80/. ;
lix tous weight of cordage, of tbe value of
. ; the said hemp, cable- ropes, and oord^
then and there, being naval stores of our
lord the kinq^, and then placed and depo-
in a certain building in the dock-yard of
taid lord the king there situate, called the
vhouse, feloniously, wilfully, and mali-
ily, did set on fire and bum, and cause
>rocure to be set on fire and burnt, against
Ibrm of the statute in such case lately
i and provided, and against the peace of
»aid lord the king, his crown and dignity,
id the jurors aforesaid, upon their oath
!said, do further present, that the said

Some account of this man is given in the
lal Register for 1777, Hist, of Europe, p. 28.

Henry Lucas, of the Soke.
Richard Long of the same.
Robert Mondy , of Thruxtou.
John Cole, ot Upelatford.
.William Cole, of L(»agstock.
Richard Yokes, of Kings worthy .
Rechab Thurup, of Itchin Stoke.
I^muel Maunder, of Hvde- street.
George Newsham, of \Vickham.
John Kent, of Fareham.
John Berry, of the same.
Charles Cobb, of Oosport.

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riKin had been M-f n U|)on the day vi the 6rp.
Iiirkin){ ^er}' much aliout the lleiup-htiwe wJ
about I he Uo|>e-hou<ie; then il ocrurreil. m^
a iiKin had been locktrd into the Ko|if^hiHi*rT
and nithsoincdifliculty bad |j^touta^aiD;ii(9
it occurred, that the |NfniOn upon whom »!>!■>'
^iii, M !• ihf pHxcding chu|iti:r of that nurk. i cion then fell, i'roni veveral vague iodcfimtecir*

IniUl; 'It.il iil'iiii' M4i» cMiiiiiiiii'd. Cjriilli'iiifrli,
ii lii III f I KKii y III ill* iilinii to \oii thiit the fir«
liiiil.f <Hii III till- 1 ii*<« tiiiiiiiHt fiiirtof ihf'biiildiiii;;

■* M'.l. |'M;.M «-. '41 Si- |':«Ht'< VU'HH of
Ihr I iO'.iii,! Iiit|i. Ti, «. ;Wl I'oi I he law of Af-

ISSl] far setting Fire to Porlsmoutk Rope-Hmte. A. D. 1777.

ri3s?

cumsUnces, w«9 one whose sirname was not
known, but who waa calletl John, and who was

Sbusinffa a painter, who had worked for a
r. Gouldingf, a painter at Titch field, at a gen-
tleman's house in the neif^hbourhood, and that
was the origin of the name given to him of
John the Painter.

John the Painter then beinic the man upon
whom suspicions stronj^fl}' fell from several eir-
cumstanres, none fif which concluded directly
and positively against him, bnt all of which led
to extreme stroni; Kii^picions ; and the circum-
stances that catisH these suspicions, were put
together m the furm of an information, and laid
before a magistrate, in order, if possible, to
have iWiH John the Painter apprehended and
further enquiry to he made. Upon this, there
was an advertisement published m the |iapers,
with a reward of 50/. for the apprehending
John the Painter, describing him as well as they
were able, and his person and his dress were
very inifficicntly descnbed by the people who
bad seen him liefore.

A very worthy honourable gentleman, whom
1 have m my eye, and who is a Tery great
friend in the public, and in the strict and trite
■ense of the word, a patriot, having seen this
advertisement, very actively stirred himself in
the business, and was very much the cause
of the apprehending of this John the Painter.
John the Painter %ias accordinifly taken up, I
believe, in this county, at Odiham ; and you
'Will be pleased to mark, that there was tiien
Ibund Ufion him, a loaded pistol, a pistol tinder-
box, some matches, and a buttle of oil of tur-
pentine; he was examined, hot he had too
nach sense, he was too much guarded to make
any considifrable discovery upon the examina-
tion tiial he underwent Wfore a magistrate,
•od had it not been for a circumstance, which
I am now going to mention to you, it woold be
an extremely iltfficult matter to affix the crime
upfin this person at the bar, however satisfied
one mi^ht have beeu in one's own private judg-
inent of his guilt.

It hapi»ened that there was one of the same
business, a painter, who had been as the pri-
soner hkruisc had liecn, a painter in America;
for this gonileuian (the prisoner) has worked in
America ; he is an American, not by birth, for
by birtii he is a Scotrhinan, but he is an Ame-
rican, there he was settled, from thence he had
lately come, and thither he meant to return.
One of that business, and wlm likewise had
worked as a painter in America, it was ima-
gined might possibly know this John the
Painter, and thfrelore he was sent for to sir
John Fielding's in Bow-street, u|M)n the 7th of
February, in order to be shewn the prixoner,
and to inform the inai;istrate whether he did or
did not know him ; that man being asked the
question pnswered, that he did not know him,
ami to the best of his recollection had never
■een him in all his life time ; there was an end
therefiire, of that business ; as that man had
workeil iu the same place, for I think the pri-
aouer had worked at Philadelphia too, it was

▼ery likely that he might have known him, but
he happened not to know him at all ; that per-
son l»eing dismissed from the room, fihere tliis
examination, though 1 can hardly call it an
examination, where this little matter had pass-
ed, and retiring to the other room where the
prisoner was, the prisoner having been infomed
that this person, whose name is Baklwin, waa
an Atnerican and a painter, natarally enough
beckoned to him and desired him to ait down by
him. Baldwin sitting down by him, a conversa-
tion began between these people, tonehing their
trade, and touchinc^ America and Philadelphia,
that part of Amenca in which they had lived,
thedisunce of the place, a few names, and some
general conversation ; the place and occasion
would not admit of a long conversation. The
prisoner at the bar desired Baldwin to do him
the fiivour of a visit at New Prison, Clerken-
well, where he was going, desired he wonid be
so good as to call npon him, he should be gla«l
to see him. Now, gentlemen, here let me tell
you, for fear I shoold for^t it, that all this was
tlie mere fruit and offspring of accident ; this
Baldwin was not set upon him, was not desired
to obtain any confession from him, nor desired
to make any acquaintance with him ; bnt an
intimacy passed between these people for seve-
ral days afterwards, before any body concerned
for tiie prosecntion knew any thing of it. It ia
fit the world should know that. In conse-
quence of this short conversation that passed
at sir John Fielding's, Baldwin went as de-
sired by the jirisoner, to visit him at Clerken-
well New Prison ; when he was there, a con-
versation passed between them of no very great
importance, it was only general, concerning
persons and places, some of wfiich both of
them knew, some of which only one of them
knew. Tlie next da^, Baldwin paid him ano-
ther visit, for the prisoner liked his company,
and it was a very lucky circumstance ; it was
indee<l the providence of God that this man
nisced that fortunate (for fortunate I may call
It for the public) confidence in this Baldwin,
by which be afterwards made the ample disco-
veries that you will hear by and by. The pri-
soner told him after various visits, for he visited
the prisoner at his own request almost every
day, for, I believe, near three weeks from that
time, and it was not for many days, not until a
full discovery was made, that Baldwin com-
municated the matter to any bo<ly, and when
he did, he communicated it to an honourable

Kerson not at all «H>nnected wiih government ;
e told him, among other things (I will de-
scend to the particulars by and by, for a very
striking reason which you \\\\\ go with me in
observing when I descend to them, he told him)
that he had lately come from Prance, that he
had been employnl there by a gentleman,
whom he wasi surprised that Baldwin did not
know, as he was a man of so much note, and
whose name had been so fr^-quently in the
news-papers, which was a Mr. )<$ilaB Deane ;
that Mr. Silas Deaue was a very honourable
gentleman, empl(»yed by the congrfia in Ame-

1S2S] 17 GEORGE III. Trial of James Hilt aUas John the Painter, [ ISU

rica, as well as another wery hon. gentleman, a
Dr. Franklin ; that Mr. Silas Deaue liad ero-
plove«l him in the noble business in which he
bad been eng^aged ; that his employment was to
set fire to the several dock-yards, to destroy the
navy of Great Britain ; that he had under-
taken that work, and that he was to have a pe-
cuniary reward for it; that Mr. Silas Deane
was his employer ; that this was a uoble act,
this was a patriotic measure, this was what
all patriots would exceedingly appland, this
was the right way to expose government, this
was the way to render Great Britain for ever
subject, by bending its neck to the yoke of
America, this was the way by which we
were to prosper ; this great work was to be
effected by his hand under the employment of
Silas Deane, and that he did not at all doubt
but that Dr. Franklin was likewise engaged in
the same good work ; he told him, he had
taken Canterbury in the way from Dover ; and
now I am going to descend to some i^articulars,
which I shall by and by have an occasion to re-
peat, in order to shew you that it is impossible
(I will not change the word) that it is impossi-
ble but that Baldwin's account should be per-
fectly true; he told him, that in. his return
from Paris to England, he had landed at Dover,
and so came through Canterbury ; and at Can-
terbury he had engaged a man to make a tin-
machine, which you will see by and by some-
what resembling a tin-canister, the purpose of
which was, to act the part, if I may so say, of
a lantern ; that is, that a candle might be en-
closed in it, and yet the candle perfectly be hid,
80 that no eye should see the light ; that the
man he employed to make this tin-canister for
him, was an awkward fellow, and set about it
in a way that convinced him he was dull, and
did not coinpreliund his meaning; but that his
servant, a lad, had a much brighter genius
than his master, and very well understood his
directions; tiiat he set about the work, and he
made the canister for him. Gentlemen, you
will remember these particulars ; he told him,
that he had ordered two more at another
shop, but had not time to stay for them ; and
so left them behind him, but this canister he
took with him ; he told him that when became
to Portsmouth, he took a lodunng; I had for-
got the wooden- box ; he told him that he had
likewise got made for him a wooden box ; I
told you that the use of the canister was to con-
tain a candle, hidinj*; it ; the use of the box was
to contain the combustibles which were to be
lighted by the match, in order to set the place
on fire ; the preparation and the ingredients of
this you VI ill have an account oL He told
him he had taken a lodt^ing at Portsmouth, at
a Mrs. HoxelPs, uhere he had made some pre-
parations for the work of setting the place on
fire ; 1 should have told you in the conversa-
tion with regard to Canterbury, he told Bald-
win likewise of a quarrel which he had had
there with r dragoon, which had led to a sight
of this canister under the flap of his coat ; he
said at Mrs. Boxell's he had iiiade preparations

in order to set the store- bouses oo fire ; and be
told him ihere the manDer of his making tUi
composition ; that it was by Kriodiog cbareoil
with water very fine upon a colour stone, sack
as painteK use in grinding^ their pamt, not vith
a pestle and mortar ; that it was ground toaaci-
ceeding fine powder ; that it was then to be nil-
ed with gunpowder : he then meotioned to bin
how it was to be diluted with water, and whet
proportions of the powder and the chsrestl,
and to what consistency it was to beisiisd;
and so this ended with the particulara of btv
this composition was made : the prisoner liM
him that in the afternoon of the 6th, the dsy
before the fire, being in the Uope-bouse, beget
a parcel of hemp and strewed the hemp abMt
where he intended the match to be ; tbitbe
laid a bottle of turpeotioe on its side, vilh
hemp placed in the neck uf the bottle insleidrf
a cork ; that he' laid the match upon a piece tf
paper in which was some ffonpowder, tai
over the gunpowder some hemp strewed fciy
light ; he told him that as soon as the onlcfc
reached the gunpowder, it would fire the
hemp, and he mentioned also his throvisf i
quart of turpentine about the hemp ; all tbcH
particulars he told this man of the naanacr rf
setting it on fire ; I should have told you thalkt
said this Mrs. Boxell waa impextineat, aii
turned him out of his lodgings ; he toki biai
circumstance of his being shut in at the Rspe-
house ; that he was so long in the place abetf
this work that the time of shutting it up had a^
rived, and when he attempted to go out at iki
door at which he got in, he <»uld uot gcto^;
that after having walked up and down wilbeet
his shoes to avoid being beard, and eudeavosr-
ing to get out quietly, finding all that ioipiicii*
cable, that he knocked, and cried out bolle!
upon which a person came to the door and ask-
ed who is there ? that the person directed bia
(o go straight forward, and po&sibly he wouU
find a door open ; however, lie did bappA
to get out: he mentioned alf>o the circan-
stance of his calliug to a person uu the outside,
under apprehensions of his l>eiug shut io ; Ik
likewise told his acquaintance Mr. Baldvio,
that he had been befure on the 8ame da^ iotlie
Hemp-house ; it was the Rope- house 300 o^
serve that was set on fire ; that in the Hrfli{r
house he had laid the tin canister which be w
got made : you will be jileased to olwerve be
did not effect the fire in the llope-houjcby
means of the tin canister ; I have tuM \Q<
already how he effected that, but the tin casii-
ter he got made at Canterbury was laid in ik
Hemp-house, which was not setonfiri*, for by
the providence of God, the matches which \iai
been lighted had luckily gone out ; that ibeit
he had likewise laid a square box, in wbicb
square box there was room to put a casille ;
that he had put into the Ik>x tar and turpeatisc^
and hemp and other combustibles ; these tbiigi
he said he placed in the Hemp- boose; tbit
making all this preparation, and doing ibii is
the Hemp-house, had taken up a great deal ef
timcj that he was so much beatcd, tbotigb ii

1 323 J far seiting Fire to Portsmouth Rope*House» A. IX 177T.

U^se^

the month of December, that he had pulled off
hill coat, which he could not find for some time;
that when he found it, there was a good deal of
bemp liickingf to it, which he picked off aa
well as he could ; he said the next day be went
into the Hemp- house, in order to set it on fire;
the candle was placed in the wooden box, and
within this tin machine ; and he mentioned to
bim this circumstance likewise, that he had
bougfht some matches for the purpose of
lighting it of a woman at Portsmouth, whiih
he supposed were damp because he could not
make them catch fire, in order to light the can-
dle ; ao you see the saving of the Hemp- house
from destruction that day, was, because the
matches were not so well made, or being well
made, had been so long made that the wood
was not dry enough, and would not catch fire,
ao as to enable him to light the candle ; for if
the candle had been lighted, the Hemp- house
must infallibly have been burqt; then, he
aays, that not being able to set that on fire, he
got some matches of a better sort, and then re-
toraed to the Rope- house ; that there he placed
himself in such a way, as that no body couM
ate it ; when he strnca a light, that he lighted
the oiatcb, and every thing being prepared be
went away, leaving that to be burnt, very
mocb vexed that he was not able to set the
Bemp- house also on fire; that he set out as
fast as he could from Portsmouth ; that just
after his leaving the town he overtook a woman
ID a cart ; that he got her Iteve to get into her
eart, for the sake of expediting hfs journey ;
that he gave her 6d, in order to make haste
with him ; that he then hastened to London as
last as he could. Another circumstance, like-
wise, he mentioned ; that, besides the lodging
yvhich he took of Mrs. Boxell, he took another
of a woman on Portsmouth Common ; the
pious man mentioned something to be done to
the poor woman of whom he took the lodg-
logs ; the^ had a very fortunate escape too, for
his intention was to set those lodgings on fire,
io order to engage the engines, that tney might
pot assist to extinguish the fire in the dock-yard ;
hat by good luck that did not succeed neither ;
homing a house was nothing to him ; he
lohl Baldwin a circumstance of his leaving a
haodle at the lodging on the common ; he saki,
that he had come away from Portsmouth in so

rit a hurry, that he had not time to go there
it, and that bundle, he said, contained three
hooks, the titles of which he mentioned ; there
waa an English translation of Justin, another
of Ovid's Sletamorphoses, and there was a
Treatise of the Art of War and of making
Fire Works, or something of that sort, and
iihowise a pair of breeches, a pair of buckles,
•ml a French iMissport; all these things, he
aaid, were in bis bundle, which he had left
with the woman, at his hdgio^ at Portsmouth
Common ; now all these particolars he told to
Baldwin. I mentioned to you ^ost now, gen-
tlemeo, that it would come out in the course of
Ail cause, that it was impossilHo for Baldwin
lobafoiavcBtedthisitory; bnttbathauftbey

that the prisober had told it to Baldwin : noir
I will tell you why I said so ; Baldwin havin^jf
made a discovery of these conversations, that
he had held with this man, to the effect I
have mentioned, then it was that an enquiry-
was made into tliese particulars ; for that led
to all the discoveries, of which you shall now
have au account, and which will be proved to
you in evidence. In the first place, I will
mention to you, not in the order of time in whiciv
the discoveries came out, but in the order of time
in which I have mentioned the transactions them*
selves to have happened : having told the
story to this Baldwin of what had passed at
Canterbury and the other places, messengers
were sent to all these places to find out the
people referred to, and to see whether these
several accounts were true or no ; upon enqui-
ry, they found out the persons who made these
tin canisters, not only the persons that made
the tin canisters by his directions, which he
had left upon their hands, not having time to
stay for them ; but we found out the wery per-
son who made the tin canister that was left io
the Hemp- housed in order to set it on fire;
vou will see the very boy who made this, and
he confirms exactly the account as related by
Baldwin ; that his master having first been
employed to do this work, and not rightly
understanding the instriictioDS he received, that
the boy understanding ihem, made the canister,
and the boy will swear, that the very canister
now to be produced at your bar, and which
was found in the Hemp- house, he made for the
prisoner. The story of his quarrel with a dra-
goon at Canterbury, will be confirmed by the
dragoon who quarrele<l with him ; the stripping
off, or taking up the lappet of his coat, and the
seeing the canister under it at that time. The
making of the wooden box will be proved ; the
witness swearing to the identity of the person,
by whose order it was made, ftlrs. Boxdi will
be produced to you ; she will tell you, that this
very prisoner at the bar, came to her house to
take a lodging, the day, I think, before the
fire happened ; that, afterwards, observing a
strange sulphurous smell in the lodging, she
went about, inside and outside of the house*
and could not guess from whence it came:
that the next morning there was the like smell ;
she then traced it to the very room that the
prisoner had taken to lodge in ; she found him
at work, in preparing combustibles, and there
was a stench of ^un|Mwder, or nitre, or what-
ever it was, which I mentioned to you just
now from the account he gave to Baldwin,
how he had prepared this ; we will produce to
you the person, noon whose colour- stone the
prieoner ground the very charcoal, and who
saw the prisoner grinding the charcoal. Gen-
tlemen, we will prove the circumstance, I men-
tioned to jjTou, of the Rope- bouse being shut,
and the prisoner being shut in ; we will prove
by the recollection of the people in the rope-
yard, that there waa a man exactly in the cir-
cooistances that he describes himself to Bald-
wia to bafo been b, making a noise; asking

1327J

17 GEORGE III. Trial of James Hill alias John the Painter^ [13H

the witness bow he could ^*ii out, ami bis giv-
ing bim the best directions be could, leaving
him there speskini^ to the waichmnn, the
watchman sa^inir, he must stav there all night,
the hour of call bring over: biU perfectly le-
collecting the circumstances in the viay in
which he himself described tlitm. Gentle-
men, we will likeM ise |iroduce, — it is marvellous
that we are able to do it ; but it is owing to
the great vigilance and care of the noble person
who was at the lirail of this enquiry, and u ho has
spared no pains, in order to investigate every
circumstance as far as possible ; thou>rh one
should not have supposed, that any human
enquiry could liave reached such circumstances
as these ; — but we u ill pru<lnce to you the very
woman that he bought the matches of; she saw
him yesterday, and she will tell you, that that
man at the bar, and she noted him particularly,
because he y>\ as not such sort of a man as
usaolly come upon these errands ; he came to
her shop tlie day before the 6re to buy a
bundle of matches; that he asked her whe-
ther they would light quick, rejecting one
bundle and choosing another ; she remembers
his taking out a handful of silver, and having
but one halfpenny, she remembers that parti-
cularity ; the man being dressed so particular,
and unlike persons that call upon such errands,
struck her observation, and she w ill swear to
the identity of the person. There is yet be-
hind, one more circumstance, that places it be-
yond the possibility of suspicion ; the bundle
ihat I told you of, could not be found ; fur Mrs.
Hoxell, where he actually did lodge, nor any
body there, could hear of any other loilging
that he had taken ; she remembered that she
had ;*een such a hniii'le, that the prisoner had
with liira the first day ; but what was become
of the bundle, and where he had left it, or
whether he took it away with him, God Al-
luighty knew ! nohudy could give an account.
At la^t, after great itearch and enquiry, the
bundle was found in the possession of another
woman, whose lo(l<;ini;s lie had taken, and who
had no suspicion about what the man was ; she
wondered that he liaJ not returned, and kept
the bundle unopened, expecting hiiu to call
every day for it. Upon openin*; the bundle,
there were the vrry things he had described ;
an English Justin, Ovid's Metamorphoses, a
Treatise on the Art of War and of making
Fire Works, ami there was thi^a pL-rson's pass-
|iort from the Fiench goveri.meut ; all these
things were found just exactly as he had de-
scribed them to Mr. Baldwin ; and you will
have likewise an account, that in that bundle
are a pair of buckles, licloogiug to the prisoner,
whiim a witness will be protlnced to you to
pro«e that he has y<in, as far as he can re-
meniher, that p:iir of buckles in the shoes of
the prisoner, (lentlemen, there is yet one
more circumstance ; you will have the woman
that took him up in her cart, and she w ill swear
to the very man, ti» the bringing him two miles
in her cart, and while they were just at parting
the blaze of the hreat the Rope-boose burst out.

Now, when you have all these circumstaiicct
proved to you in evidence, will oot jou uy dm
I was well w arranted id iiisistimi^ that it wit
inipfissible for Mr. BaUlwin to baT« iDvefitcd
this story ? for these discoveries were madeia
consi qucnce of Baldwin's relation ; not tkul
Baldwin's relation was after the discoTcriet, ftr
it was the relation of Baldwin from the mMlh
of the prisoner that led to a discovery of aQ
the particulars which I have now mentiooed ts
you ; the tenth part of these circumstaacfs,
which 1 have opened, would serve, I ihoald
think, to decide the fate of any nian stawfiair
in the prisoner's situation ; built is the i»i«b ■
the public, it is the wish of government, tbitill
the world should know the infamy of thistrui-
action, and that they should know to xihon
they are indebted for the sorrows they have
felt, and how much they owe to the pmvidroa
of God, that America has not been able totally
to destroy this country, and to make it bow ill
neck, not only to the yulce of America, bat to
the most petty sovereign in Europe ; for let ibe
Eoj^lish navy be destroyed, and here vm t
hand ready to eflect it ; let hut the Ea^islk
navv l)e destroyed, and there is an end of ill
we hold dear and valur.li!e ; the importance i
the suliject, the magnitude, the extraordiorj
nature of the thing calls for a more particpltf
investigation, than any other suliject of «bl
kind soever could demand ; and tberefort I
need, I hot)e, make no npolugv ibr having <ifr>
scended so particularly into tiiese uiiaute, if
any of them can be called minute, particahn
of this story.; wc shall prove all these circsHr
stances to the full, and surely there can be n
doubt what shall be done with the man. I duft
be glad to bear what he has to say for himidf,
and 1 shall be glad if he is able to by tbif
uuilt at any body's door besidps tho^e to whoa
he has laid it. I wish Mr. Silus Doane ^t't
here ; a time may come, perhaps, when he uJ
Dr. Franklin may he here.

Priioncr, lie is the hooestcst man ia tk<
world.

Jame$ Russell svvoru.

Vou are, I believe, employed in Portsmoolli
dock :* — 1 am.

In what capacity ? — I am clerk to the cleric
of the Hope-yard.

Do you remember the day when the Rrpe-
house was set on fire? — Yes, it was on 2Situr-
day the 7lh day of December ; the fire «tf
first perceived at half after four in the sfiff-
noon.

Was the Uopi'-house consumed by that fire'
— Vrs, entirely.

What was in the Rope-house that wmshorat.'
—Some hemp-toppings which were in tbt
middle loft of the ll('mp-hi>use.

Was there any thing else that was burnt.'-*
Some cordage on the ground tlo«)r.

It is the place where cordage and htnf
usually are kept? — Yes.

And there was some there at thai W^
which was burnt ?— 'It was.

J Jar setting Fire to Purlsmoulh Rnpe-ffouie. A. D. 177T.

[1330

Dili yao at any time tiad tiny tiiiag parti-
cular in llie Hemp-houae %t l*orl»mautb ?—
Ves, on llie I5lli nl' January I fouoil a tin caac
in Ibc IIeuip-liuii9«. QTlie Mitiieu ■• nliewn
« tiD case or canister.] Thii apreari lu be Ihe
tia cnie that I look up in ilie Hemp-tinuke ;
tbere m a piece of wooil hollowed out, wliicli is
toaide it, add a iliin piece uf wood naileil nt the
top or it; there are tnalchei, and lar, and oil,
and other conibuslibles. I have no doubt hoi
tbia is the tJQ r^ise; Ihisboxgoes intoit ; they
were le para te when I lound them.

What did you lind else heaidra these two
things i* — A hiiiile, which appeared by thegmell
lo bare heM spiiils of tiirpenliae, or soinelliiiig
or that qilality ; and ihfre were some common
wooden matches, such aa are gc^nrrally sold at
chandler's 11 hu pa, which I lound lyiu); in ibe
Hemp'bouae ju« by this lio canister.

Wherealiiiut in the ilenip-buuBer — In the
centre of the mow uf heiu|i there were M>me
buudles of refused berap. There is certain
hetnp irhich is refui^cd, which ii not according
ta Ibe contmat, which is pnl by and ii returned
lo the merchant; this was behind ibo$e bun-
dles of hL-mp whik:h were then in the Tery cen-
ter of the mow behind serer-il oiber bundles.

Were these things easy to he discurercd, or
were tbey concealed? — Tltey bad tbe appear-
ance of cunceal men t.

Could they be iliscoTered uitbonl removini.'
Ibofe bunillea of hemp, behind which they were
put P— Nut cnnrraieuily. There was a pai-
Mije that went up ai ihe end of the bandivs of
this hemp, and a person pruliaUy might hare
diacoTered it. At the ends of the bundle of
hemp, there is a hllle passage ; a pf rson inijtht
b«*e gone up lo the upper end of it and have
riiacotered ibiK, if he had bad any appreheu-
•iona of such a ibiug.

Was Ibere any loose hemp near il ? — Yes,
wbat we cull ■ dunnage ;' that is the refute uf
Ibe bemp which we generally lay al the hot-
tarn of the hemp to preserre it from aoy mois-
ture that may arise from the found4lioo; those
cotuhusithles were laid upon ihal ; there was
alM some brown paper; uben we found all
tbese paria of llie machine llicy were put to-
gether, and then made Ihe apjiearance of a
dark lantern ; there was some Irowo paper laid
near it, which appeared in liaie been larretl ;
fihen this thing was all united we put it upon
the paper that was tarred, and the paper seemed
as if il bad been round this tin ca»e ; il seemed
as if it had Wen thrown over llie bunille, and
by tiribing against ibe mow of hemp, ihe pacts
bad separated ; thai was the idea Ibal I liirroed
of the mailer.

TbeD you cnmraunicated it lo the proper
officer at ihe Dork-yard ?~-\ did.

Were these things fouud la sucb a place,
tliai if a Hre had arisen in consequence of ihem,
the Hemp-bouse and the beiiip in il must pro-
bably have been consuuied ?- -Undoubtedly.

ThatHemp-lmuse, t suppose, from its name,
it Ibe place where the hemp belonging lo Ihe
dock IS kept ?— Ym. Ibe Kroiuiil lltwi utiOD

VOL, XX, ^^.^^„

wliicb Ibis tincaiteHas found was full of hemp,
and this was ibe siiuation uf the machine ; ii
could nut have bfcn thrown in al a vculiire.
The oonstiuclJon thai I put upon it was, Ibit
it must ba(e been thrown over tbe hnndltid of
refused hump, for they were as liii;h at my
head, and therefore it is possible,

■gainst ibc m
teparaled.
Court. Pti

out repealing

s Ihe

, that il

s thio

* from which it rebounded aud

with-

iner, 1 would once for all, >
. to you atler evrry wilness II
you, ihat you are nl Idierly lo
s wtial nueations yon think fil,
IS gone ihtouiih by Iha
own. You know best your own defeuce.

William Ttacit sworn.
Did yuii ever see the prisoner f — I hare.
Where? — Al my master's bousejiut with-
I Westgale, Cai.i«rbury.
Did you make any tin ibing for bim ? — Yes,

I did.

Look
Ihiiieihalyi
machine.

When 1
a month <

thai, t

r that is lUe

», this is Ihe

il you made it for him
X weeks before Cbristmaa.
the first time since that, that any
enquiry was made of you about mnkiug Ibia
canisler ? — On the Monday belbru tasi,

Examined by the Friioncr,

Yoii say you made ihls canisler fur me, a
month or six weeks ngn f — No ; a mouth or aii
weeks before Christmas.

How du you know the caniaterf— 1 know it
by the seam.

1 saw a canister a few days ago with ihs
same -^eam as that; how cun you know one
seam from another.' — Because ihis is so ler^
bad soddered ; I took pariiculnr nolice of it
w ben you came lo me about iL

CiiD you swear to ihe soilderf — Yes.

How ilo you know me ; by my face, or drets,
or voice, or what? — 1 know you are tbe very
man that came to me abuut it. I know you by
your person, by your hair, and by yuut ilolbea
Ibal you have on now.

AVbat particular ^rraenl? — You bad on llie
same coat you bare now.

This coal? (bis great coat.) — No; noi your
great coal, the other, or near upon suuh a co-

WaK il so much as six weeks twrore Christ-
is P-.-That is as nigh aa I can tell.
Was it more or less, do you ihiak? — 1 really

EUiabtlh Borcli sworn.
Have you evrrseen Ihe ptisoner a
befbreP— 1 liSTCi

1331] 17 GEORGE IIL Triai qfJtma Mitt ottn Jtfhn ike Pmnier, [I3S

Wben did you see him P — ^The day before
the yard was on ftre, at my bouie.

Where is your bouse r — At No. 10, Bar-
rack-Btreet| Portsmouth ; he came to me lor a

JodfifiDfi^.

Jiiil he lod^ at your house ? — Oee nifrhf.

What niffht waa that ?— The nigfht before the
fire happened.

Did you obaerve any thing particular relat-
in«>^ to him, or the room he lodg^ed in? — 1 ob-
served a very sulphurous smelJ ou the Friday,
and on the Saturday.

That was when he first came to your house.'
— Yes, uo the moraini^ of the Saturday, my
house was in a very ^reat smell and smoke ; 1
went up stairs and pushed open the door, and
I could not sec my band betbre me, because of
the smoke ; there was a sulphurous smell in
the room and the grate ; I asked bim what he
was about, whether he was going to set my
house on fire ? He asked me what I was afraid
of? 1 said I was ufraid he was ffoing to set
my house on fire, for fire was a thmg I much
dreaded ; he asked me if I had ever suffered by
fire ? I said No, God forbid I ever should, for
fire was very dreadful to me ; I was much
afraid of fire.

Did you obserre what occasioned the smoke
in the room ? — As I was making the bed, 1
turned round arid saw be had been burning
something on the hob by the fire-plfioe.

Did you observe any thing else in tbe
room ? — He had a lighted candle oo Saturday
morning ; he had had a little bit of candle car-
ried up stairs in a candlestick for him, but the
candle that t took from him in the room, was
not the same candle that I carried up stairs for
him, fin* it was about half an eight candle; he
had something in a chair which he was doing
something with, but I could not tell \%hat it
was. I carried the candle down stairs, ond
Went up ajj^aiu immediately, as fast as possible ;
1 opened the window a little before I went
down . wheo \ came up again he had shut it ;
I said I wciuld not have my window shut hy
hini or any other man, that if 1 chose to have
k open it should be opeu.

Did you observe any thing else, at any
other time when you were in the room ?— rOn
the Friday, w hen he came out of the room, I
went uj> ; I saw his bundle ; I went to carry
it to one of the neighbours to wash ; when T
0|)ened it, I saw part of an old shirt, a pair of
leatiier breeches, a top of a tin case ; I viewed
the tin case a quarter of an hour to be sure.

Look at that tin case ? — I viewed it from this
part [pointiui; out a particular part of the ma-
chine] 1 think this is the same canister, it is as
much like it as one thing can possibly be like
another ; 1 really believe it to be the same.

You say you had some dispute with biro
about filling your room with smoke. Did you
tell him he should (jro away from your house T
"^1 ordered him out of my house ; he said it
was hard he could not be permitted to put his
things up ; 1 lold bim uo, he should quit the
room ; he then said that the candle 1 carried

down in tbe candlestick was his, aadtbttbc
wanted it; 1 told bim be mifcht lake it Hk
weal dowa stairs ; tbis was on Satonlay rnsn-
ing between nine and ten, Chen be IcA ny
houne, and he never retnmed sf^in.

Court. Wbatbecama of the bundle?— i. Hi
carried tbe bundle in bis left hanrf, and I «v
him into High-slrtet, for 1 got iaio tbe wA-
die of the road and watched bias; I aciv
saw him afterwards.

Do you know whether tbe canister tru is
the bundle wben be took it P— i cansol sijr; I
saw the camster on Fridaj, I did net ses il as
Saturday.

Jama GaMier^ esq. sworn.

Mr. Gmnbier, I bsTe here the bnodlsttll
has been spoken of by the witness : I isniiii
it from my first derk John JeiEsreys ; it hm
been in my possession ever aim:e ; il is etsdr
in the same state now as when I reeeiftdit; 1
received it on the 2 1st of Febmnry in lbs i
ing, about nine o'clock.

Eiit. BwctlL I believe that to be tbe I
die ; it is tied up in an handkerchief of ibei
pattern.

John Jtjfertyt

Do yen know that bdndle P-^Tbat ii il

handken;hief, I believe ; indeed 1 have nodirii
of it ; cOmmiMsionfr Gnrabicr gave ordim a
the evening of Thursday Aie SOCb of Fefcrw^
for search to be made in North -street and Mi
neiglibearhood, forsueb a bundfe.

Where did yon go to make that search?— I
ordered a junior clerk, and n messenger of ill
stice to make that seareh in Nortb-sirrtt vA
its nei^hboorhood ; they came back in abaolM
hout's time, and told me they bsd searcM
that street except a few hoosn, in oce (^
which particularly the person was not at booe;
1 wei»t next mornin{^, and found this fooBilteH
xMrs. Cole's in Nonh-streel ; 1 delivered h to
Mr. Gambler.

Ann Cole sworn.

Look at the prisoner, do you know biiD ?•«
I do.

When did you see him? — On flie day of ths
ftre.

Where did you see him ? — At my hsme n
North -street, on Portsmouth common.

What was the occasion of bis comiog it
your house ?^To take a lodging ; he itok
one.

Did he leave any thing when he want awty^
— He left a bundle.

Is thai the bundle ?— It U>oks like it.

What became of thai bundle ? — I defivcni
it to Mr. Jeffereysand Mr. Calden.

Had yon kept the bundle from the tine ftt
prisoner lell it with you, till you gave it to rinw
gentlemen ?^-I had.

How long did the ffrisoner slay in ysor
boose f — A quarter of an hour, not moie.

What tinoe of the day was Ibatf— la lb«
forenoon; I can't exactly tell the htor; it mi

ISSS] . fiir wfthtg Fire to Portsmotah Rope-HoMU. A. D. 1777.

[1SS4

betweeo nine and twelve $ he ttaid about a
quarter ef ao hoor, then he went out.

Did he return again ? — No.

Did yeu open that bundle ?— It waa not tied
•lose, and I saw it a little way open.

What did yon see in the bundle? — I saw
•ome books and other things ; f diil not untie
it, 1 delirered it to these gentlemen when they
Mme for it.

Yoa took nothing out, nor put any thing in ?
—No.

PrUoner, My loni, I beg Mrs. Boxell may
■lop.

William Ab^am swornw

What are you ? — A blacksmith.

Where do you live T — At Portsmouth.

Did you erer see the prisouer before P— Yet,
he lodged in the same room with me.

At whose house ? — At Mrs. Bozell's in Bar-
nck-street.

Bad you any particular conversation with
the prisoner ? — At first he asked me whether
there waaiany pressing ; I told him ves, they
preated very hot ; that the constables had press
warrants, to take up all the people that could
act give an account of theaoselves ; says he,
•appose tbejr were to take ujp such a roan as
■le, I can giye4io account or myself, only by
the writings I have in my pocket ; be asked
Bse if i thought if he was to get into the justice's
hands, there was no way of escaping ; I said
No, there were gates and walls all round ; and
if he was not taken in Portsmonth towa, he
would be taken at the bridge ; he said, was
there no way of getting over thooe walls ? I
said No, there is water on the other side ; he
then said again, is there no getting OTer those
waUi f I said No.

EjouBieed by the PraaoMr,

Waa anv other thing said P^ Yes, he said he
fcttew one ''Brooks who was in Newgate ; and
he was certain sure he would be banged.

At what time was tiNitP — 1 cannot justly say.

Where was it said P — At Mrs. Boxeirs.

In what part of the house ? — ^The k>wer
; Mrs. Boiell heard the words as well as

CouhhI jfor the Crtmn, Look at these
hSK^fclea which were in the parcel P— There are
a ffreat many buckles alike, thev are such sort
•f huckles that the prisoner had, they are the
••■le pattern.

John Baldmn sworn.

Prisoiur. I can't embrace you now, Mr.
BaMwioa as 1 did htft Monday aeu'night

Look at tlie prisoner at the bar, when did you
first see him ?— The 7th February.

Where did you then i^ee him P — At sir John
Fielding's ; lord Temple sent his servant to me
on the 6th of February, to iotbrm roe, that 1
•bookl be sent fur by nir John Fielding, in
order to give evidence against a person wtiom
they looked upon to be a painter that had come
from America, my lord knowing that 1 bad
■^"~ in America.

Were you sent for under an iraaginalion that
you mignt know the prisoner at the bar, having
been in America and a painter there ? — Yes, 1
have been in America, at New- York, at Phila-
delphia, and Amboy.

Are you a painter by business P— I am.

Open the recommendation of lord Temple
then you went to sir John Fielding's ? — I did ;
1 was asked whether f knew the prisoner ; I
told sir John that f had never known him to the
best of my memory and remembrance ; nor
never seen him till I saw him in the other room.

The prisoner heard you say that ?— He did )
he made me a bow as he stood at the bar, as
soon as 1 had given my evidence to sir John ;
f saw him aftervjardii in another room.

What passed in that other room P — I went to
sign my name to the deposition 1 had made ;
as I was going away tlie prisoner beckoned to
me with his bead ; I went and sat clown by
biro ; he asked me what part of America 1 had
been in, and who I knew there ; I mentioned
I*bihulelphia ; be asked me if I knew any

Printers* there ; I said I did many ; who did
know there P I mentioned several ; he said I
see that yuu know the place very well ; you
are not like evidences that have been brought
against me; there was one oerson said he
knew me, but I had chaoffeil the colour of
my hair; did they imagine tuat 1 was a came*
leooP there was another person said 1 waa
transported from Gloucester gaol ; but, said he,
you are a gentleman, and I wisii it was in my
power to make yon a satisfaction ; he tohl me
lie would be very glad to see roe at a place
called New Prison ; I said 1 weuhl come there
whenever he pleased, if I could get a<lmitsion ;
he said I don't know what time 1 shall be dis-
charged from here, but if you will come be-
tween three and four, I dare say \oo will see
me ; I went to New Prison about FtHir o'clock,
1 saw the prisoner there, he and f walked to-
gether ; we adjourned te a corner by ourselves
between the two gates; he disclosed a great
deal about America, mentioning gentlemen's
names in America that he knew; and he begged
I would call u|)on him the next day w hen it
suited me ; I went and acquainte<l my lord
Temple of what infonnatioo i had got frona
the prisoiier ; my lord Temple said he thooght
it was very material, and thought it proper that
lord George Germain should be acquainted
with it ; he wrote a line, 1 carried the letter
and was introduced to lord George Germain ;
his lordship said he was of the same oniniou aa
lord Temple ; and that it should be taken care
that I should have admission to see the pri-
soner, in order to bring him to a eonfession if
possible ; I waited upon the prisoner the next
day, and we had discourse again about America
as before ; he found by my di»conrse that 1 was
an American by principle ; he asked me what
countryman 1 was ; I said a Welchman ; he
saiil he thought at first seeing me he saw in my
face that I was a person intereste*! in the cause

* So in ertg. edit. Qu. pamt€n%

d»y to day, tiHtbe 15th f dmMury ; ooUmI dav
liatoklinoalltlieiMrliealftni; beMkadiMifl
knew one Mr. Dmm r I told trim no ; bootid,
not A|r. DoaBo who if employed by the Cob*
great at Paris f

Friatnur. I fomark to the witoeii thai than
k a rigbieooa Jndge, who alao gi?eth righteoaa
jwfginiit ; beware of what yon aay oonoem-
ing that Mr. Deane, peijore nol joarMlf* yon
are in theaigbtof God, and all tbia conpany !§•

BMmin, The nrikoneraaid, what, not ftlaa
DeaneP 1 told bun No; ho MU^he ia a flno
defer fellow, and I boUero Benjamin Franklui
i$ cmptoyed in the aame errand ; bo aaid that
ho had taken anew of moat of the dook-varda
and fortificationa throngbont England, andjpar-
licufatfly the nnmber of gnna that each ahin b
the naVy had, and likewne the gnna in the tbr*.
tificatiena, the weight of their metal, and the
Bomber of men; and ho had been at Fiuiatwo.
or three timea, to inform Mr. Silaa Deano of the
partioukra of what ho Ibnnd in «Mmmlng the
Jiock-yarda.

Frisoner, Consider in the sight of God what
you say ooDcerning Silas Deane.

Cvuiuelfor the Crown. Yon need not be
afraid, Stlas Deane is not here, he will be
hanged in due time.

Prisoner. I hope not, he is a very honeat
man.

Baldwin, He said that Silas Deane was
greatly uleaaed with what be had done ; be ac-
quainted Silas Deane in what manner be was
io set the rope-houses and the shipping on fire
in England ; that Silas Deane was amazed
that he should undertake by himself to execute
a matter of that kind, but he told Silas Deane,
that he woold do more execution than he could
imagine, or any person upon the earth ; that
then Silas Deane asked hiro what money be
wanted to carry his scheme into execution ; he
told him not much ; he expected to be rewarded
according to his merit ; that then Silas Deane
ga?e him bills to the amount of 300/. and letters
to a |B|rreat merchant or a great man in the city
of London. He was lery anxious to know
whether lord Cornwallis had been defeated be-
tween Brunswick and Trenton, in the Jerseys.
He said tliat he knew general Washington
penoually ; ho belief ed that general Washmg-

aW

1SS5] 17 GEORGE m.. tVM^jMMl]»«fiit JdAitOriUMn^, [IS

•f AHMrions I told bus I Bwrriad at Anbay,
that W6 remofod to PbUadalphMi and Ihora
Ijfed, where 1 had a aoa; that that aeo I had
BOW m London.

Qmiuel. Howofar yon seed not maatioB
•f cry particnhu* ; you entered into genemloon-
vanatkm, bemg both of the aame trade and of
the aame ooontvytf

Frimmer» 1 dewe the witneaa will i^eak
atery partionlar, aa 1 am wtefealad in it

Coumel/crtk§0<mn. BoitaobyaUmaaM,
go^mthen. -(^^^^.

BtiUmim. I mentioned tolhtt abovt my lb*
Ally, that I had my aeo arith me new in Lon-
don ; be waa deairpna to aee him; 1 tokl, him
my wife waa fery nuioh indiaooaed, wbieh he
aaid be waaaorry for ; I waiten npon him Aom

ton^ abilitiaa wera |_
Howe, and that gtaainl
waich general How«^
bamaa nim ;• bo .van
findahi wonid canqnar thin
grand eampajgn. waa to -hm
that general' waabiaglaB mIj
eipenanead offienn^ wlHOk hn i
be anpplidi ftom Fknnoe ; nadSilaa
appointed for thnt pnrpona at PMi| Iraq^
than with ammunition nnd mnma ; bat aa In-
cannon balk, baaaMttbny cocM prsBMaami^
lleiency to aerf e all Bnmne, in AanaiMn ata

Elaee new AnnaMlia hi mmFjUmH^ Ihitbi
imaelf had aean ukewian pitcbt tor and tmfi^
tine. Thia waa what paaaad intbe onanstf a
great nnnbar of.fisita. I araited nfarlja
from the rth of Nof . to the t4tb. 1 wmm
missed but one day, and tmn with ton twiwm
moat daya.

JVunnar. fiemeodier that thin
he waa with ose twiee uMpt dmjf9.

BMarim. The priaoiiar naid bm uimi M
Defer, iraro Pyuria, and went to C^nttibaiy}
that be went into n shop nnd ^nhafiir m maahM
tobemade.

Fnmner. At what partieoinr niaoa dM I
call in my way from Caaterhsry P I aanathna
ealled at aome narticniar |daee.

Baldsmi. JEEe aaid bo went into a atManal
ordered a thi machine to be ouide, whin nm
by aome people called a eaninter ; he
maater was a atapid ftUow, nnddfid noti
ataad bb directkma, bnt that the bow aaoL
be mora ingenioua nnd twdnratnmf it» but bi
was obligecrtoatand by the hoy while hanm
making of it to mstmei him, nnld hn gnse bto
aomething to get aome drinh Ibr hm pim;
that then he went into n pnblio-lMHHa nM
the canister under the breast of hie eoat ; tkst
a dragoon saw something under hia ooat, mi
opened bis coat to see what waa under it, mi
said, which of them are you for ? The piiswr
asked, what do you mean f He aaid, wbedicr
you are a barber or a tayknr ? The pnasair
said, that was no business to him, and caOd
him an impudent fellow, and told turn that to
did not mind him, nor none of his BBsatcf^
men ; be said there was another soldier in tto
room, who was a ci? il man, and he drank nith
him ; that he went from thence to Fortsosonlk,
where he took a lodging at one Mra. BoaeU*a

Q. All this is the account that hegaf a jea t

Baldwin, Yes ; in all the €H>nferaations, as
near as I recollect, word for word. He aaid si
Mrs. Boxell's he tried his preparationa, wbicb
were matches that he had made, by dooUinf
a sheet of whitish paper into ten or twdta
folds ; that then the paper wna unfolded, is
order to lie done o? er with a compoaition asadt
of charcoal and gunpowder ; hn aaid, if tto
paper was not doubled before the cumpusilim
was laid on it wouU causa it to emok ; that tto
charcoal must be ground fery fine, npnn a es*
lour- stone, in the aame mnnnnr na paialHi
grind their colours; bnt the gunpnndsr dtf
not require much grindihgi hn ami |

lUpe-Hc

A. D. 1777.

riS38

niigbt be nasbed wilb a knife, io the nme
manner ae painteri mix ▼ermiilioo: bot, be
said, they must be very particular in muuo^
these two bodies together ; that the charcoal is
ground in water, and then mixed to the oon-
■istenoe of new milk, and then with a small
brush the paper must be painteil ofer on both
•ides with this composition ; be said, that he
liad managed the matter so well, that one match
would last 24 hours. He said, be knlged at
Mrs. Bozeli** one night, and that Blrs. Bozell
was a very impudent woman, for she had
opened hisbundle during his absence ; be told
me, that this tin machine was a very curious
construction of his own invention, and that he
bad a wooden box made which had a hole in the
centre, in order to put a candle io, and in that
box was tar, turpentine, and hemp ; that the
tin canister fitted this wooden box so well, that
when the caudle wss pot into it no person could
perceive any light. He said, that on the 6th
of December he went into Portsmouth-yard,
and got into the Hemp- bouse ; that there was a
deal of hemp there, and it was matted so to-
gether that be could hardly get it apart; he
pulled his coat off, and then, after lightening
the hemp, he placed this canister o?er the box,
with a small candle in it ; that he sprinkled
•ome turjientine about the hemp that was round
il ; that he was some time before be found bis
€oat afterwanls, and, when he found it, there
was a deal of hemp sticking about it, which he
endeavoured to take off; that he then went out
of the Hemp-house, and got into the Rope-house,
and in the liupe- house be placed a quart-bottle
of spirits of turpeutine upon its side, stopped
with hemp instead of a cork, and close to the
b'emp he laid a piece of paper, and in this paper
was some dry gunpowder.

Primner, Did J go straight out of the Hemp>
boose into the Rope-house?

Court. You had better wait till he has gone
through his evidence, and then you may ask
what questions you please.

Baldwin* To this gunpowder there was one
of these matches, and over tbe powder be laid
some hemp strewed very light, likewise a quart
of turpentine strewed all ak>ut ; that as soon as
the fire oftbe match touched the powder it should
set it all immediat^y on a blaze. He said, that
br cutting this match which he had made, into
short pieces, it would answer any time that
be plfMised, in order to make his escape ; that
tbe next day, which was the 7th of December,
be went from Mrs. Boxell's, and took two other
bMigings, one was at a public- house, and the
other at a private house on the Common, he
said in the North-street ; that lie took particu-
lar notice before he took these lodgings which
bouses had most wood about them, for he bad
bis combustibles reaily for the purpose of set-
ting bis two hMlgings on fire on the same day
ms he set fire to the Hope- house, in order to
keep the engines from playing uoon the boiki-
ings in the Dock-yard ; he saio, that he told
the wooMUi at the lodging which he took on the
Commooy that ht was going to Petenfiekii

and begged her to take care of his boodle ; be
said, after that he went into the Dock-yard io
order to set fire to both the Hemp- house and
tlie Rope- house ; that be first went into the
Hemp-house, and struck a light, but the
matches which he had were very damp, snd
he could not get the sulphur to take fire ; that
be wasted a whole box full of tinder in order to
light the candle, and even blowed at the tinder
till he had ahnost burnt bis lips ; .that he went
away from the Hemp-house, and pnicured
some better matches ; that then he got iuiu the
Rope-house, and set fire to the match which
led to the powder.

Q. Did he say any thing about buying of the
matches P

Baldwin. Hesaid he had bought an halfpenny
worth of matches the day before of a womau.
—My lord, there is one matter I forgot : he
said, the day that he put his preparations into
the Hemp- house and Rope- house, he was so
long in the Hemp- bouse that he was locked
into tbe Rope- bouse; that when he came to
the door which he went in at, he could not get
out ; be said there were several doors belangmg
to this buihiing, that he tried many of them,
and went the whole length of the building,
which was upwards of three hundretl and sixty
yards. He then went up stairs, pulled off his
shoes, and went the whole leogtb there, and
could find no possible means to get out, upon
which be returned, and got to the same door
that be came in at ; there he heard some per-
son's voice, upon which be knocked at the door,
and said, holloa ! They asked, who was there,
and what business he had there ? He said, it
was curiosity that had led him there, that bo
did not imagine they had locked up the bouse so
soon ; he said, the person tokl him to go strait
forwards, and turn to such a door, and ho
would be able to get out, which he did ; ho
said, when he came out be was very vexed with
himself that he could not set the if emp- bouse
on fire, and was also vexed because he coukl
not go to his lodging at Portsmouth Common,
where he had left a parcel, which parcel con-
tained, among other things, a pistol, Ovid's
Metamorphoses, the Arts and Ddugersof War,
or somethiug of that sort, and a Justin ; but
what vexed him most was a passport that he
had left which was signed by the French king,
and in that passport was his real name, but it
was in French, and he did not imagine that tbe
people at the lodgings could read or understand
It, but, he said, he was greatly amazed that
they bad not found the bundle; he ssid, he
imagined they intendefl to make a pro|)erty of
him, or otherwise he thought it would be best
to take no notice of it, but let it lie ; tiXtr
setting fire to the Rope- house he made the
best of his way towards London ; he said, that
he was so sorry that he could not get the
matches to light in the Hemp- house, that he
had a good mind to go and shoot at the windows
of the woman's liouse where he had bought
them ; he said, that he had burnt tbe bilk and
the letter which be had from Silas Deaue, on

1339] 17 GEORGE III. Trialof JtimesHiU alias John ihePiKhier, [IStf

mccount of the bebtTiour of Mrs. Dozell, and to
prefeot any suspicion of the i^entlemeo that
they irere for ; he said, that soon after he left
the Dock-yard he juokped into a cart and he^-
ge<l of the woman to drive quick : that he rode
lu this cart two inilea, and then ga^e the woman
six- pence tor driviugf quick, for he bad near
four miles to go before be passed the sentries ;
that a few minutes after be bad passed the
■entries be looked back, and saw the flames $
lie said the very element seemed to be in a
blaze ; that be walkeil all nii^bt on bis way for
Loudon ; that upon ibe road between the last
sentry and Kiiignlon two dogs barked at him
very much ; be said, be shot at them, and be-
lieved be eitber killed or wounded one ; that he
arrived at Kingston the next morning, which
was Suuday, between ten and eleven o'clock ;
tbat be staid there till pretty near dusk, and
then came in tbe stage to London, and waited
upon tbiti great man in the -city of Lomlon ;
be sai<l, he told tbe gentleman tbat he had
had letters and bills about him that he b.id re-
ceived from Silas Deane at Paris, which be was
obliged to burn ; that tbe gentleman seemeil to
be very liby of him, and told him, he bad re-
ceived no account from Pari«; be said, be tohl
the gentleman be might think what he pleaseil,
bat be was an enemy to Great Britain, and a
firiend to America ; and that be ha<l set lire to
the Ru|)e-bouse at Portsmouth, wiiicb he
would see in tbe papers of Monday ; be said
tbe gentleman ordered him to a certain coffee-
bouse.

Court. I suppose, by your repeating tbe
word gentleman so often, be did not mention
bis name?

Baldvin, No, 1 could not get bki name from
bim ; 1 wish I bad. He aaid the gentleman
waitetl upon him at the coflTee-bouse, where they
had some little discourse, but the gentleman
seemed stiil to be shy of bim ; he said, there
was another gentleman in tbe coffee house,
who took very particular notice of him, which
be observed, and therefore did not chuse to stop
long ; be said, he was so angry that this gen-
tleman would not believe bis word, that he
took his leave of bim, and went directly to
Hamiuersuiith ; tbat when he got to Hammer-
smith he wrote a letter to this gentleman, and
told bim, he was very sorry that he would not
believe what he had told him, but he was saiis-
fiei\ he would receive letters in a few da^'s ;
that be was going lo Jiristol, where he should
bear of more of liis bundy works. He said, in
his way from thence to Bristol he called at Ox-
ford.

Court, He is going now in speak about
Bristol ; if you donH watch him very atten-
tively ii is uaiural he should fall into an ac-
count of Bristol, which we have nothing to do
with.

Counsel for the Crown. We are not exa-
miuiug alMMit Bristol with a view to impute to
him the setting Bristol on fire, but to shew he
was actuated by the same motives towards this
oountry, with regard to America, which ope-

rated at Portsmouth, which will be materid,
aa it will eonflrai the deaign b« had in kii
miBd. We shall profe bis grinding charcNl
upon a painter's stone there, umI eihercircaa-
stances.

Court, Any conversation that he rdaUf i
tbe prisoner's, of whM happened at Bristol tbn
will confirm this evidence here, is material.

Baldwin. He said bis next scheme was It
set a building at Woolwich on fire ; he mhI be
arrived at Bristol a tew days belbre Cbristnai;
that be got leave from a painter to (riod sone
charcoal ufHin his eoluur-stooe.

Q. Did he mention to you bis reasses ftr
going to Bristol ? I don't mean of what he ii*
tended to do there ; but whether he mcatiosrf
any reason why in particular he should go It
Bristol, any more than to Worcester, sr nj
other place?

Baldwin, He said that he heard there wnv
three or tour shi|)s that were there : that osear
two of them were mounted %viih twelve or-
riage guns and eii>bt swivels, and that tbfj
were troing to tbe West-Indies, and be waolBl
to see these vessels.

Court, All these questions Riust ncemarBj
tend to the fire at Bribttd.

Baldwin. He said, a painter gave bin libcilf
to grind ibii charcoal.

Court, When wsstliis? before the fire il
Portsmouth, or after it f

Baldwin, After the fire at Fortsiiioulb.

Counsel for the Crowm, We shall call tkd
witness to confirm and prove many of tbcK
thintrs afWr the fire ; tbat he called opou tbi
man to grind charcoal. Now 1 shall eall tint
man to prove that the prisoner di<l grind cbir-
coal at tbat house. I do not mean for the pre-
paration for this particular fire, hut onlj ai i
circumstance confirmatory that he did bolil ike
conversation that the witness relates, and M
make such preparations.

Court, As far as tbat goes I see no oljectioi
to tliat.

Counsel/or the Crown. Let it be suppowJ
tbat the charcoal was tor an innocent puri^fe;
but it is a fact that tbe witness w ill prove cjfl-
flrmatory of bis having said that be did socb i
thing.

Baldwin. He said be ground it u|ion a t*^
lour-sttme belonging to a painter at Bristol, thii
he was above txvo hours grinding it, auJibc
painter took particular notice ciftbai.

Q, He told }OU he went to Bristol T— He AA
tell me he went to Bristol ; be said be kKiktil
u|ion that to he one of the greatest cirront*
stances against him, the man seeing liiui m^ke
this preparation, grindin;;: this charcoal.

You gave an account of this matter, aiiit m
consequence of that enquiries were made odht
several people i* — I suppose so.

When did you give an acc4»unt of this corvcn
satioii ? — Day after day to my loni Temr'^
and from thence to my iiird Ci«rorge<aemi«»;
it was on the 15th of February that the psrti-
culars came out. 1 was from the 7rb t<i tbe
ISth before I could get out any particulars. I

1511] jyr teUmg Pire to PoWmhwiA Rtpt'Houuu A. D. 1777.

[1343.

eoAmsBicated to aeeoaiit of (lie ptrticulirt day
^jr day.

Prit^ner. I sliMild wisli tobcartbetfidciice
read over.

Mr. Btunm Hoih^m. I oertwnly will rttd it
•v«r to yon, if you deolro it*

Primnet. I wish it to be read, io order to re-
fresh niy memory.

Mr. Baron Hoiham, If yoa want to ask any
^oentioD, you will stop me at the place where
yoo wish to interpose yoor qocsiioB.

Mr. Baron Ilotnam then read over his notes

5 which were exceeding^ accurate) of the e?i*
lence which Baldwin Md gifen. His lordship
eoocKided thus. * I have taken the efidetice

* as faithfully and as elaetly ai I oonid ; If

* there is any difference, I shall be oblifed to

* any gentleman in court who will he pleased to

* set me right'

Pruoner. It is exceeding well taken down,
ny lord. Now is it proper, in the sight of
God and in the sight of man, that a man, con-
trary to the laws of God and mati, shoald come
with deceit in his heart as an emissary from
other peeple to iosinoate to me, Of any person
what they can in that deceitful manner T If
they are deceitful enough to deceife one in
such a distressful situation, Ibey must certainly
hare deceit enough in their heart to speak liei
of them.

Court, That is matter of obserratkm, which
will come in with propriety in the course of
your defence ; it is better for yuu to apply
yourself now to asking any qnestions that you
may think proper.

Fritoner, I would rather ask hrn seme
ifuestions afler all the witnesses are examined.

Counsel/or the Crown. Well, he shall stay
io court.

Edward Evam sworn.

Were you at Canterbury at anv time? — Yes,
firnm the month of October till the hitter end of
February.

Did ^00 ever see the prisoner at Canterbury f
«-1 thtiik 1 hare : the man it altered a ffrcat
deal since I saw him, but, to the hMt of my
jodgment, he is the man, that wts either the
latter end of October or the beginning of No-
fember,^ in November to the best of my koow*
ledge, we had some words.

Did you see any thing about him?— Ny
comrade was present ; he said he saw some-
thing under his coat.

How was he dressed ?— Io a brown dbffil
•ortoot coat, rather shabby.

Did you observe what wtt 'inside tbn Mur«
toot f — I did not

Jama Wilton sworn.

Do Tou remember seeing the prisoner tt
Canterbury ?— 1 really think be is the |iersoo t
bat 1 bad never seen him before oor tinet be
had a dispote with my comnde Ef tat. To the
best of my opinion be wss drestid osotb tt ht

f. Bo ifl oHg*

is now ; I observed something bright under his
coat that glistened like tin.

Did yon tea much of it ?— I did not make
mnch observation upon it.

Was there any quarrel or words betweeo
cither of yon ?— There had been a fighting or
a scuffle between him and my comrade.

Pritenet. (Ih the Counted.) Sir, I have ont
thing to remark ; are you hit majesty's ooun«
self

Caunui. I am. What then ?

Prittmor. I only wanted to know if vou were
his Britannic majeitty 's counsel, atd if you had
done with the examinatk>n;

John FftiAer sworn.

WKers do yon live? — ^At Mr. Ltwrenct
Tuck's at Canterbury.

Do you know the prisoner ?— 1 think f have
seen him before.

When ?-— About six or seven weeks, I believe
before Cliristmts.

Where dhl yCn see him then?-*At my mat-
ter's shop ; he came and ordered two tin canis-
ters of me. My inaster is a tin-man.

Whtt were hrs directions ?— To maketwn
canisters of a long square. 1 hare got one
here. [Prodaciog it.]

Was that canister iuade by the pritoner't
directions ?— Yes.

How came he not to take It away?— I can-
not tell ; there were two of them left in m^
hinds.

Did he call afterwards for them f— He call-
ed once and they were not completed, after
that he called no more. [The machine or
canister was exactly upon the same constrnc*
tion with that found in the Hemp-house.]

William Baldy sworn.

Ijook at the prisoner. Did yon ever see that
man in the Dock-vard at Porlmoutli f— I have.

In what part ol^it ?— I saw him about a hun-
dred yards from the east end of the Rope-
house upon the lower floor where the cordagt
is made.

Upon what day did you see him there?-- «Oo
Saturday the 7th of December, which wao tbt
day of the Are.

At what time of the day did you tee him P—
Between 11 and 19, it might be nearer 19 than
1 1 ; I saw him come down on the south side of
the bouse, and cross from that to the north sidn
towards where I was sitting by myself.

Did he speak to you f — Yes, he picked up a
sOMtll smooth stone which he held up in bit
flngtr in this manner, [describing It.] Pray,
Hir, says he. Do you make use or this io mat>
iug cables ? The oddnttt of the question mtda
me look folly tt him : 1 thoi^ht he appeared
ftry ignorant. 1 said, we do not make use of
tbit ; tbit it, 1 tnpptwe, t ttone that it coma
out of tbt oUy tbtt thott btrrels trt IIIM
with ; tbert were Ibeo about threetoort and ten
borreltorclty tbtM; bttttid ftrttrtljr mi-
nottt, tod tbfo bt Itft me.

Whcii M yM ttt Mn i|iin f^^fo tiMl

iM3]

17 GEORGE III. Trial ofJametHiUaliu John the PahUer, [IW

it miyhl b« k qnarlei of t

Wbcre did you ttt hina then?— -I wn
the Kcood lime at llie eul end of tbe
fliior; he b*d been u^ •tiirs, I «aw him come
dowu ; there nas one Williani Wtstgo
compaoy wiili me ; tbc priMoer addrened
bim wiih liQw do ynu do, bow do yuu do "*
holdini; out liio baoiii to him ; Ibey fell into
CoDiiTMliuDi'wbicli 1 ihooght wu ■ malter
thai ilid nnt concern me ; aiiiiiiaBing [fy bis ad-
dreaniog him in thai roaooer that tbey knew
each utber, I went off.

Are you ur are you not certain (bat he ic the
man wbiitn yuu paw in the Rope-botue, the
duy of the lire f — I am ceHaiu.

Court. What i« ;our bunntM in Ibe Dock-
yard?

Baldy. 1 am a rope-maker.

William Weilon awom.

IjDiib at the pritoner. Hare you ever
Ibat mac before ?—Tu the beat of mj kuow-
ledge I bate.

Where? — la the Rupe-faoaae the day thai
the lire wdi ; that ii Ihe man that I aaw there,
to (he heal of toy kaowle<l|;e.

You hml some conreraatioD, 1 belicTe, with
him ?— Very litlle.

Had vou s(^n him there before, or did you
kaow bim before P — 1 saw bim walking Ihere,
aboiil srven weeks before the lire ; he aaid he
had been ruiind the Dock then, and that be bad
never been iu the Dock in hit life before.

Did you Bee what part of the bouae he <
from, on the 7ib of December ? — I cannot lay
Idid.

Did you aee him come down alaira f — No.

Whal IB your employmeni io ihcyardP'—l
am a sbipwrtgbl'a apjireDtice.

Edttard Carey stforo.

Were you ai I'orismanib at the time of the

u there the day before IheRref — I

fire?- 1 «
Wir

Do yoL
■hut

I the VI

whether any neraon

— Ye*, ihe nifjhl before

IS shut up in tiie Rope-

the 6i

Did ynu mc bim T — No ; 1 heard a mnn
raakinic a ritiulilin^ bmsk at the door ; I weut
Up In ibe diMir,Biid asked him what he iranteil;
he said, he was lockeit in and could not ^ out,
and be should be i;lad if we cnuld let htm out ;
I told hiiu we coiilil not let him out, he must
abide there all uit>:1il ; we left him in the bouae.

Prisoner. IV as it llie night of, or the night
beliire the lire ?

Carey. The nisilit before the fire.

Ann Hopkint sworn.
Lonk at the man behind you (the prisoner)

•lid

n bt-ll.n

U hen ? — I saw hmi last Salurduy.
When did you first Bee liiui ? — The day that
the Duck was oo fire.
Ai what lime f— At four o'clock, or b>ir

after, I cannot be exact ai to the tiaoe, 1 U
been at the market} 1 was conuDg homeiaB
liltlecart; between the Flyiug Bull aadC»
ahaai, he atopped my carl.

Did be orertakBormeetyoar — IcannMId,
it waa a cloac lilted cart, 1 did pot ate biia fl
he caa>e chiae to me i he atopped my cait, Md
asked mo how far 1 was ^in|;7 1 laid h«a
little way ; be aaid he would give ma laj
thiog 10 sire him a lift, for he wagfoiiit*
PelerafietdaDd abouUhe Ikenighied ; he jaiifrf
up ioto the can, aod aaid. Do, aw'am, JriwM
faat aa you can ; a* 1 waa sr(*ii>S "''■ "^ ^
aham, 1 called at a abop.

Wai be, or oot, healed irhm Iw came up h

Ku?— Bewaa very much outof breath, irba
came up to iii« ; I called «t a abop ai Ct>
aham tn tiny a pair of pattena ; whea I ni
tatiing out the money to pay the womaa, ika
priioner took aii-peoce otit of his pocketifll
gave her, aod I gave her naoiber.

W,by did be do that* — It wu le ait
baate ; 1 lold liim before I called, that 1 aiM
atop at a shop ; he deaired me not U «f
there; then, be aaid, you won't wait Ion? ; td,
he vaid, he wonkl gifc any thing for a reiantJ
chaise, liir he rautl get lo Peteratield (hal liftl
if be was alive ; 1 drove on lilt I came in rifbl
of my own houae, I itopped to let my boMt
drink, and he jumped out of the cart and na
away aa fait aa he could.

Had Ihe fire burat out at the time he Idtik
cart r— No.

How aoon waa it afterwards ? — I cannoip^
tendtoaay; beran the maiDljundanrsa^Hl
1 MW no more of him,

Eiiiaitth GenUll awom.

at Portsnoodi

n yestenlii,

Where do you L»e? — I live a
Common.

LiODk St Ihe prisoner, you saw lil
Ibeliere?— i did.

When was the first time that you saw hiaV
The day before the fire at the 'itnpe-huuM ; I
saw him at my own house iu H avail l-sim'.
Portimnuih-common ; became to my lioitf.
andsaked tiir ahalf-peauy wonhol niu'icheiil
look down two bundles and put them uponllx
coupler ; be aslced me if they would lake i"
quick ; and he degired me to chaoKC one ifiht
buncbcB, which 1 did ; he pullt^ KUirn: til'^
out of his pockel, aod e^ve me a halljienny.

Are you aure (bat ihe priiiDner is Ihe liM
person? — I sm-

Friiuaer. How can you be «o ceruin fn""

Email a time as you have now taken lo ii"^

roe i bow slnuld you knuw my phvtii^-
DO my ?

Omtcll [looks at him again] 1 am tantt
I the man.

John lllenden awom.

Did you ever see the prisooer at Cantv-
" -As far as there is human poasibiliij "

What 1
cary ; 1 1

I, 1 hare aeen him tbere,
e you?-— A auigeon uil apotlX'
11 utdy an nupruitiR.

13A9} f^ MMag Fife to Potimouih Rope-Hause. JL D. 1777.

Od what busioess or occaiion did jou lee T^amtu Mason swoni.

bim there ?-— Upon bis oomiDg to bpy two
•aocef of sLfirits of torpentine, and a qaaiter
of a poimd oTsalt-petre, what we call nitre.

About what time was that ? — As fur as I can
reooUeck, it was either three or foar daji be-
Ibre or after the sotb of November.

Mary Bishop sworn.

Did yon ever see the prisoner before ?— Yea*

Where?— At my house in Canterbury.

l>o you recollect at what time you saw him
Hiere P-— It was beiween MicbaelnuM and
Christmas ; but I cannot recollect the particu-
lar time.

Had he any conversation with you when he
was at your house at Canterbury ?»< He told
flue he had been interrupted by a dragoon at the
ii^hite-borse ; he told me he came from Ame-
rica on accouut of the disturbances.

Do you recollect whether he applied to you
^ direct him. where he might get any thing
made?- --He asked me afterwards where he
■ugbt get a wouden thing made ?

prisoner. Is that a proper question to put ?

Countel, If 1 was to put an improper ques-
tion the judfife would stop me.

Court. No improper question will be put ;
and y oo ought to see by this time that the can-
dour of the counsel for the crown will prevent
thero putting an improper question.

Did you see any thing that was made for
liifls ?— I saw a wooden thing which the ap-
prentice of Mr. Overshaw, to whom I directed
■ABB, brought into my bouse for him ; the pri-
soner pul it under his coat, wishing not to have
it seen.

- Did you see that wooden thing ^- 1 saw the
vrong end of it ; the sha[>e of it was a long
•quare.

Was it at all like this ? [shewing the witness
ibe wooden part of the machine found in the
Hemp- house.] — Yes.

What is become of the apprentice who made
amd brought this machine ?— He is since dead.

Yon say it was like this wooden machine ?
—As nigh as I can guess it was like this ; it
was of the same shape.

Court. How long was it after he asked you
where he could get such a thing made, that
jrou saw it brought to him by the apprentice ?
'— il. Some time in the aAernoon, 1 thmk, of
Ibe same day.

John Dalby sworn.

1 believe you apprehended the prisoner ?— I
did.

What did you find upon him when you ap-
'prebended him?— I found upon him a Bath
metal seal ; a pair of steel buttons ; a snuff-
box with tinder: a small powder-born with
gun|)Owder ; a large nail piercer; a striking
tinder-box primed ; a screw barrel pocket pistol
.loaded with shot ; two bundles of matches dipt
ID brimsttne; a phial bottle half full with spi-
'j;its o' turpt-ntin^i and n-nnall pair pf fqisaiurf.

VOL. XX;

[1340

Wlijere do you live ? — In the parish of St.
Philip and Jacob in the county of Gloucester^
pear to Bristol.

Look ^t the prisoner, did you ever see him
before? — He was in my house the roorroi^
aA.er Christmas-day.

What business had he there ?— He came to
my house about eleven o*clock ; he asked me
to let him grind a lump of charcoal upon my
colour-stone.

What business are you? — I am a tyler and
plaisterer, and a house painter ; I told him yet
sure, and welcome ; I shewed him my colour^
stone.

What did the prisoner tell you he was ?-^I
talked with him a good while afWt^ards;
when I was in my room, I saw him pull out a
hanger from under his coat when he began
grinding, and lay it down, and luy his great-
coat upon it ; 1 said, why you are one of the
press-ganjjp ? No, Sir, said be, 1 be not.

What did he tell you ?— -I asked him when
he was sitting in my house, what lie did think
of the American affairs; he said he wished
that affair had never happened ; that he had
lost a plantation there, and he hoped when that
affair was over he should have it returned to
him.

Priumer, Is it proper that this man's evi-
dence should be invalidated or not, from bis
own downright contradictions?

Court. I did not observe any contradiction ;
the witness does not seem to be very quick of
apprehension, and did not immettiately under-
stand the question put to liini ; it is nothing
but relating a discourse which does not appear
to be material.

Counsel for the Crown to James Gamhier^
esq. Have you. Sir, translated the pas8{iort ?

Mr. Gambier. This is the translatiun as well
as I understand the English of it.

Prisoner. I object to the pasuport being read.

Coiirt. State your objection.

Prisoner. That they who shall be called to
witness for or against me, may not hear the
contents of it.

Counsel for the Crown, We shall call no
more witnesses.

The translation of the Passport was read as

follows :

Exhibited at the }
Office of Marine V
at Calais. >

By the Kino.

To all governors and our lieutenant generals
of our provinces and arofiie», giivi>rnnrs
particular, and commanders of our towuM,
places, and troops ; and to a!l other our
officers iusticiary, and subjects to iihom
it shall belong, — Health.

We will aqd command you very expressly to
Ifltt pass safely and freelv, Mr. James Aclzen«

J^oing to England ; without giving him or suf-
ering him to bare any hindrance ; but on tha
4R

1817] 17 OBpBOB lit*

CMtrn7» efeiy aid and MiiiteMe tluit be tl^
irwitorlHiireoeeMloifftr. Tbkfraeot
Mfttoberafidfcrgpe Bflotb odIt. fcr Mn
MHT Dletmre^GivcB at FontMiMeu tiw IS

Lom.

r

hb yuuuiiiiw*

af Nbr cnlMHf 1770*

B J ttw king,

C^mkIM the Cratm. Nowitwillbe mato-
lU for ilie offiocr to till your. knMiip what
thoac hooki irr

Ojfker. The booka ar« Ofid*a Bfetao^iiw
yhoaat, a Traatiaa of iJm Anas aad Eogiafla af
W^, of Fire Worka, te. and the otW is the
History of Jostin.

Omntd fir tke Crmm. My kml, this b all
esf evidcoccw

Couri. Pnmmtft tbe efidsneea^piiisl yoo is
IMW closed; this is therefore the time for yoa
le nafce your defaioe.

Pbisqner*s Dbpbncb.

I oDdsrstand, my lord, that that French peas-
fort was not found out till a few days ago, and
irinQS my first apprehension, a great prt of the
Idngdom haa hsen aoogbt, and persons bate
%eeB brought from many dilferent plaoea to give
•ridenee who 1 waa, or what I am. or ao fiur as
they koew about me, and every particohHr
•thmg that has been witnessed rcspMting the
late ihre in the Dock-yard, from these evi«
donees given, and the eommnoieatlen of them
l# all the people in the kingdom, by newa-
papers, and other ways. I think It is possible,
end may have been possibkf Ibr Mr. Bahlwin,
er for any other person that is any way at
all Intelligible, to bring every evidenee against'
AM that that person has done, by the aaid
knowledge from poUic papers and conversa-
tion ; nevertheless, whether it is a false accu-
aatioo, that is upon me, or whether it is a be-
traying of trust, through the treachery of
the heart, God Altnigbtv, the great judge of
all, bnly knows ; if it is the former, 1 pray God
Jklmigbty may forgive him ! if it is the latter,
J pray the same ! but in that case I should like
to know, whether it is proper, that a person pos-
eessed of such a disposition as that, should
oome from emissaries unknown to me, and do
all that lies in him to insinuate any thing put of
me, unknown to me, and daily to come and go,
and give information to the said lord George
Germain ? I should hke that your lordship
would take it into your consideration, as in the
eight of God, whether such a persod has a
right in the sight of God, and according to
the laws of man, and of this kingdom, to give
evidence against a man, that his evidence
ought to be regarded ? He that may have been
able to betray me, and speak things in the
dark of me ; he is able also, I think, to give
the lie to any man, through motives of gain,
er any other motives whatsoever ; ;^our lord-
' ehip can consider that in your own mind, much
better than I can apeak it, as I am not endowed
with oratory.

' ' Cserl, Do yea ceit your defeace on that

■ •

JViisner* Wilb f^ipeet la aaf aft« iA;
aamaa tbeloiay^baealS agaiaal M.^tti$i
aay pesitive liMt caa fc' aawwi MSBat mkl

eet|rt will praeeed aooarmmif tlft WKm^mM
tba eonntry. I have om^ tfiaa- maaalaaf |
IweoM pola fcw y astimw la Ibia bhb^»
flaUwui. ' ■«.....

JUhi BaUsia enaaiMf bgr «M TiPfM^

1 tbmk yea gav i es irfeaca , that 1 1
aaldto yea, tbateo FiMay tlia
last, 1 weat into the He«p>h ■■aspaawagwi
bis Brttaaaie maleoly'a yar^ la BM^Sbf

— idy.

Aad that T weat bilbera with aaaaaid»
tibbia, aad NgbteA enaa haaial^Yeii h
order to aet ire to the ooaabiMlihHa.

Do yoa apeak of IMitiaff • flaMe, er faglf
the tlnag Ngbler r--Sro« aaid it mi wSSi
that It waa to make it lia lifhc

It is aot my bariaeas. to iaay coiaf la te
terbnry,oreeaiHait; dawonaay, thUlflii
1 went to Caalmbury aad had. tha iia Biiipi
madeP—- Yea. ■ •»

Yoa alee aay, that I oaid, thallMathha

pamportP— Yea}

Frimiur, There am
aay, that I was at

sutoraavea,

•Christmaa, aaetber, bafeta or
November; oftbe other thraa^taFaspsritrfk
aaaooner: respecting the Freaeh peaspsdid
haa heea foand at Fsdaaaoatb, it aeeam Is at
inconsistent how it osn be nay paaapert, asid
the same time, 1 to be at Gaoterbary,sriiy
where in England at the time mentioned $ da
date of the pamport ia the 13th of Nsvsihf;
if 1 can brin^ these two artidee to bstff t
seems very unintelligible to me, for it iassMCib
that I said, that is my paasport, and agaia kii
sworn, that I was in England at that tinw; thi
is equal to the good gentlenaui, that aaid I hd
power to alter the colour of my own hair; if
there is any thing brought againat ase tkd ii
positive, 1 am ready with the mateat plmaiy
by the help of Almighty Gtod, to receive di
punishment of the laws of the coontry, be elK
It will : there are other thinga anrprim 9$
more than that : 1 have nothing oaore ts aj»
my lord.

Counsel for the Ctimnu We have daae fid
our evidence. •

Court. Will you call any witnesses ?

Prisoner, For what end ? till eomcdnag it
proved positive against me, I intend no defalk
10 the world. 1 am r
cording to justice.

ready to live er die•^

Mr. Baron Hotham. Gentlenseaaftbe J«}»
The prisoner at the bar etanda hsdietsd Awai-
ting on fire, and proeuriag to be est sa fi^
the Rope-hoHie ui thi'D<*k*yaid U Mt

1349] far netting Fire to Poritmouih Rope-Houie. A. D. 1777.

■loath; and before I lum up the eridence to
yoa, I will make one general observation ; that
though it is impossible for any laof^uage toag-
grtLWBte this offence, yet it is not for you now
to feel the magnitude of that crime ; you are
to divest yourselves intirely of all the horrible
ooDsequences of the perpetration of it, and ap-
ply your consciences to this single fact ; Is this
pnsoner guilty or innocent of this offence ?
VFhat the censequences of it are, or might ha?e
been, I wish you not to think of; because it is
M human nature to feel prejudices, that one
wishes at such a moment as this, juries should
forget. 1 am sure, therefore, you will now
think of nothing but the plain simple fact it-
•elf ; and whether it is, or is not, supported by
the evidence you have heard.

Gentlemen, the first witness is James Russell,
who says he is clerk to the clerk of the Rope-
yard, and that upon Saturday the 7th of De-
cember last, at half-past four o'clock, he first
perceived the fire by which the Rope-house
was consumed. There were hemp-toppings in
the middle loA, and cordage on the ground
floor: and that was the usual repository for
both ; much of it, he says, was burnt.— This
witness was called to prove the fact of the fire
itself; which, though too notorious to doubt
•boot, was necessary to be proved in evidence.
He says, on the 15th of January he found a
tin case in the Hemp-house, on the ground
floor ; and upon its lieing produced, he says,
it appears to be the same — he has no doubt
ot all about it. He told you that there was
a box in it, but at the time it was found,
tbere were besides, matches, tar, and oil, in
die wooden box ; but the tin box and the
wooden box were then separate. He says,
be found also a bottle, which had had spirits
of turpentine in it ; he found all these things
io the Hemp -heuse, just by the box : its situa-
tion was in the center of a mow of hemp;
and it had the appearance of concealment,
though, he says, a person by going up to the
upper end of it, if ne had bad a suspicion or
apprehension of it, might possibly have disco-
rered that such a thing was there. He aays,
there was a great deal of loose hemp near it,
and there was some dunnage, which I under-
stand to be cuttings, or refuse of hemp, which
leemed to lie under the box and the canister.
There was also some brown paper lying near
it, and from the appearance it bad, it seemed to
him to have been all thrown in together over
the bundle of hemp upon the mow ; and by
falling against the mow, they had separated.
tiowy geutlemen, it is material for you to under-
stand, that all these several things were found
io this place, because in the course of the evi-
dence you will find, most, if not all of them,
particularly accounted for ; — he says, that
tbere was hemp in the place ; that both it aod
the Hemp house must have been consumed if
the fire had happened, for you will recollect,
though fire was attempted to be set, as well to
the Hemp- bouse as the Rope-house, the pro-
ridence of God did interpofe, and pre? jBOt thitt
^ialdugeffe^

[IS50

William Tench, the next witneM, says, tha^
he saw the prisoner at his master's house just
without West Gate in Canterbury ; and he
thinks it was about a month or six weeks before
Christmas.— The observation which the pri-
soner has made in his defence is very true ;
namely, that all the witnesses from Canterbury

S've rather a different account about the lime ;
ey are none of them very particularly pre-
cise ; they all speak rather at large about it.
But it does not seem to me to weaken that evi-
dence, because five or six different people do
not all concur in their recollection of the very
day when the person was at Canterbury ; and
when they speak cautiously, it is not to be
wondered at, that they differ a little, a few days
or a week in their account This witness says,
that it was a month or six weeks before Christ-
mas, and that he himself made the tin machine
for the prisoner ; the first time he was applied
to upon this business was on the Monday be-
fore last, and that was particularly asked hiroy
in order I suppose to show you a material cir-
cumstance, that this was after the prisoner hatl
confessed the whole himself to Baldwin. But
when I use the word * confession,' it is proper
now at the outset to make one general observa-
tion to ytu upon the evidence of Baldwin. I
do not look upon this as being strictly a confes-
sion of the prisoner : but it was evidence which
the man himself chose to disclose to Baldwin
without any solicitation whatsoever, and without
any promise or engagement of secrecy. It
seems to have come from the prisoner himself
spontaneously ; and as far as we have the evi-
dence before us, Baldwin does not seem, io any
of these conversations, to have sought a disco-
very from the prisoner ; but it has all come
from the prisoner, and not from Baldwin, and
therefore what the pnsoner has said in his de-
fence by way of objecting to Baldwin's evi-
dence, does net, in my apprehension, weigh
much in the consideration of this question.

Tench then proceeds to say, upon being
cross- examinefl by the prisoner himself, that he
knows the canister very particularly by the
seam in it, and that he knows the seam by its
being very bad solder ; that he took particular
notice of the badness of the solder when the
prisoner came, and that he can swear to that
solder any where : that he knows the prisoner
by his person, he thinks also by his hair, but
he is positif e that he had the same sort of coat
on as he has now. — He says he does not pre-
tend to recollect the particular day that he
made the canister.

Elizalietli Boxell says, that she saw the pri-
soner the day before the Rope-houNc was on
fire at her own house, in Biirrack-street, Ports-
mouth : that he took a lodging of her, and
lodged there one night, which was the uight
lietore the fire. And, gentlemen, her evidence,
aliittracted from bringing it home to the pri-
soner that he was at Portsmouth at the very
time, is extremely material, if yon give h^
credit ; inasmuch as she speaks to narticular
work vid operatfonf I upon which m found

J

1351] 17 GEOKGE III. THat qf James IliUdlias John the Painter, [138!

him einployeil; for, she says that thut very
Ili^ilt, when he was at her huose, she observed
a vcrv iii^ly sniphurous smell in his room ;
and she smrit it agruin on the Saturday rooro-
in^; : bhe was so uneasy at it, that she went up
BtairH, she pushed open the door, and found the
ronin full ot' smoke; she asked him, with fp'eat
anxiety, what he was about ? She saw that he
had been burning^ something; by the side of the
liro, and on the iiearth itself: she said she took
a candle fmrn him, but observed it was not the
same candle she had carried up. She says,
he was doin^ something* too on the chair. She
then went down stairs, but returned again im-
mediately ; and, in that interval, she havinnf
opened the window, and he having shut it, she
told him he should not shut the window, and
insisted upon its beingf kept open. — I say, gfen-
tiemen, this is material ; because as this" case is
to depend entirely upon a chain of circum-
stances, you must lay all of them attentively
together, and circumstances may form such a
body of evidence, as shall be abundantly stronger
than where two or three witnesses swear to a
positive fact. If you should think this case
stands upon such circnmstances, you will draw
your ouu conclusion : if you think the circum-
stances are not strong enougrh to brinor the
cliar^re home to the prisoner, you will then
discharge your consciences by saying so :
but upon every little circumstance you must
hang. This, therefore, i^ material to recollect.
The prisoner is empli»yed visibly in some pre-
paration of combustible matter over nit^ht, and
next morning ; the iiic hapnens that very day.
That, therefore, ynu will take as one circum-
stance. IShe then mentions another, which
turns out to be alro material, which is, that on
the Ftiday, looking into the prisoner's bundle,
she for.iid in it part of an old shirt and a pair of
leather breechts upon a tin case: now, you
have had it in e; idcucc, (hat a tin case was found
in tlie llemp-housc ; islie says, she \iewed this
tin case a quarter of an hour, and therefore is
verv particular in swearing that it is as much
like the case, which has been produced to you,
as any i bins' cun \)o : she says, she was so much
alariiiiid at liitf procccdin(;s, that she ordered him
out of her house, and indeed she says, that she
ivonid Mi)t<joitthe room, lie said he wanted his
candle ; she hid him take it as he went down ;
that, !>yanil by, may turnoiUalsotobeacircum-
stuaiv lit to he reuieinhered. She says he took
auav the bundle, hutshedoes notknow whether
th(.' eudlKti r wu» in it at that time ; she had seen
it on tl;t> I'Mday, and this wa<« on the Saturdn}'.
Thin Mr. Coiiiuiissioner (lauibier produces the
Liimii.' \^ hich he roccivcl tVoni his clerk, John
Jelli .t'vs on ilie 21i»l of February ; it is shewn
t<» 3Jis IJuxr.l, who hay?, she does believe that
|u be I In* N'line hll.'idle.

J'Mui .l'Jfcr«'\s, who delivered the bundle to
Mr. (i.iinMi"', *ii\s, that he ha»i no douht about
the ii uidkerctiiej', whir.ji incloses the contents,
heino; :hf sanje; he s:iys, ihal on the evening
of the ':^Oth (d' February, he had orders to
search all about, aud particularly in North-

t

strest, aad he found the bundle io North-itmt
at a Mrs. Cole's.

Mrs. Cole being called, says, that she koon
the prisoner; that he came to her hnnseoD the
day of the fire, and took a lod^og there ; tliit
he left a bundle ; and looking at the bundle no*

troducedy she says it has all the apnearsikoerf
eing the same bundle. Mr. Jeffereys, ul
another person, she says, bad it from ber; tkit
she never opened it whilst she had it ; thai dw
bundle was not tieil quite close, and she nvi
little way into it. She says the prisoner caM
to her house in the forenoon ; that he stiid i
quarter of an hour, and went out about 11 «
12 o^clock.

William Abram, a blacksmith at Portsnoutb,
says he lodged in the sanae room with the pri-
soner at Mrs. BoxelPs; the prisoner asked tbe
witness if there was any pressing? He aid,
yes, there w»6 a very hot press. The prisooir
said, suppose they were to take up such amaa
as me, I could give no other account of mjself
but from writings in my pocket. Then be'ask-
ed, if a man was to get into the justice\ liand,
could there be anv way of escaping? Tbevii-
ness said no. Vfhy not e8ca|ie? said the pri-
soner, Why there are very high walls — itby
is there no way of getting over the walls.*— Im
said no. The witness says, that then the pri-
soner said there was one Brof»ks io Ness^ite,
that he knew would be hang'ed. He sa\stk«
prisoner had yellow buckles on, but he caaiiot
swear to the buckles that are shewn hin
(which are part of the contents of the bnodlp),
being those buckles, though they are ibe
same pattern. Now, upon this eiideore. I
would make this observation ; that Abram
proves the identity of the prisoner ; he prorrt
too his lodging at Mrs. Bo.xell's house, so that
he confirms her evidence, and to his hn!^'^
there at that parlimlar time; aud then the
bent of the prisoner's conversation withlaiR,
(for you are to take the whole evidence to-je*
ther) you may, perhaps, think, implies tli&t
he then had something in contemplation, vbirH
might induce him to wish to make h.»
escape.

The next witness is John Baldwin ; this wa
see is the material witness, upon whose ac-
count ver}' much uill depend. J did reador^r
his evidence before to the prisoner, as he \ti>li*
ed to hc-nr it; but 1 will repeat it now iowu.
John Baldwin says, he first saw the prisom'r oi
the 7(h of February, at sir John Fieldiiiir's
having been sent there by my lord Temple.
because he thought he might know the pri-
soner, as he was a painter, and hud liveil lo
America, and the prisoner was descrilieii ai
having been there; he says, tU^i he hjjiscir
had been at Amhoy, ut New York, and at Tlii-
ladelphia; he says, he tohi sir John FiilJie.;
that lir had never seen the prisoner ; tiut lU
prisoner heard him say so, and made him a
bow : he afterwards saw the prisoner in another
room, and the prisoner beckoned to him, an^
he sat down by him ; and then he entered ifiit
a little discourse, and asked him who hs kuiv

R/op^Ht

A. D. 1777.

[ISM

there ? be mentiooed sereral people, |>ftrt]Cohir-
\y some painters ; and he told him, ** you
•re Dot like the other evidences, who have
■worn falsel]|r, but yon are a gentleman, and I
iritb it was in mv power to mike you a satis-
fiiction,*' and said he Sliould be glad to see him
in New Prison : he says, at near four o'clock
be went there, he went into a comer between
the two gates, and there he discoursed a good
«leal with him about America, and desired him
to come again the next day. Lord Temple
sent him, in consequence of this, to Ibrd
George Germain ; and they both thought it
inaterial that he should go to the prison. Ac-
eordingly he went again the next day, and
bad a good deal of discourse with the pri-
soner ; the prisoner told him he found he
^as an American by principle, but what
countryman was he? He said he was a
Welshman ; " Why," said he, " I find you
•re interested for America, howcTer." Then,
be says, he told the prisoner that he was mar-
ried at Aroboy, and they Ulked about the
witness's family. He waited upon him, he
says, from day to day, till the 15th, and in the
course of all that time, nothing but general
discourse passed upon the subject of America;
but upon the 15th he made material divcove-
ries ; he then began, and he told him all the
particulars. I do not mean that he told him
all upon the 15th of February : but I collected
from his evidence, that the substance of what
be has tfild you, all passed subsequent to the
I4th of February ; and among other things,
be asked him, '* Do you know one Mr. Deaue ?
he said no. <• What, not Mr. Deane, employed
%X Paris by the Congress ?"— No. «• What, not
Silas Deane !'»-^No— » He is a fine fellow ; 1
believe Benjamin Franklin is employed about
the same errand." And then he told him that
be hail taken a view of most of the dock yards
and fortifioHtiuns about England, and particular-
ly the number of guns in each shin of the navy,
and the weit^rht of their metal, and the number
of men ; and he vaid he had lieen at Paris two
or three timeM, to inform Silas Deane of the
particulars of what he found in the dock-yards ;
that Silas Deane was greatly pleased with what
he had done, and he acquainted Silas Deane
in what manner the dock-yards were to be set
Ml fire ; and Mr. Deane was amazed he could
undertake to execute it in such a manner alone ;
but he told him he would do more execution
than he could imagine, or any person upon the
face of the eatth. Deane asked him what
money be wanted to carry his scheme into exe-
cution ? he said not much ; that he ex|»ecte4l
10 be rewarded according to his merit. Silas
Deane, however, he said, gave him bills to the
imount of 300/. and letters to a great man, a
considerable merchant m the city of London.
In his discourse wiih the witness, heexpress-
h1 his anxiety to know whether my lord Corn-
nrallis hatl been defeated iu America ; be said
16 knew Washington personally, and believed
bim to be abler than geseral Howe. That he
iroDld watch and haraai gei^^l Howe, aod

he was sure the Americau would ooaqner thii
winter; but the grand campaign was to be in
the summer. He said he only wanted a lew
experienced officers, which he believed would
be supplied from France. That Silaa lieano
was appointed at Paris for that purpose, and to
buy stores and ammunition ; but as to cannon
ball, they bad enough in America, particularly
somewhere in Maryland, to supply all Europe;
and likewise pitch, tar, and turpentine. He
says, from the 7th of February to the 84th, be
was with him e?ery day; and mostly twice a
day : the prisoner told Inm among other thingi,
that he arri?ed at Dover from Paris, aod
went to Canterbury. — Now here you see ap«
pears the materiality of the Canterbury evi-
dence. That he went into a shop at Canter-
bury, and bespoke a machine to be made which
they called a canister ; the master to whom \m
applied he said was a stupid fellow, and did not
understand him ; but tbe boy was more inge-
nious ; though he was obliged to stay by him
to instruct him. Now that boy you see haa
been called, and confirms this part of Baldwin's
evidence, by swearing positively to tbe pri-
soner being the man who came to his master's
shop, who bespoke the canister — for whom he
made the canister, and who took away the ca-
nister. That the prisoner told him be gave the
boy something to drink, and then he went into
a public* bouse with the canister under the
breast of his coat ; that there was a dragoon in
the bouse with whom he had some words, ami
that the dragoon opened his coat to see what
he had in it. — ^The dragoon, you will recolleot,
is called, and he confirms this story, not direct-
ly, but in such a way, as leaves you very little
room to doubt about it ; he does not, you will
recollect, swear positively to seeing the actuAl
canister itself, but be saw something under the
breast of tbe prisoner's coat shining and glitter-
ing like tin : and he mentions tbe circumstance
of the prisoner's having had a quarrel with hie
comrade, which the other dragoon also con-
firms him in, though both of them swear cau-
tiously to the identity of the prisoner. The
witness says the prisoner told him that from
thence he went to Portsmouth, where he took
a lodging at Mrs. Boxell's ; and there he tried
his preparations. Now, gentlemen, 1 think I
am warranted in saying, that Mrs. Boxell's evi-
dence was very material, inasmuch as he him-
self, in his discourse with the witness, has con-
firmed her testimony in the strongest degree:
for he tells him here what she told you belore,
that he was employed iu her house iu preparing
and in trying these combustibles. He goes on
and says, that there were matches made of a
sheet of whited- brown paper being folded op in
ten or twelve folds ; amd he told him that this
was the method in which he made them in
order to be done over with a coni|H>8itiou of
charcoal and gun-powder ; that is a small cir-
cumstance as it passes ; but you will recollect
it presently, as being perhaps nisferial : Un
cbareoal he said niust be finely pounded upon
a coh>ur>itoo6y luch m painten use, in order 16

1355]

J7 GEORGE in. Trial nf James im alias John the Painter, [V.

I

I
I

make it efffctual: he uid the ptpe
tluiiblfc) brrure it «u dune, in orikr i
ib cracking. Now Ihtre w» n wiln
afieriTu'd*, relaiiTe in wliat |iai»«il i
irliD ii a painter. You nill recollect
siroiiB (bat he shoiilij tleer clear of ilrupiiingany
lhini;ahDuI Ihe calamity that we have all lira ril
of at llrialol; because we are
charily ur justice at liberty to enppoae, thai
■his jirisoner had any the remoleal Ci
tinn vriili what bappeoecl at Bristol.
Ibe etidence was material in lliis wi_.
ptttte liira at Bristol, merely tiir Ihe purpose
of uouiirmiiig that part of tlalili ' ' "
where he teiJ l'h< priaoner lolU
allerwanis to Bristol, and to prove him to haie
been wiih Mason, the (winter. It shews, loo,
that he knew bow tu moke this preparation,
and that io fact he did hiuiself apply to Ibe
{iiiDter to grind charcoal upon a alojie, Ibr
Home [lurpoie or another ; what that purpoae
t*aa is no considerntion ur ours, nor was tha'
the tiew with witich the evidence was called ,
but however he k(iew ihal wb9 Ihe method of
grinding charcoal, and iherel'ure it coiilirms
Baldwia, in some measnre, in llija pari of bii
relatifin, The witness aaya he lold him thai
Ibe gunpowder does not require much t^rind'
inir; thai might beiua>bed with a knifi:, ai
painters mix vermilion : but they roust be very
particular in mixing Iheae two bmliea together :
the charcoal is ground in water, then mixtNl tit
to the consistency of new milk, and then Willi
a aotall brush, ine paper, ihal is to make thi
match, ia puioted over wilh it: and it is so inn-
uagtnJ, that the nintch will lust S4 bnnrs. Yuv
will imagine, I dare sty, wilhout my telling
^ou, that il ia material fur any person, who in-
t'n'la lu rHrry inl'> rKecutinn such a |iur]>0Be ni

1, thai it

}uld r

: bei^:

^nted ti

iv is of importance ihnllt ihonld he
abuut, in order to faoililale the party'« rscape
and therefore il is to he so contrived, that it I
not instantly to lake fire. He luld ilie witness
be lodged at Mr*. Boxcll's one nijfht, but she
was a very impudent woman, fur she had open-
ed bis bundle during his absence. The lin ma-
chine, be said, was n curious contlructlno of
his own invenlioo ; and in that we ah go along
with him ; il most certainty ia a curious in-
vention ; and it ia only a pity thai it was fnr
inch a purpuse. He tnid him he had a wooilpn
box, which WHS made wilh a hole in the ccnlre,
lo put a candle into il ; and in ihat box he pul
tar, turpentine, and hemp, lie said the can-
nister fitted the box so well, Ihat when the
candle was put in, nohody could pcrodve any
light: then he told him, that on the (]lh of De-
cember, he went into the yard, and got into Ihe
Uemp-house, where there was a deal of hemp,
BO tight malted, that he could hardly get it
apart — that he pulled his coal off to nnrk al it ;
and then, after lightening the hemp, he placed
the canivter over the bos with a small candle
in it. Now, genlleuien, you will recolleet that
Mrs. Boxell lold yuu he was very desirous of
having ■ candle, when he went away from her i

house, and that she told him he might lake i
as he went down slain. He said (le sptinl
Kome turpentine alwut the hemp Ihat vaa roi
it; and whrn he had done that, it vraa tt
time before he fonnd bis coal ; and when
found il, there W83a £ood deal of h^rnptuck
ahout il, which be eindeavouTed to gel flffj
then wen! out of the Hemp- house, and gut
the Rope-house; aod belaid down a ^uart'
tleofipirilsof lur|>entiue upon iu tide, i
hemp io it inalead of a cork ; he said cIm
the hemp be laid a piece of painn", with
guupowder in it, and tn the paper, where
powder was, one of these matchea; and i
the powder he laiil aomu hemji lightly alren
and a (juart of turpentine poured all aboni
Now, gentlemen, if you believe the fact <{
this accuuol, to he sure it is impoaaible In (
ceive, ihat any man could (ike lib mean
more eBectually for dmng complete intacU
lie awd, that as soun as the fire of the oil
touched the powder, it would lel it all i
bbize presently ; and thai by cultii^ tb
matches iuto pieces, it would answer to I
lime, so that lie might make bit escape. .
told him, llial the next day, which wm
7lh, he went from Mra. Bozell's, and iwdt t
other lodgings, une al a public house, lliaod
at a nrirate nnuse ; and he touk parlienlsr i
lice before he took the lodging*, which ban
had the roost wood about thora, and he w4
had these combustibles ready for aetlii^ tbi
two houset on fire, on the samo day llut be:
lire to Iht! Rope-yard, in order tfiathenu
keep the eni;inet engaged : he lolil the waa
al the lodgings he took on (he Commoo, d
he was goinifto PelersBeld, and Wg^ed bv
lake care of hia hundk — that bundle veo ' '
an account of, alter Ihal he went into tfal ""
yard in order lo set fire lo (be Ilciiui-liiinA
and the Rope-bouse. HeCrsi, he aaul, iinl
into the llemp-hunae, and struck a ligtii; M
the matches were very damp, and hecouldaal
get Ihe suljihiir tu uke, and he wasted in tU
irial the whole bui full of linder, and fale* It
1 he almost burnt hia lips: tlienbewHl
away fnun Ihe llenip-hnuse. in despair of Mt
lin^ fire lo thai, and procured tome belt«
matches; aud he returned, and got into A*
Rope-house; and then besei fire in the maub
Ibnl led lo Ihe powder, This is the acpwiot
he gave of Ihe manner in whiub he peT|Hlrst«4
lis crime: he said he had bought a hall'peuaf
orlh of inalches Ihe day before of a wnotisi
lal woman, vou see, is called, in the «uhw-
quent part of ihe evidence, and cutiliriiu Bald-
win in thif circumiuuce loo of hU relaliot.
The day he put the preparations in, he a<i4.
was BO lung about it, that he was lo<4r4
the Hemp-house, and could not get aui;
he tried at ceveral dnora, he went iben up stiini
and pulled olT bin shoes, and tried whethef N
could get out ; fioding that he ci>ii(d not. h>
ime back to the same door, where heaiii^
iLiiebody, he hnlloed ; being asked bow ba
line Ihere, he uid it was curiosity
I Ihe outside of the door directed '

ed bow baa
tiiinitIMn

J

1357] Jor seHing Tin to Portmotdh jRope-ffouse. A. D. nil.

ivhich way he should get out ; this too is con-
firmed so far, that a person was locked in, but
who that person was, is not positiTely pro? ed.
He said, when he came out, he was much
Yezed that he could not set the Hemp- house on
fire ; and also vexed because he could not go
to Portsmouth Common, where he had left a
parcel ; which, you will observe, he told him,
and it is very material, contained, among other
things, a pistol, an Ovid's Metamorphoses, a
book entitled The Art of War, and making
Fire Works, and a passport from the French
kins^ ; all of which you see are found in it.
And in that passport, he said, was his real
name, which vexed him more than any thing ;
but, however, as it was in French, he did not
imagine that the people at the Imlging could
read or understand it ; hut he expressed his
surprize that this bundle had not been found.
He said, after setting fire to the Rope-bouse, he
made the best of his way towards London ;
and that he was so sorrv be could not get the
matches to li^ht, that he had a good mind to
shoot at the windows of the woman where he
bad them : he said, that he burnt the bills and
the letter (which you will remember he told
bim before he brought over from Silas Deane)
on account of the behaviour of Mrs. Boxell,
for he evidently suspected that she entertained
some doubt of him ; and, therefore, lest the
person to whom the letter was addressed, or
the bills might lead to a discovery, he prudently
burnt them all. He said, soon after he left the
yaril, he jumped into a cart, and desired the

woman to drive quick ; this, you see, is posi-
tively confirmed by the woman who drove the
Tery cart ; he rode in it two miles, and gave
ber sixpence to go quick ; that he had near
four miles to go before he passed the sentries,
aod therefore was very desirous of getting past
tbem ; and that two minutes after he had
passed them, he looked back and saw the
flames, and the very elements seemed in a
blaze ; he walked all the way to London ; and
in the road between the last sentry, and
Kingston, two dogs barked at him ; he shot at
one of them, aod believed he killed or wounded
him. The next morning, being Sunday, he
got to Kingston, and waited there till near
oosk ; he then came in the stage to London,
and waited upon the great man, the merchant
ID the citv ; and he told him that he bad a
letter and bills upon him from Silas Deanc at
Paris, but which be had been obliged to bum.
The merchant, he said, seemed very shy of
bim, and said he had received no such accounts
from Paris ; he answered, that he mi|;ht think
what he pleased, but that he was an enemy to
Great Britain, and a friend to America ; and
4bat be had set fire to the Rope-house at Ports-
mouth, which he would see in the papers on
JMIonday. Baldwin said he could not get the
oame<of the merchant from him, but the pri-
soner said the merchant appointed to meet him
at a coffee* house, and the gentleman waited
there accordingly for him ; they discoursed a
Kttla togttberi hut the ge&tiemaD leemed still

shy of him, and another gentleman in theJ
coffee-house taking particular notice of him, bO
did not care to stop long : he was so angry that
the gentleman would not believe him, that he
got up and went to Hammersmith, from
whence he wrote to him, and said, he was
going to Bristol, where he would hear more of
his haody works ; and you will remember there
is a subsequent evidence. Mason, the paintery
who tells you he saw him at Bristol. He said,
he arrived at Bristol a few days before Christ-*
mas ; that he got leave of a painter there to
grind some charcoal upon a colour-stone of his,
and that the painter took notice he was long
abont it : that painter, you recollect, has been
called, who tells you that the prisoner did ap-
ply to him for the purpose of grinding charcoal
upon a colour-stone, and he did according so
grind it. Then the witness says, that he .gave
an account of this from day to day, to lord
Temple and lord George Uermain, and ha
mentioned that the 15th was the first dav that
the prisoner diseased any of the particulars to
him. Now, gentlemen, you see from this
man's evidence, there is an exceeding clear,
intelligible, and consistent history giten ; hut
if this account, clear and consistent as it is,
were unsupported by other evidence, one might
perhaps entertain some doubts about it; but
where vou find it confirmed in almost every
material passage, where you find it not con-
tradicted in any one circumstance, you must
then, I think, feel it, when so authenticated, to
be a very strong body of evidence indeed.

Edward Evans, who is one of the dragoons^
says, that he was at Canterbury from October
till the Ist of February. But yon will observe,
that he does not pretend to swear positively to
the prisoner ; for he says the man is mucb
altered since he saw him, though be believes
him to be the same. He says it was about the
end of October, or beginning of November,
that he saw him there, and that too you see is
contradictory to the other evidences ; as to the

Krecise time they do not agree, as I told yoa
efore ; but, however, he agrees in this mate-
rial article, which came from the prisoner's
own mouth to Mr. Baldwin, that he was there
at the time when he had a quarrel with him ;
in fact, the witness says he had a quarrel with
him (supposing the prisoner to be the person)
at Canterbury, and be then saya that the pri-
soner had on a brown surtout coat, but he did
not see what was under his coat.

The next witness is James Wilson, the com-
rade of the last witness, who was there at the
same time, and who says that he really thinks
the prisoner is the same person, though he will
not positively swear to him, and that the dress
was the same as he is in now ; he remembers
that there was a dispute between his comrade
and him, and he says he did observe something
white under his coat which glistened like tin.
John Fibber lives at Mr. Tuck's at Canter-
bury, who is a tinman : he savs he thinks he
has seen the prisoner, and he believH it to be
about six or aevsu wssks before Christnu that

1359]

17 GEORGE UL Trial of Janus HiU alius John tU Painter, [1309

he saw him in bis master's shop ; Toa see ihey |
all vary a little as to the time : he ^<«\s the pri-
fooer ordered two canisters, and he ordered
them to be made of a lon^ M|uare shape ; and
OD«s of them beiuif produced now to him, be
believes it to be the same; and he savs he

Edward Carej, a shipwright, sajs he visit

I PortiDioath tbe'day before the tire; atMl tbtl
nii;ht he remeniber » a person btio:^ shut up ii
the Hope- house ; he heard a |»er»ua mftkic^ i
noi«e in the llope-bnu^, uho said be vii
locked in, and desired hioi to let him oat; ibe

doe<« not know wliy the prisoner did not take j witness said he could not, and went a«av ; n
them away, but he left them at their simp : - that little circumMancp too, meotitmrd by
however, he say^, the prisoner called nnce for } Baldwin, you set: is contirmed by this witoea;
them, but thfv were not then oiinpieted. • he remeriibcrs a person bein^- liMrked up in the
Now, ^eottemen, upon this maii*s eiidence you Ilope-house, but yuu will obs^rte thtt be
will naturally make this observation, that the i does not pretend to auiy that perioo wat ike

Carson, be he who he may, that uitnted this tin j prisoner.
>z, certainly wanted more than one ; uhy hr- j Then ^nn Hopkins is called. 8be is tbe
did not bespeak them all at the same shop,* womun that drove t!iv:cjrt t*)!it fi\v fi't^ni Po;ts-
caimot well lie accounted for, unless it be thai | m 'Uth, into which you recol't-ct 'ae told Bal^-
he thought so many atone place nii^ht Irail lo win that he cfot. She says she saw the ^ri'

some suspicion. However, the fact turn< out
to be, that he did not stay for these tt^o being
made ; they were left behind, and he only car-
ried off that which has l>een found.

soner the day that the Dsck vi-a« en tire it
aliout four oi haW an hour p:i»t fo^irin tbe&f-
teruuOQ. At that linte she was comin;; from
the market ; she sjw him first between t!i;

William Jialdy is nextcaled ; and he proves ! Hull and Cosbam, she dii n«>t see him LiiLe

the prisoner not only in the Dock-yard, but in
this very buildin^^, on the 7th of December.
The witness says he is a r<»pe-maker, that he
has seen the prisoner in the Dock-yard ; he
tays he saw the prisoner in the Itope-houseon
the lower floor, about a hundred yards from the
east end of it, on Saturday the 7th of Decem-
ber, between eleven and twelve o'clock, which
was the day of the fire. He says he saw the

Rrisoner come down from the upper fiart of it.
low that too confirms the story that Ilaldwin
has told ; for the prisoner said he was first in
the lower part, that he could not get out there,
and then he went into the upper part ; the wit-
ness mentions an immaterial passage, which I
need not repeat to \ou, about picking- up a
small stone, and he had a Utile discourse with
him : that was only ankeil to satisfy you that
he was so long in conversation with this pri-
soner, that he could not make any mistake
about his person, but that he was the man;
he stayed five or six minutes nith him, und
then left him : he savs he saw him al^out ten

mr

minutes or a quarter of an hour after this at the
Ciast end of the same iloor coining down stairs ;
anil then one William Weston being with the
uitness, the prisoner said to Weston, 'Mlow
du you do?" holding out his hands to him ;
and he, thinking him lo he an acquuintnncc nj*
his, did not stay to hear his conversation with
him, hut went awny. He closes his evidence
with saying, that, from seeing him at these
dilitTeiit times, he is certain he is the man.

W illi.iui Weston 6ays, that to the best of his
recolU'ction he saw the prisoner in the Hope-
house tlie day tlie fire was. — He had very little
convcrsaiiou with him at that time; but he is
i)ositi\e it was the same man ; for he had seen
him, he says, seven weeks before walking
about in the Dock ; he did not however see
him come down stairs : these two witnesses,
as far as their evidence (;oes, prove him to
have been in the Dock-yard, and in that very
building in the Dock-yard, upon the day when
tlie tire happened.

came up close to her ; lie i^topped her ud
asked her where she was };'r»in:; ? ^^be saidi i
little way ; he said be wuuld ^ire her at
thing to give him a lift, for he wav goio^io
Peterafielu that night, and was nfraidhe fthouU
be belated ; and intreaied her lo drive a« iMt
as she could. When -he came into the can
she observe<l he was much out of breaih; fbe
told him she was to stop to buy a pair of pi'*
tens ; she did accordingrfy stop at a shop ; sbe
was to pay a shilling for them ; the prisiivr
threw down siipence, and then he sai'l, U
wished he could get a returned chaise; laJ
when she stopped a little before ^he came (•>
her own house to give her hurse somedruk,
he jumped out, and ran away along the l/t-
don road. Mow, with respect Vt this eridenn
to be sure, any person, totally nnconccroeJ 1:1
any guilty deed, might Ik^ anxlou* v* u^i •■
Pelersfield ; mi;:ht be afraid of beinj: '<•
ni&rhted ; might wi^h her to drive mt) i.-^i
all that might happen very uatiiraliv ui;:.!-Ji
any imputation upon the party ; hui', as 1 ^i^
before, you are to lake iliis case with all us Cir-
cumstances together ; and every liiile rirciK'
stance weighs something ; and i( yuu sii jU
trace the prisoucr to the very place, aliu?>t ^
the moment of the lire, if you trace him Iciriu:
the place immediately alter, and heiii^; m tii.f
state, out of breath, eager to sfet olf, presc.'
the woman to drive on, anxiuus to get a it-
turned chaise, jumping uut, and running for-
ward when she stopped ; laying these c.icuai-
stances together, with all tlie others, lobesiHf
ynu will be jnstiOed if you entertain yome iitf'
picions about his motive. Hut all this)'>u«:^
weigh together with the many various circua*
stances of the case.

Klizat)eth Geuteil says, she lives on IVro*
mouth Common. She saw the pris4>ner at Ix^
house the day before the fire ; lie came titfr
and asked her for a halfpennv-wonh of
matches. That you see, gentlemen, UiD^'b^r
circumstance that has been proved to yiMi. *^
coming from himseLf to BaJdwlD } tlui ^

] fi^ seeing Fire to Portsmouth Rope-House, A. D. 1777«

t ft halfpeany worth of matches of a
1 at Portamouth. She aays he asked
ilarly if the matches would lake quick ?
>k a bundle and tried one or two of tliem,
en he took out some money, and paid her
peony* She snys she is sure he is the
person. Now, upoo this evidence, it is
ur consideration whether a man, goings
f matches, would or would not shew
n anxiety about their lieiiig particularly
ade ; and there is one more observation,
1 would make to you, that the man who

0 buy a halfpenny worth of matches for
'n use, is hardly such a man as could
to express a desire of meeting with a
laise to carry him to Fetersfield.

next witness is John Illenden, who is a
•n and apothecary. He says, tiiat as
hnman possibility can go, the prisoner is
rson whom he saw at Canterbury, three
' days bpfore or after the 20th of No?em-
ind that he is particularly clear that he is
m, because he came to his shop to buy
inces of spirits of turpentine, anu a quar*
a pound of saltpetre. Now, gentlemen,
hiugs you will feel a man might inno-

buy, at the time you are recollecting
lese materials have been found upon the
md that they are materials necessary for
St ion.

y Bishop says, (hat the prisoner was at
luse at Canterbury, between Michaelmas
iristmas ; so that she speaks very vague-
ut the time ; she cannot be fiositive when
I, but she remembers one circumstance
ing it to be the prisont^r) that he told her

1 been interrupted by, that is, that he had
quarrel wiili a dragoon at the White

, and he told her in conversation, that he
from America, on account of the dis-
ces ; but he asked her a material ques-
lud that was whether he could get a
n thing made, which she did not know
lame to give to ; bnt the wooden engine,

produced, being shewn to her, she says,
her directing him to some man, who
make it for him, that she saw something

a Mr. Overshaw's apprentice brought
i prisoner in the afternoon of the same
no that he put it imder his coat, wishing
bave it seen. The counsel very properly
Ibe woman what was become of the ap-
se ? because undoubtedly they ought not
'e stopped short, without calling the ap-
se ; but the apprentice, she says, is dead,
>re we cannot have any clearer or fuller
ce upoo this matter. Then, upon look-

this wooden machine, she says, it is as
IS she can guess, like that thing she saw
it to the prisoner.

D Dalby is the person who apprehended
isoner, and he is called to prove what he

upon him ; he says the prisoner had
lioa a pistol primed and loaded with shot ;
d a pistol tinder- box, whic'.i was also
1 ; and he had a snuff-box full of tinder.
greotlemeo, that is a little circumataoce
L, XX.

[136S

that is uncommon ; a man's carrying about
with him ^a pistol tinder-box to strike a light
may very 'well be; but he seldom carries mor#
tinder than that pistol tinder- liox will hold ;
for if ever you saw one of these, yon must
know there is a part of it made to hold tinder
in ; but, however, over and above that, he had
a snuff-box full of tinder, and he had a powder-
horn with some gunpowder in it. He says,
he had also two bundles of matches. You re-
member he was discontented with the matches
which he tried, and went out of the Doek-yard
and bought others.

Thomas Mason says, he lives at Bristol, and
is by trade a painter ; that the prisoner called
on him the day after Christmas -day, and asked
him to let him grind a piece of charcoal upon
his colour-stone, which he did ; this is only
material to show that he was at Bristol, as
Baldwin mentioned he was, and that he knew,
in fact, what use the colour- stone could l>e ap-
plied to.

Then, gentlemen, the only remaining evi-
dence is the contents of the bundle. The biiu-
dle has been opened, and in it is found the
passport from the French king, aliout which ha
expressed so much anxiety, lest it should lead
to a discovery. That passport is dated the
13th of November ; it is in the common form,
to grant him free permission to go out of the
kingdom, and to continue in force for one
month from the date. Besides that, there u as
Ovid's Metamorphoses, and a Treatise of the
Arms and Engines of War and Fireworks, and
the Justin, the books he mentioned to Baldwin,
and the pistol, and some few other things.
This, gentlemen, is all the evidence in support
of the prosecution.

The prisoner has called no witnesses, but he
has rested his defence chiefly upon the credit
that you ought to give to the evidence of Bald-
win ; because he says, that a mm who was
capable of draviin*^ out this evidence from biro,
ought not to receive credit in a court of justice.
Gentlemen, i bave told you before, and I ought
to tell you now, that, in point of law, there is
no objection to tliis man's testimony ; and from
the manner in which he came by the know-
ledge, which he has now furnished us with, I
do not see that there was any thing which caa
lead you to suppose that Baldwin was the first
mover with him, or that he prevailed upon the
pris(»ner to disclose the secret ; but it should
seem as if it came from the prisoner himself,
though it was undoubtedly upon the idea that
this man was his friend : because, if you do
not suppose that, you must suppose him madder
than any man that ever was born. He certain-
ly thought him his friend, and he therefore did
disclose all this to him.

Gentlemen, one has only to say further, that
if this point of honour was to he so sacred, as
that a man who comes by knowledge of this
sort from an offender, was not to be at liberty
tu disckMe it, the most atrocious criminals
would every day escape punishment ; anil
therefore it 'a, that the wisdom of the law

4S

death should not be pamd upoo htm, to whkl
he replied, *' I bft? e noihiog to aay."

Srhtbiicb*

1363] 17 GEOftGE III. trial of James ttUl alias John ihe Painier, [13B4

knows nethioff of that point of honour ; if the
man is a legal witness, you are bound to reepi? e
his testimony ; gif'mg it, however, that weight
«nly which you think it deserves: for it is al-
ways in the breast of the jury, to consider of
the degree of credit they will give to every
witness. Let him be in all lights a legal wit-
ness, yon are still to be the judges of bis credit ;
if you think that a man, because he listened to
this tale so many days, and disclosed it as he
heard it, to the great officers of state, and has
disclosed it now in a court of justice, is a man
to whom belief cannot be given, in that case to
be sure you will set aside bis testimony ; but if
yon see no ground to suppose that the man has
•poke untruth, you cannot then r^ect hia tes-
timony.

Gentlemen, the trial has lasted already very
long ; the summing up has also been long. I
have endeavoured, as I have gone on, to lay
together some of the many circumstances of
this case for your consideration ; and I do as-
sure the prisoner, as well as yoir, that if 1 had
found myself enabled in my conscience to have
stated any thing more favourably for him, T
would have been the first to have done it. But
1 am sitting here to do eqaal justice between
the public and the prisoner; and I was there-
fore bound to make those observations which I
bave done, because they strike my conscience,
ms being necessary and material. I thank God,
however, gentlemen, that you are to judge of
these circumstances ; you are to lay them all
toarelher, and draw your conclusion from them ;
and if you believe that there is such a train
following one another, I had almost said so ir-
resistibly, as that you cannot doubt that in the
first place the fire did happen by these com-
bustibles, and then that the prisoner was the
person who laid those combustibles there, I
should suppose you can have no doubt but that
he set this building on fire wilfully and mali-
ciously. If ou the other baud you should fed,
thou{i^h there area great number of circum-
stances tending in some degree to the proof of
the fact, that your minds are not satisfied that
jt comes home to the prisoner, if you are of
that opinion, you oiight to exercise tlie jurisdic-
tion which you have, and acquit the prisoner.

I will say one thing more, and only one;
you are bound by your oaths to give a true
▼erdict ; and if the circumstances of the case
appear to you decidedly strong, you will of
course give your verdict on that side on which
they preponderate ; but if you should tbink
that they are still so doubtful, as that you can-
not satisfy your minds this was the very man
Who did the fact, in that case, in favour of life,
you ought to acquit him.

The Jury almost immediately proDOUDced
the Prisoner, Guilty.

The Prisoner was then asked, in the umial
form, what ht bad to say nvhy MOteoce of

Mr. Baron Ho^Aam. Pri80Der;Yoa bave ben
indictedi tried, and convicted of a crime, wbich
the law of this country has thought fit to soske
capital, and now the most painful hmmdcm thsl
1 have undei]^;one in the coarae of this trial h
arrived | for it is my duty to paaa opon jh
that dreadful sentence. I ahsdl not mtcmpi
tbgse feelings, wbich I truat you havc^ ly
talking to you of the enonoity of the ofan
which yon have committed ; liecanaa it isia-
possible for me, or any roan who ham oa^ti
add a word by way of anraTation to it : aaiil
has this in particalar aabat it, that it eusrt
have been committed from anj motif ca afpd-
vate malice, revenge or hicre. It caalmi
proceeded only from a general anlknily tf
i^ind, which hu broka out in a doMiaadi
design* not only to ruin one deToied iodividBi^
but to inv<|lve every one of this audienae, s^
the whole EpgUsh natfan, perhapa, in ioMi-
diate rnin. You cannot theteforft htmufdmi
that the law hu thought fit to pnaiah ssohi
crime with death. You can aa little be w-
prised, if, aAer you have been convicted 9fim
the clearest evidence of thta ofieace, I caa |^
you no hope of pardon.* It in inipossifchftr
me to say a word in your behsdf : aad Am-
fore I must entreat and coi^ra you, hi lbs imI
solemn manner, to prefiare youradf doriafikt
few days you bave to live, to meat the grrit
God in another world, aad to aak hha iftcR
for that pardon, which you could not rcethth
this ; there it will lie worth reoeiviag : ail
atrocious as your crime haa been, shoit as tk
time is that you have to live, a sincere repM-
ance now on your part, may, aiMi, I hope is
God, will procure you mercy at bis haa^ I
say all this not to taunt or distress you in josr
present unhappy situation, but merely iioa
motives of humanity and religion. For yM
cannot be suffered to live in this world ; yM
must die, and that within a very few i^t.
And therefore, before you go into eternity, («
your soul's sake, do what you cao, that ihn
eternity UMiy be an eternity of bliss instead ^
misery. 1 have only now to pronounce Ite*
nainfulf sentence of the law, which I lo
bound to do, and 1 accordingly adjudge ai
order that you be hanged by the neck uaiilyM
shall be dead, and the Lord have merey i^
your soul.

Prisontr, Hy lord, I am exoaodiagly ««B
satisfied.

* The prisoaer said, '* I do not look for i^
my lord."

f When his lordship oiedtioned the wiH
<< painful/' the prisoner taid *« joyful.'*

196^] far Hitb{g fire to P^rtpnovfh Bop^Hdflue. A. D. 1777..

[1365

THE PRISONER'S CONFESSION.

City of Wincheiter ;
The pgiuntary Cqnf^asiom ^ Jambs Aitken,
commo9ljf calif 4 Jo|In the Paints, now a
Priumer in the Counts/ Gaot if Southamp-
ton^ and under Sentence of Deaths for
hurling the Dock^yard at Porttnumth,
taken the seventh Bay rf March^ tilt ;

Saitb, that he wm born at Edinburgh, the
S8tb of September, 1769, his mother now
li?in^, ai he belie? es. Curiosity led him to
Virgnia, in America, at the ace or twenty -one,
as an adfentnrer to seek bis fortune — Lefk
America in March, 1775.

In October, 1775, ^by the name of Jionei
Poswell, iolisted a '^privaie soldier iu the
^hty-seoond regiment at Grayesend-^march-
kA to Cbathapi next day, from whence he
•oon deserted ; was not concerned in the fire
io Temple-street, firit4ol, nor pri?y to it. —
Bro|^ into Mr. Morgan's warehouse at BristQl
alone ; no person concerned with him in that,
or any other accident, that ensued in that city.
—He intended to set fire to two houses m
Portsmouth, in order to employ the engines, I
whiis^ the fire mijght spread in the Rope -yard.
—Broke into Air. Morgan's warehouse at
Bristol, in order to burn it, that the engines
might be there employed, whilst the shipping
yrtn burning and the quay, for which purpose,
be left a lighted candle burning in the said
Warehouse ; ^nd, because that fire did not take
effect, he afterwards set fire to the warehouse
in Quay-lane, by getting over the top of the
door. — Mr. Deane told him. when the work

done (meaning burning the Dock-yards at
Portsmouth, Woolwich and Bristol harbour, but
not tbe houses) he should make his escape,
and come, if possible, to him at Paris, and he
should be rewarded. As a reward, hisown ex-
pectations prompted him to hope, that he should
DO preferred to a commission in the American
aroDV.

when after setting fire to the Rope-yard, he
left Portsmouth (to wit) the next night, being
Sunday— he reached London, and went to
Doctor Bancroft, No. 4, Downing-street, West-
minster, to whom he had a veibal reconimen-
datiun from Mr. Deane, who ga?e him at
I^aris the doctor^s name in writing, and place
of abode; but the doctor would gife him no
countenance, and therefore did not relate the
particulars of the mischief he had done to him,
but hinted to him, that he would soon see or
bear by the papejs of an extraordinary acci-
dent that had hap|>ene4l.

And he afterwards wrote such an account in !
a letter to him, which he left himself at the '
doctor's house with a persun who came to the ■
dour, which for the sake of truth he relates, and |
without intention of casting any slur un the
character of an innocent man. >

That be saw the <loctor the day following in

5 I

the Salopian coffee-house, and told him that he
would do all the prejudice he could to this
kingdom ; to which the doctor replied, ** he
could not be of opinion with him m that re-
spect, for that he got his bread in this kingdom,
and therefore would not be concerned with
him." And seeing that the doctor did not
approve of his conduct, he hoped he would not
inmrm against him, to which the doctor said*
" he dki toot like to inform against any man.**
When at t^aris, be was assisted by Mr. Deane
with tweke six livre pieces ; he asked for no
more, neither did be receire from him any
b|nk bill, draft or note whaterer.

After leaving London (to wit) at High Wy-
corab, be broke into a house, and took away a
few linens, consisting of caps, handkerchiefs,
but nothing of value. He then went to Ox-
ford, from thence to Abingdon, where he at-
tempted to break into two houses, silversmiths
or watchmakers, but without effect. From
thence lie went to Fairford, where he broke
into a hoose, and took from thence a number
of stockings and handkerchiefe, and a metal
watch, and near fifty shillings in silver and
halfpence: the watch he pledged for sixteen
shillings, in tjie name of James Hill, at a pawn-
broker's in Castle-street, Bristol. After this^
without attenoptiog any thing, but having pre-

Kkred some or his ingredients, he went from
riatol to Plymouth, with iutent to set fire to
the Dock-yard there; twice he reached the
top of the wall, but the watchmen being so near,
he could hear them talk together, especially tha
last night, therefore be desisted; he never
committed, or attempted to commit any rob^
bery, but when he was like to be drove abort
of money.

After leaving Plymouth, he returned once
more to Bristci, with a determined resolutiooy
then, to set fi»« to the shipiring in the harbour
and in his way to Bristol, at Taunton, he at-
tempted to break into the hoose of a silversmitbt
or watoh- maker, without effect.

He attempted the shipping a second time,
but on account of the vigilance and strictneaa
of the watch, then kept on the c|uay and in tbe
ships, his attempt proved abortive. He like-
wise attempted on the Saturday morning, but
in vain, to get into a stable or coach-house on
the quay, in order to set fire to it ; but seeing
a man lying in a cart near the place, he de-
sisted.

On the Sunday morning following, he set
fire to the warehouse in Bristol, in Uuay-lane,
which he effected in the following manner ; (to
wit) he bought some coarse flax ou the quay,
and some turpentine at another place; but
where he cannot rcmemlier, and with those and
charcoal mntches and gunpowder, and striking
a spark of li^ht on tinder, to which he set a pa-
per iiiHtcli, he effected his purpose. The
match was made of touch |»a|>er, and as that
consumed to the end, the powder lieing laid, and
wrapt up, likewise, in touch paper, it of course
took fire, and so he presumes it iiistanliy
mounted into a blaze. Then he left tbe town.

1367} 17 GEORGE IIL ZVmI ofJamit WU aSiit Mitm

bat Meiag do firs behind, be Ktnned baek tba haam of
pirt'of diBVIij, liU«t bat, beuiBir Ibedtj rilTcr table «[
WH OD 6re, he ibcn went on to Sodbnr j, ead in the ipriog

flSB

bat Meiog DO fii« behind, be Ktuned bMk tba kooM of |lr. Mufc. wh«» IsMib In
', lillet bat, beuinfT Ibedtjr rilTcr table «paMs, and a fair briBnr taUM
'igotlTtS. Jma AmftL

ChitipcnlMm and Calnc; Bvt tba fint night
after the fira, be 4epl at SodboTT ; Ibc eaoood
idgbLhe fanba open the deer afuaol-hsuae
Beacit,«bera beil«pt,Bnd left bablad him in
thaBwmiwadwkbalern. OalbaWcdnea-
day uffbt m weot to Caloet and bcteg mh

whieh mfaberjr, aa It b Wfawa, b« ban do oeca-
eian to enUrge npen ik He left a paiaei, with
-a piilol end other thJi^ la tba pararii is tba
«bnrafa porch of Calae.

At Bmtal. ba Bret brake into Hr. Hoicui'a
warebtma^ and there prepared the oovbueti-
Wea, fbf aeUiof fire la the ehippiog.

UeneTCrwaaintbeASIbnginent; nailbw
did he go to Amertee in anj regioeat.
' HeaererMid, thatoneBnNika,oraojotbai
yniOBer ia Newgale mmld ba hanged, aa woe
owomagaioM him ifpea his trial; neither doth
lie bnei* nnj men bj the name of Bnwka.
: Bie fttber waa a bUekamitb at Etfiabiiigh,
«i>d ha wee a^renticed to n paialer tbm^
.aerrod bia lioM oat, and tbeo bad biaindea-
tnree deUiered np, lAiob he nwallj oarriad
•boat in bia pocket, and afterwarde honit then;
which ga*« riee to the ttorr of hie deetraying
paper* to Iberaloe of soot .

Tbooe were the thioga of nlue, wUeh be
Beaat to eiprcM by wbal he had burnt.

At to any merchant in Landon, or any otbei
pnvon, eioepl Dr. Baneraft, he bad no recom-
neudaiion to, or convenation with, rMpedisB
the miDV unhappj accident* befbre related.

That he alopt a poat-chaiae between Parte-
.inauth ind Petertfielil, niih a geDtfcman and
laiiy in it, bqidb cooiideraltlo time betbre tiM
fite, and robbed Ibemol 9(. 6d. of which he re-
turned St.

Tlie latter end of December, 177S, he inliiled
at Charrl in Somerwl, into the 13lh regiment,
with • recruiting Berjeant, and a few days altei
deserted.

At Til cli Geld, as has been publicly raenlioned,
lie fullotved tiie trade of a painter, also at Bir-
minijliain wiili Mr. Uobiosuo, at WarrioglOD,
and many otber places.

Tlint lie bad commttled, and attempted Ifl
commit keveral otlier robberies and burglsriea;
but of no material accuiiot to mention.

Declares that all liie acts bereio mentiooed
of a public, es of a prirote nature, were of liii
own mntiDn,and lliat be was not odrised ut
instigated tbenlo, by any person wbaleter, ex-
cept what is before related, and that he bad nn

One otlier circumstance strikes bis present
recoltecliun irhich he ii dniron* to mtDtion ;
and which bspiwiied ia the city of Norwich, at

a^ned

ri ,_

March, ITTT.— OBoaufe Dmamims
N. P. Ehnrt, two of bia H^eaty'a
Jnafieea of tbe Pcaee, fa asd Ar iba

by JaMH ArixD, rad pwhaltl
m to coataia the iiwlk nalr, a
— tf oa tUa TUt day at

Tbe Pfiaoaer traa named from WiaAwhr
gaol on the 10th t» FtirtaviMilb, whenitiM
anointed beakonld be eancled at the Hid

C; and tl)a Allowing iaau enact Meamtrf
dwrioitr from Ibe luae of bin Htiral la Aa

Harmg beeo oarriad ia an open atl btt
Bamp-henaeand roandthe rainaof tbawy
bouse, when be cama oi^oaite the cbmM-
■oaer'a booae, be daaired to apeak vib tt

forgi

' Sir ; 1 adnwwlcdM ■■ j cwioac, aad tat

fargmnefl fimn God, luoogb tba wA

Dj&noar Jeana Gbrut.

■ I ask pardon of yon. Sir, and biM |w
as." Upon thaeart'a noeiag.MMiL
onething men in obaeneaa a ai^a
to all the oommiaaiaaen of the daak^ak
tbroivboul England; to ba more viglMtaJ
ririctly careful of then Ibr th* fubn Uam
it tain the power of adetennined aadiaMhn
man to do a grest deal of rniachief."

As the cart stopped at the end of the Ibp
house, ho looked atleDtively at the place rf
his perpetratioD, tnd said, " I ncknowMgtaj
crime, and am sorry for it."

Just before he returned out of the Dsd-
yard, upun being asked there if be bad si}
tbinif more that be wished lo aay to tbe an-
misaioner, be said, " No, only I reaMOKal
gre^t care and strict vi^ituica at tbe dnt
yards at Chatham, IVooIwicb, Dejitford, Pmo-
mouth, acd Plymouth ; and |>articalarly ittk
Rupe-houie at the latter."

Just before he was turned off, he ■aid,'' I
ackponledge the justice of my aeateoc*^ ^
hope for fiir^Teriess, as I for^re all Ihe asrU;
I wish suceesatii liis majesty king Gecapal
his hmily, and all bia loyal aubjcct* ; ni I
hope tor furij^veness fur ail tbe traondiM
Ibat I lia«e been gnilly of from tbe year im
sioce my appreoticeKbip ; aud that iIm "^
wnulil be satisfied about hioo, aa bi* life aadi
be very soutt ia print,"

1S69] Addenda to Vol. 20—7^ Negro date. .A. O. Wl.

PS70

ADDENDA TO VOLUME XX.

Extremely had heakhf and Jrequent

unavoidable absences Jrom London^

have disabled me Jrom causing to be

inserted in their proper places the

Jbllowing articles.

ADDENDA

TO THE

Report, given in a Note to Sommer-
sett's Case, of the Negro Case in
France. See pp. 12, et seq,

NoTwiTUSTANDiNo the profusc aod high
aounding declamations of the French Jairyers
in the case of * La liberty r^clam^e par tin
nbgre contre son niaitre* (see pp. 13, et seg :)
coocerniog the iDCompatibility of slavery with
the soil or with the air of France, certain it is
that manj persons (the * serfs' or * main-mort-
ables— they had other deoomioatioos^ in dif-
ferent parts of that country continuea nntil its
convulsive revolution to exist in a condition,
which, if it were not strictly speaking slavery,
undoubtedly bore a very strong resemblance to
that status.

By an edict of August 1779, during
. M. Neckar's first administration, the benevolent
1/Ouis 16 abolished the right of * matn-morte'
on the royal domains, and removed in all other
parts of hts kingdom one of the greatest
grievances incident to that right-^/e droit de
tuite.

In the Encyclop^die, tit. Main-morte, there
18 a copious account, composed, as it appears,
bv M. Henrion, of this feudal institution. Into
that account is incorporated the edict of Louis
16, from which I will here insert the pream-
ble. It is an interesting historical document ;
and fomishes an authentic exhibition of some
important characters of the * Main-morte.'
Henrion denominates the edict, * nn des pins
beanx monumens de la sagesse de noa rois.'

** Louis, Ice. A tous, &c. Constammentoc-
eop^ de tout ce qui peut int^resser le bonheur
de nos peoples, et mettant notre principale
^floim k commander une nation libre et gin6-
reuae, nous n'avons pQ voir sans peine les restes
da servitude qui subsistent dans plusienrs de
noa provinces; nous avons ct^ alfect^, en
consid^rant q*i*un grand noinbrc de nos sujets,
aervilement encore attaches k la gl^be, sunt re-
Ipird^ comme en faisant partie, et confoodus,
noarainii dire, avec elle, que, priv^ de la li-
l>ert^ de fanrs person nes, et des prerogatives de
lapropri^^i ils sont mis eux-memes an nom*

bre des pofsesaions f6o6a\es ; qnMls n*ont paa
la consolation de disposer de leurs biens aprhi
eux ; et qu' except^ dans certains cas rigide-
ment circonscrits, ils ne peuvent pas m€me
traosmettre k lenrs propres enfans le fruit de
leurs travanx ; que des dispositions pareilles ne
soot propres qu*^ reodre Pindustrie languissante,
et ik priver la soci^t^ des effets de cette ^nergie
dans le travail, que le sentiment de la propriil^
la plus libre est ieul capable d'inspirer. J uste^
ment tooch^ de ces considerations, none
aurions voulu abalir sans distinction ces ves-
tiges d'nne f^odslitd rigoreuse: mais noa
finances ne noutf permettant pas de racheter ce
droit des mains des seigneurs, et retenus par
les egards ^ue nous aufons dans tous les tem|>a
pour les loix de la propriety, que nous consi-
derons comma le plus sdr fondement de I'ordre
et de la justice, nous avons vu avec satisfaction,
qu'en respectant ces priocipes, nous pooviona
cependant eifectuer une partie dn bien que nous
avions en vue, en abolissant le droit de servi-
tude, non-seulenient dans tous les domaines en
nos mains, mais encore daus tous ceux en-
gages par nous et les rois nos pred^cesseurs;
autorisant k cet efiet les engagistes qui se
oroiroient l^s^s par cette disposition, k nous re-
mettre les domaines dont ils jouissent,et k r6-
clamer de nous les finances fuurnies par eux ou
par leurs auteurs.

** Nous vonlons de plus, qu'en cas d'acqnisi«
tion ou de reunion i notre couronne, Tinstantde
notre entree en possession dans une uouvelle terra
ou seigneurie, soit Pe|H)qiie de la libertie de tous
les serfs ou main-mortables qui en relbveni ; eC
pour enconrager, en ce qui depend de nous, les
seigneurs de fiefs et les communaut6s i suivre
notre exemple ; et considerant bien moins ces
affranchissemens comme une alienation, que
comme un retour au droit natnrel, nous avona
exempte ces sones d'actes dt:s formalites, et
des taxes aox-quelles i'antique severite des
maximes fbodales lesavoit assujettis.

** Enfin, M les principes que nous avons de-
veloppes nous erop^chent d'alM)lir sans distinc-
tion le droit de servitude, noufi avniis cru ee-
|»endant qu'il dtoit uu exc^4 dans I'exercice de
ce droit, que nousne pouvions difTerer d'arr^tor
et de prevenir ; nous vonlons parler du droit de
suite sur les serfs et main-umrtables, droit en
vertu duquel des seigntiurii de fiel's ont quelque-
fois poursuivi, dans les terres franches de
notre royaume et jusques duns notre capitale,
les biens et les aci|udts dt>s dtoyens eioigues
depuis nn grand uombre d^annees du lieu de
leur gl^beet de leur servitude ; droit excessif
que les tribunaux ont hesite d'accueillir, et que
les priacipet de justice sociale ne nous permet-

x^avw^BL

,_ , ..MliariuM

tiMifrM>cww,iMt«>«fc 111 ^»^ ihni, j>^

fviniB, H ^

aillrB, aoeapMit Mtn ■nllkitaAc, M Ml dM
fcjgjlWg^t^ »llll<iM*iW»>HHIi

4* fh«uMm, kj tto«nM vTCM. *«. 31i
•w wWl. b^rtfe Md MttMoHd mhwmBm,
«• H. CmM aflte fiMtw hMta MBWflh

Mlfe mai right <raM-Mw<d wnmllf,

.MlWblftftMr^MlB^. (191

" And do cnminyU and gCn M> yta bO

power «Dil autlioriiie bj iImm ftmmtm, !•■»•

crpW, ulmitw, and receive ts be BMBMjKi,

pninuqcli^ed, aod t»tde Ac*. a«cb« M W
iraoy •! OUT bondnea «mI ba«d««B>a ia
Uoud, with >ll tmd every Iheir cbildrea aod w
quellf, Iheire goodes, luidei, lenemente*, ud

vadv MMonr ef jMrAWMsiv* ff
. •* WbMMi divM aid Hndrw ffMr

tSB

ilMdIqr*! , _. ^

iifetadaaad MCwduMt ts dinuMdHMdrfe
Mraaaan anTpaaMMiOH withk Mr Mte

«• ba pHuoqnad yfriwidiiiid wd M|ib
-AaamdillHira chJUfMandaavunLky Mf
• r tbmm nMdii>niwprfh
»fcr

aM Mdl iMMJIWW Ma

UeaAiJ«Mliaa«3,«ho

Mada dl AMUNida Am,. I^

fotha „ _ „ ,__

tbe tender lore and ecbIb wkUha vc bora to
SM- aside wuifttlit, aiid br ibe nmw'iU Iruit
•od oonfideace vluelie ira have ia your tf-
fttitd wiaacUMHea Ntd idriiiiai, 4b aawa bmI
■ppoyote giay Ivs aw aemeniwiomTi. ud doby
theae prworHi, far 4W aur baiiea and aMCuaanr,
^Te lull po«er and auctboiritia fo jroa tmo our
■•id catDMHMaaen, lliat ifou, xidwr b/ jotir
warraM ia writiug sidMcnbed vkb jraur Mm
handi a«Ml lealea, or ttktrwite bv cnwimiadaii
dram <n nod iu our oane, under tiieaaale of our
cotute of exehr^utrr, iliall aad aiif AMOnUose
40 y4Hir diMXMioBi oooiyMale and ^fogv^e
any person or peMoiw, fur ui aod ia Mir name,
iaenqiHce4il'BM w my swiiaiHlnieaaBd band-
'WiMieii wui) <Leirt' children and ae^iuUi, «ad
•fall tliMre i^aodea dkaUeH* laada t«nani«Nilci
•nd lierediUaoenta wiiiiiii theaeveriU eouMif*
«fCori.i>iitl Derun ^MnerauU aiid ClaOMste,
mad of wtial valcue Ibe aaaae be «f, ai^ tbat
■uclie iHTnan and pe raooi, ao by yau naowd
and a|ipuinteil to eciuuyre aa aforeaud by fbrix
•or virtue cf any aurke warraalx or ^qauniMiwi
•a aTamaid, aball akhin caDteomd lyme
■tabcor oauH III be madeieturfl (d'cTMy indhe
warraDi and CMuniasian, wiib trw eertifioalea
ia wriliBae undar Hiair bandea and aealM, of
«ll ibeir doinfa euacemii^ tbe pBianiMra «slo

or ngatduBM la all or anj of our MaaMt^

lu|ja- tm^m^tggt^ ^laaaaMiaiL ar ^MAa-

CenwiA, Dint, thmmmtt, aari tatme. m
fm lyyoef jiMwrtiiii^ha MlwawiMt

■ndMKiMaaUBflBN «r aamv**** ■<

be tahan and iceairad to aw «M ArlW «H-

myawnnawd aeftMwcbiaawwit, aadibtlWf

•eaaioaa, and enjoying of all nod ui^nlar Mm
laudea, teaemeols, ber^jiameiili, Madei Ml
chaltella whalsoerer, aa you atta ib^ OB
a^l^ree Ivr tbe lame afler yooi nptaaaW
disvKliaM, asd our fttiiher mill aad |^
lore i«, tbat ibereupoo you our aaid iSifMt
■ionvra shall liave full poirr- — ^* -- — *■-*

) w« fii»U

dedtire unto yui

jriSwaliv

Oialie w»rrau))l uudctyii^
huuitti in ivriiiuge, iq tbe Lord Chauacelw V
Lord Keeper of tliu greal scale of Eo^aad^
the lymB lieyintc, (u pa^te Hnd suOer f be |i«a^
cil under Uie said greale se^iie of Eo^lia^
fucbe and w atmye ^sui4s, aaiiuniyuja^
aurt ec&aiiacluMiieuli lo auy »udie prnai ft
giettau a» ypu aJiall so coMapouixle or apfl
Kilhalit and t» you •ball be iliouf;bl oiru t^.
cuoienieiu, wilb lull poi*er, auciboriuc, ■!.
liberlie lo possesu: Biideojoye all aiwl MCgMf
niUHiprB, i»eMWi;e«, Undes, tfnenMMl^
goiiiet aud cbaUelU *b>l||*-
)r tbe like iu etleclf of wluib
Bod eurraocbec-
iliall be in sucke order sod Catne l|d
ofsuf^ lilie t^ecle »s U bore in llicse iueM|i
couteyneil aoil sett torili. uv els in surue olbp
OTller, manoeri Hid I'orDM; as you (XfriaiilaM-
inisamuen ibiill tbiokneeic aod «WTCU(«t|»
bepawed Uoot ve; thai U Ut kb^'i

" Eti>«baba, Ud Qratia, AflglUe, fa^at,
el Uiberniffi U^iiu, Fidei O^Ananr, ^. «■■
oibua sd <|uos, &£. iSalutem.
" Cum abiiitlio wwoltWMVef fffttwylAcVi
.Tit Onus, (It poaiea ju^ yefilifii^ W"^
aub ju|>.'0 Kerviuilk cDoaUvK, piiiitl ft(f<^^
diraiuci Oea Mc^ialiile, CbfMwui'^m;
riiui oolweiUUioeuiB, cert«a, in FjUwi|irMM
iinredibv* at »iKae«eribuanciipt(^.a«bt4*^

" Sciatit jtfiwr ^ho4 aaa, |Mf«al« moti fpim
et in libaHWe <v>*i)ie >|BmM 4p Owp II<>4*
sfieoioli, ac ex cetta ««^Miii» at mam aaaia ■»
tiis, jiro uobia liEredibua et
IrU A. 11. U. D.^. et aias

gueiBlibet,
beroB facimw el ab onni j|i^ i
vilis cunditionia liberanut* *l /i—,. — „_„
per^eliHwi pw pt«snmh 'V»i »>*#«*, ipM

1373]

The Nigra Caie.

A. O. 1771.

[1374

nec nos oec bcredes nee f accessoreft imstri dcc
aliqnis alios pro nobis sen nomine nostro aK-
quoJ juris seu clamei in praedictis A. I). C. D.
iic. DOC in progeniis aut tequctia suis uec in
progenisL vel sequelii alicajus eorum jam pro-
creatA sive iinposleri^m procreaDd& nec in ca-
tallitf fluis aut eonjin alicujus ad quascOmqua
roundi partes diverterit exiecre clamare sen
Tendicare poterimus nec debemub in f Uturum
aed ab omniactiooe juris et clftmei ind^ siutis
exclusi imperpeiuuin per pm&sebies ac ab otuni
ju^ servitutis eos et eorum quemlibet exotie-
ramus acquietamus et dimittimus pro uobis
borredibus et successoribus nbstris imperpc-
Uiiim.

**^ Damns eliam, et uberiori Gratia nostra spe-
€iali| ac ex certa scieutia et mero motu nostris
pnedictis per prsesentes, pro nobis lisredibus
ct successoribus uostris, concedimus prtefutis
A. B. C. D. &c. et eorum culibet, mesuagia
terras tenementa et ha*.rrditamentA sua qute-
cumque, necnon bona catalla et debita sUa
qoiecumque, tarn raobilia quam immobilia, ac
tarn realcs quam prrsooales, cum euriim perti-
nentiis universis de quibus seisiti sen posses-
iinnati jam existuut, aut eorum aliquis jam
existit.

■* Habendum tenendum et pfaudendum omnia
^t singula mesuaj^ia terras tenementa bona ca-
talla debita et caelera litrreditameota aua cum
uertinentiis oniversis, prferalisi A. B. C J>.
oec. hsercdibus et successoribus Kuis ac execu-
toribus cujuslibct eoruui imperpetuum, secuu-
dom separates fitatus seu interesse in prce-
missts, absque compoto seu aliquo alio proinde
Bobis hseredibus ? cl successoribus nostris quo-
quomodo reddendo solvendo tcI faciendo, ra-
tione servitutis seu servijis conditioais, sire
aliqua legfe statute actu praclamatione con-
•uetttdine seu pnuscriptione, aut aliqua alia re
causa vel materia quacumque, antebac editis
Qrdinatis promul<(atis fatis seu provikts in
fsmlrarium inde uon obstantibus ; Salvistanien
nobis lizredibus et successr*ribu8, tam liberis
t^nuris et hsereditamcniis nuslris omnium cun-
tuniariaruni terrarum et teuementorum, de
quibus illi aut eorum aliquin seisiii existunt et
de nobis tenent, aut eorum aliquis tenet per
COpiassife per copiani curls, et servitiis con-
•uetudinibus redditibus, et aliis casualibus
pnietsdem seu eorum aliqua reddendis &ol?endis
vel faciendis, quam redditibus et servitiis nobis
faDquam capitali domiua; feodi reddendis pro
/Miquiboa terris seu tenementis libera tenurie,
ie quibus ipsi aut eorum aliquis seisiti existunt
▼fti existit.

" £o quod expressa mentio, See.

** In cujus rei, &c.

" Aad so our expresse will and pleasure is,
|hat every auche person, so compoundingeand
^greeioge as is aforesaid, sball aud may have a
f uffieicDt manumyssion, grauute, and enfian-
cbeament for such matters as in forme afore-
•aid, shall be compounded and agreed for be-
fore you cure said commissioners.

*' And our further will and pleasure ii, that
cTtry biU or warrant thai hereafter shall be

mide ibr any such maniimistiton, graimte, and
elkfrtittnchesment, asTOu shall ihinke mete and
convenient to b^ made and ^ssed from us, for
any suche cumifositions and agreements as ia
abovesaid, sball be subscribed by you as above
ia said, and our will and pleasure is, and by
these presents we ilo firraunte, that every such
bill or warrant so to Se made, and so by you
subscribed, shall be a sufficient and immediate
warraunt to the said I^rd Chancellor or I/m!
Kcper of the greate sealo of England for any
tyme beingc, for the making and passage of
every such mannmyssion, graunte, and en-
frauehefiment^ la due order and forme, under
our said griat seale of Etigland, according to
the tenor aud effccte of the said bill or warrant,
without any further warraunt for the same to be
bad or pursued, payinge only for all manner
Of fees St the.Greate Seale twentee six shillings,
eight pence, 'and nnt above, and these our let-
tets signed with our haude shall be to you suf*
firient warrant and discharge in lliis bi halfe at
all times hereafter, being pleased ami content-
ed that you ihall take this our writinge under
our great seale of England nt your owne plea-
sures and willes for the full execution ut the
premises, to the benefit of the persons that sball
receive this mauuinyHsion.

<^ Witness our self at Oorhambury, the third
day of April in the sixteenth yereofour rsigne.

** Per ipsam Reginsm/'

Tlie preceding 1 take to be the Commissioe
intended by lord Karnes in bis * sketches of
the History of Man,* book 1, sk. 5, vol. 1, p.
300, edit, of 1807.

To the Note ending p, 21.

See more concerning the Act for preventing
Wrongous Impritionment, vol. 19, p. 53 ; aad
coiiceruing i\w. Habeas Corpus Act, see soma*
thing iu vol. 18, p. IStiS.

In Dodson's Life of sir Michael Foster,
which I had not seen when the Case of Press-
ing Mariners, vol. 18, p. 1323, was printed, is
the following pasbage :

" I cannot forbear to observe, that in Hihiry
term, SO Geo. 3, 1757, a difference of opinioa
appeared in the court of King's bench on a
very constitutional point ; 1 mean in respect te
the writ of (lalieas Corpus. This affair ox cited
great attention a considerable time, and in con*
sequence of it a bill was brought into the House
of Commons for giving a more speedy remedy
to the subject upon the writ of Habeas Corpus ;
but sir James Burrow in his Reports is totally
silent in regard to this business.

** As we have not, to my knowledge, any
gooti account of this important affair in print, I
will give the best account which I can extract
from Mr. Justice Foster's notes and papers. It
appears by bis note book, that in that term mo-
tions were made to the Court for several writs
of Habeas Corptu in favour of men impressed
for soldiers iiyiae; the sUtuts S9 Geo. 9, c. 4|

1375)

12 G£ORGE III.

Addenda to this Volume.

u|ioa affida? it« intended to shew the men not
to lie within the description oi* the statute; that
the Court, instead of granting the writs, made
rules for shewing cause why the writs should
Dot pro, for notice to he given to the solicitor of
the Treasury, and for the keeper of the Savoy
not to suffer them to be removed in the mean
time ; and that aflemards in the same^term the
ineu were discharged by the Court with the
consent of Mr. Jolicitor- General Yorke. These
cases are severally entitled the King asfainst
Jlaywaid ; and in them Mr. Justice Foster
expressed his sentiments concerning the writ
of Habeas Corpus, and in particular declared
it to be his opinion, that the return to the writ
is not in all cases conclusive to the Court or to
the parlies, but that men, wrongfully impressed
into the public service by sea or land, are by
law entitled to, and ougnt to have, an easier
and 8pee<lier remedy than an action for a false
return, w hich may afford to them not the least
relief. Among his papers I find iu his own
hand-writin(f a copy of a letter which he wrote
to Mr. *Solicitor-General Yorke ; the date of
which he hath neglected to preserve in his
copy, but from internal marks it ivas manifestly
written in the former part of the year 1758 :

««Sir;

*' The practice of granting writs of Habeas
Corpus in the vacation in cases not within the
Habeas Corpus act having long prevailed, I
confess that I did not entertain any sort of
doubt touching the legality of it ; though pos-
sibly there might have been some room ior a
doubt, if the passajre in lord Hale (2 Hale, 145)
which you mentioueil, and that in 2 Inst. 53,
had been considered independently of the prac-
tice. But as I always considered the case of a
barely wrongful detention as not within the
Habeas Corpus act, but merely at common
1a\«-, I tlr>t]i:;lit a legal sound discretion out;tit
to l»c used, aiul generally expected an :iflidavit,
on behalf of the party ap|)lyiug for tlic writ,
setting forth some probable ground for relief
upon the merits of liis case. This mctlioJ I
constantly observed in tlic case of men pressed
into tiie servire : and that t'.ie public service
miirht not suffer by an ab^^se of tlic writ, f
oideriMl notice to be t(iven to the proper ofiicers
of the crown, of the time at which the party
was to he hrouirlit before me, with copjtsonhe
alhda^its. In iliisuay siveral weredi><chargeJ:
and I niUHt say, tiiat in some instafices 1 saw
80 much oppression on the part of those con-
cerned in that service, that I am satisfied the
subject oiii^ht tu have some better relief than
what the pn-bbins: acts have provided.

<< About tlio latter end of 31ichaelmas-vaca-
tion-was-iwclve-niuntl), applications for the
writ coming V* ry thick upon me, I began to
see the difficulty of steering properly between
the liberty of the subject and the necessities of
the public ; and accordingly desired the advice
and assistance of the other judges of the court.
We met at my chambers a low days before
Ijiiary tcriDi wheu 1 found that the doubt

[ISiO

which f have mentiooed bmd operated strong v.
This determined uoe, the term being at huKi,
to proceed no farther than the f1i«chargiDg of
one or two upon recotrnizance for their appcir-
ance in the term. What pacscil iu court opot
motions for the writ is well known.

** I sent to you the other day the cnpy of
the return in the case of thft Queen and Cban-
berlain. When you shall have got it traa-
scribed, tou will return it to me. 1 have ao
note of that case, nor of any otliers retatiof to
this matter, in the late queeu^s time, though 1
attended Westminster- hall a little more thao
five years before her death; There was do act
for pressing in the last reign ; and I thiok,
that all the acts of that kind in the prcKBt
have been made since I was on the beach.
From the few notes which I hare relating to
that matter I find, that the Court batb not
granted the writ as of course, and within the
Ilabeaa Corpus act, but bath required affidiriii
on behalf of the party apply ing* for it, srttii;
forth the merits of his case : and, on the oibff
hand, though proper returns in |K>int of form
may have ^en made, the Court hath nutgifea
entire cre<Iit to them, and put the party com-
plaining to his remedy by action fur a filse it-
turn ; hot hath constantly entered into the
merits of the case upon atndavits, and either
discharged or remanded the party, as the ok
hath appeared.

" This was done in Trinity term, in the IPOi
or 20lh of the king, in the case of one Rev-
nolds* ; and iu Easter term, in the ^ 9th of the

* *' After writing this letter the authnrdrev
up a fuller account of this case^ which I wiK
here give :

** The King against WurrE.

" Saturday next after the octave of tbc Hi>l,v
Tiinity, in ilie 19th year of king Geori;*- :, »
writ to major Thomas While in the Tower »f
T^ofidon or his deputy, for Thomas Uc^na!-.
5l.ijor White, by the name of Uichard Wii i^
(for his Chr'stian name was tnistaken in ih*
vvrilj returns, *' That Reynolds was conrni'tt.!
10 his custo;!y, as a person impi-ose:! arci>r.lir,*
to the act (IU (iP> 2, c. 10.) then Lidy mu^'
for recrullinuf his m'lje^t^ *s laud r.>rrti anJ
marines, wliich is the cause of lii< dettnli'^c:
and he brings his bndy into covut." Ti:e rf-
turn si'Cnis to be snffiLic:;l in point of f«irni.

*' M'j:.djy n^xlaiier ihrtM* weths ^rihe \Wf
Trinity, in ihe 19t!i year of the k'j^. Reveal*
bf^in:; bro'-nrlit ii.i j c -nrt id the custody of B>
ciiard Wiiite, it is ordered hy conscut'of ro'ia-
sel on bmh sidis, thai the name Thomas Wi.;ie
mention ft! in the writ be made Uichnrd \V:i:*f:
and it is t'.rthcr ordered, that the sf.\'\ MritaoJ
return be liied, and that the said White brin;;
into court the said Reynolds on \Vo<!ne<Uir
next. Ani! upon reading the several atfi!"'!*
of Thomas Kell, !s:c. Sec. it is farther r.rJer<di
thut Thomas IJi-dwell, dci*. &c. — (the t^iDflu*-
siontrs for putiinjr the act in exrculinn, »hp
acted iu the affair}— shew cause to-morrv'j

1S77J

Tht Negro Casei

A. D. 1771*

C13?8

kinnf, in the cate of one Hamilton ; and in the
Ibllowinsr term, in the case of one Worald, — all
preased men ; and of one M*Nown a supposed
deserter, but in truth an out- pensioner of Chel-
sea ; and in a few other cases, of which I find
no notes. In some of these cases the parties
compUiniog^ were discharged in court; in
others they entered into recoj^nizances, with
the consent of the counsel for the crown, to
Appear the next term, and were then discharg-
ed, the king's counsel either consenting or not
opposing.

** If what I have written will either give you
light into the matters about which you en-
quired, when f had the favour of a visit from
20U, or afford you any amusement, you are
evtify welcome to it. I am, &c. M. F."

*' Excuse some rasuras and after-thoughts;
for transcribing a long letter, with thick ink,
aoft pen, and hard paper, is riding twice over a
deep road upon a lame horse."

** On the 9th of May, 1758, the House of

why the said Reynolds should not be discharged
out of the custody of the said Richard White.
The affidavits above-mentioned were in behalf
of Reynolds, in oriler to shew, that he was not
o person within the description of the act, and
that llie impressing of him was a wicked
scheme of one Robinson, and founded in ma-
lice.

** Wednesday next aAer three weeks of the
Holy Trinity, in the 19th .year of the king,
Reynolds being brought into court by major
White, gives hiti own recognizance in the sum
of 100/. for his appearance in court the first
day of next term, to answer to such things as
•halt be objected against him ; and thereupon
it ia ordered, that he be discharged out of the
euBtody of m^or White. On shewing cause,
the al»Bve-mentioRe<l affidavits were read ou
the part of Reynolds ; and on the part of the
oominissioners, their own affidavit, and the
affidavita of Robinson and some others, were
read in support of what the commissioners had
done in the affjir ; and the Court, upon consi^
deration of the affidavits on either side, made
the laat rale : and upon the first day of the
next term Reynolds appeared, and his recogni*
aaoce was discharged, no opposition being then
■lade on the part of the crown or of the com-
miasioners.

** I was favoured by my brother Bathurst
with copies of the rules, writ, and return, and
of the affidavits filed in the office.

** 1 have an imfierfect note of this case.
Affidavits were read on both sides: and the
Goari aaid, that although it ia not usual to
CfDter into the truth of facts set forth in the re-
tom to a Habeas Corpus, yet in this case, at
the party suing the writ hath no other remedy,
it may be dooe : and that if Reynolds is not
within the desoription of the act, the com mis-
oioocra have no sort of jurisdiction over him :
the whole proceeding ia a mere nullity, aa
^ormm mm judic$,^^

VOL. XX.

Lords, on the second reading of the bill from
the Commons, entitled, An Act for giving a
more speedy remedy to the subject upon the
writ of Habeas Corpus, ordered the judges to
attend the House, to deliver their opinions
seriatim^ with their reasons, upon ten questions,
which may be seen in the Journal of the House
of Lords of that day. On the 2Jth« 'iGih, and
29ih days of May, many of the judges delivered
their 0|tioions on the queHtions proposed to
them by the Lords ; and on the 2<l ot' June,
after lou^r debate, the bill was rejecteii by the
Lords, who then ordered the judges to prepare
a bill to extend the power of granting writs of
Habeas Corpus ad 8ui»jicien(ium in vacation*
time, in cases not within the statute 31 Car. 9,
c. 2, to ail the judges of his majesty's courts at
Westminster, and to provide for the issuing at
process in vacation-time to compel obedience
to such writs ; and in preparing such bill to
take into consideration, whether in any and
what cases it may be proper to make provision^
that the truth of the facts contained in the re-
turn to a writ of Habeas Corpus may be con<«
troverted by affidavits or traverse, and, so far aa
it should appear to be proper, to itiseri clauses
for that purpose, and to lay such bill before the
House iu the beginning of the next session of
parliament.*

" Alwut this time, May 15, 1758, lady Foster
died after a long illness ; and by this event Mr*
Justice Foster was prevented from attending
the House. However, ou the 24th of that
month, he wrote to chief baron Parker an ex-
cellent letter, of which he liath preserved a
copy in his own-handwriting:

" My Lord ; Mny 24, 1758.

*< When we met nt lord chief justice Willes'a
houKC, 1 had the satisfaction to tiud, that you
and I do not differ in opinion upon any of the
questions proposed to us ly their lordships, ex-
cept the tenth. Upon that f|uestion, which
your lordship sees is proposed m the strongest
and most striking terms,f we did then seem to
differ.

* "See the Lords* Journals, 29, p. 312*
322. 331. 337^311. 344—347. 319. 352*
353.

t ** That question is in the following words t
'* Whether in all cases whatsoever the jud^ea
arc so bound by the facts set forth in the re-
turn to the writ of Habeas (;orpiis, that they
cannot discharge the person brought up before
them, although it should appear most inani*
festly to the judges, by the clearest anil most
undoubted proof, that such return is false iu
fact, and that the person so brought up is re*
strained of his liberty by the most un warrant*
ble means, and in direct violation of law and
justice?"

" Mr. Justice Foster liath written in the mnf
gin ; '' God forbid that thev should." But
how is this question answered by some of the
judges ? Chief- baron Parker*s answer i^ thus t
** That ID no caaes whatsoever the judges are

iT

ai9} ItGEOROBIIL

flagfMwUhTOvrloMiabip in thelratlitC
'th« MmnI docUM, UmI a retm to a writ of
'floMo Coqmo » eoodoMf o in point of Act

n koond li¥ tiM botf Ml Ibrth in tlioiotnrnto
tiM writ of HalieM Corpos, ihottko/ cuuMt
dteelMige tbo ponon fmraglit np More tlitiB,
VittlKKild oppoormoilnioniiMV totlM jodra,
l^tlie clearatt and inoit andooMod proofy tnat
otooii rctutn it Mm in fiici, ond tbot the peioon
'•0 broogbt op it rottroined of bio libort j oj tbo
aifttt anirmmotoble iBcana» ond in dneet mb-
lioooriowondjdtlicoi bntbr tiioolotretlond
flMtt nndoobtedf proof bo unMOtondt tbo for-
diot of o jury, or jod^eot on donarrer or
otbeniiM, in on ootion m a (khe rotnm ; ond
in MM Ibo laett retnmod to n writ of fiobMt
Corput tbew o ta6kiont ground in pobt of
kw for Micb rettminty lio b of opinion, tbat tlie
conrt or judge, before wbom tocb writ it re-
tnmablo, Monot try tbo faett eontoined in tocb
]htnm by offidofitt.*' lo notriy tlio mow
^■itnner tbo qocttion b ontwercd by Mr. Jot-
tiMDenitoo, Mr. Baton StBytbo, Hr. Baron
'Adamt, and Mr. JuiiiM Wilmol. If tbo opi-
vioB of tlwM jodget bo ogrNoMo to bw. tbo
Igreatctt ii^nry, m If r. Jottieo Footer oboerfet,
.My bo done to a man witboot n powbiTUy of
leimat. GoMtwainli caM, whieh b reported
in « Bbokttooo'a Repoctt. 190r— 1311, ond
whieb come belbre tbo oonrt of Common Pleot,
fl>o Grty» Godd, Blaekttooo, and Narot,)
Fueb. aOd Trio. 18 Gm. 3, irtB. now do-
•ervM tbo grealetl attention. Ho wm illc-
|niUy preated into tbooM-terfico, ond Mr. Jnt-
fieo GouM tan;—'* I do not conoei?e, tbat
•ilber tbe oonrt or tbo porty ai^ condnded by
Ibo rotnm of a HabcM Corpat» bat bo may
plead to it any tpecbl matter necesMry to re-
gain his liberty. St. John's case, 5 Kep, 71,
wts a case or this Innd. One Gardeoer was
eoDvicted and imprisoned for carrying a baod-
guD, and this cause being returned on Habeas
Corpus, he pleaded to it, that he wm a sheriflf's
officer, and as such entitled to carry a band*
gun ; which plea being confessed, he was dis-
cliarged. 1 1 is said in the Queen and Bumsby ,
Ld. Kym. 900. Salk. 181, tbat the record of
St. John's case cannot be found ; owing per-
haps to a roistalce of the year, which is in Colce
84 Eliz. whereM in Cro. Eliz. 821, it is re-
|K>rted under the name of Gardener's csm in
48 Eliz. and there is a cop^ of the record in
Treroaioe 854, which b mhI to be P. 48 Eliz.
rot. 49." Tbe learned reporter adda, — **Tbo
Court declared they conid not wilfully abut
llieir n^es against such fiicts u appeared on
Ibe affidavits, but which were not notictd on
Ihe return. They were inclined to thiplc it
Ibeir duty immediately to discharge the party,
and should therefore ra some measure do it ;
but still with a reserve to any question of law,
which tbo- Admiralty meant Wiously to argue.
They therefore discharged Goldswain on bb
Own recogniiaoM of 90/. to appear in court
Ibe oeoond day of tbe next, being Trinity, term }

aid in Ibe won luno rooonrntndtd it to tbe

4Mmi» te Hw foliime. fttl

IloanoolbolivfOfpoi*; tfMOnartilbaMdV

iL and Ibe tejmed pnrfcy in flijvcB m Man '
Too, 1 ndaui, b llio gePMiyi nJe; btfi
Ibm ft b not mrfi

ri whioh aie eiMptbdn m bi naJ
Ml, u yonr bidabip orett fcaooi
bot ratbcr oatabOtb, n geueinl «§!•« TMmm
of peraont pramtd into liw ^niiicn ai^ I dih
eeife» one of tbem, for tbb plnfai toMtn, Ihsti
llie parly cannot contrwictt iIm imbtf Ai
Ada ttl Ibrtb in Ibe leliUB. fan b
witboul remedy. An inadeqonM^
reme^ b noTMody ; bb

to n diftiwnbg oMn, whieh

or'wiUnotbeorhb weighl. Itb
of baobko to tbe cbildmi of Mie*OfaMly,«bii
tlMyaiebying for brand. lacoMnaanoM^
in OTtfT caM wbere Hie geoeral rab b hM
down, die ininffd pertj «iHt wait Ml »
lience till be ean fobirf Ihe relam innpnfir
aetion.- Tbityilwotlbe eoaft!MiJ,bapiit
aaitfortnne ; bot, till tbe dny oTino diKiuai
oomet, he oantinnM al hooan ~ ~
tbe bw, and under ita pnolnc

bnowa, b not the conn of

into tbe aarme by bad ornei, flHa»

bin to beneoigeei of tbe bv. BTt

~ *^^^^*^V**^ AuMhdbbilii

8iifoy,'orabonrdatonder| udifbbibdl
happen to bate lime oanngb to praoMeal^
boMCorpot, a toficbttlictara toihe wiib

Biy madf, (Iheienrtt praoniaiiim^d
wnoCoe,an< Ihcy uw mob eiM
4uid tbe man b aeni nny, ui dae ftmorna^
to take bb ohmwe, for name ecHn paAM
amidtt Ibe perib of the nan, mnI iheSmM
of war. Bnlilbaaid, IhnthaMMiwiM
a remedy. What remedy f An nctbnifiHd
a man perhaps not worth a groat. But bo
responsible soever tlio officer may be, whati^
tisractbn in damagM b equal to the iqan-
or, if tbat were poaaible to be had, what a*
comea of tbe action, if the plaintiff abooM h
knoclced on tbe hMd in tbe oerriee ? Wbr
trolv, moritur cum perumA. lo abort, be bdk
in this view of tbe case, no remedy, unless ja
Snre him what I call tbe apecine remoif»i
right to controvert tbe tmlh of the retmb
fore it is too bte.

•< In the COM of tbe Riog^ and fVbito, vbA
was mentioned at our last aaeeliag, tbo Cail

connael for the Admirallj to oooaider,
they would amend their relnna : in dcfaal^
which tbe Court would eooaider wbethai
quMh it for insufficiency, or admil Culdisdi
to plead to it according to the precedent ^
by Gould, justice ; or to lake it up in a aii
aumniary way, by taking pro coM/ct«» tbe ^
ters stated in tbe original offidavito. Ami ^ '
00 the second day of tbb term, being tbetf^
of June, Goldswain appeared on bb iMp
sance, and was finally dbcharged, by oitf^
of Dary , counsel for the board af Adawaip*
♦ "See Gokbwaia'n €ane» abed ia tepj
eedingnote.

19BQ

The Hegro Cate.

A. D. 1771.

[138S

considered the matter in tbie light, and in the
«nd the man was discharged upon reading affi-
ilaTits on both sides. The like hath since been
•^one in other cases of like nature. It matters
not with me, what method the Coort took to
come at the merits of the question in point of
fact. The principle which they went upon is
what I rely on : and the principle, as I take it,
was, that though in common cases the return
is conclusive in point of fact, ^et these special
cases, as they come not within the general
reason of the law, are not within the general
mle. The parties are without remedy, if they
mre not to controvert the truth of the return
in a summary way ; and therefore they shall
doit.

" You may be surprised to receive so long a
letter from me at this time ; but, to confess a
serious truth, while I am thinking of these in-
different matters, I feel that my mind is em-
]»ioyed upon something which doth nut give
ine pain. 1 am, &c. M. F."

«<To this letter the Chief Baron, May sr,
1758, returned the following answer :

" Good Brother ;

*< I am favoured with your letter, and am
Tery aorry for your late ^^reat loss. As yon
•spree to the general principle, that the return
of a Habeas Corpus cannot be contradicted in
Ant proceeding, so I must confess, that your
leaaons are very strong to shew the present to
be an inadequate remedy; but I am afraid,
that the parliament only can apply a quicker
•od more effectual remedy. As to the case of
the King and White, and several subsequent
cases, I entirely approve them, t>ut consider
them as collateral proceedings, founded on the
general power of the court of King's-bench, to
correct toe acts or misdemeanours of all infe>
ftor jurisdictions to the oppression of the sub-
ject. We have gone as far in delivering our
cpioions as my brother Smytbe^ and are to
proceed on Tuesday, so that it must be left to
your own discretion, whether you will give
yoQT opinion or not ; but if you should not
dioose to appear, I have taken care that my
lord-keeper shall excuse your absence to the
liords.

** I am, with true respect, Sir, your most
cUiged brother, and obedient servant,

*• T. Parker."

" Bedford-row, May 87, 1758."

** While this business was depending in the
Bouse of Commons, Mr. Justice WHmot wrote
to Mr. Justice Foster the following letter:

« Ormond'itrut^ April 9, 1758.
'« Dear Brother ;

V I herewith send you a State and some Res-
gaaa, which lord Mannfield and I have put
aa^cCber, to explain and support the Court's
proceedings upon the present act.

** We desire that you will be so good, as
fDOO aa possible, to took them over, and to cor-
net tbem as you think proper, and to add
0m9k other reasons as oecur to you in rapport

of what we were all of opinion to do ; and I
own, that I am still strongly of the same opi-
nion. If yon should think, that, auppoaiogthe
construction of the act wrong, yet what we did
was right, that may properly be added, and ia
an ariorument d fortiori,

'*You recollect that this happened hut just
before Hilary term. The pariiament was sit-
ting, and in the new bill might have laid dowa
what rule they pleased before the vacation.

** I am, dear brother, your most faithful
friend, and most obliged humble servant,

•• Eardlby Wilmot."

'' Mr. Justice Foster the next day returned
an answer to Mr. Justice Wilmot, which, as I
am informed by his son, John Wilmot, es^.
one of the masters of the court of Chancery, la
not found among his papers. I give it from a
copy In my poasession in the author's band*
writing:

« Dear Brother ; AprU 10, 1758.

" Lord Mansfield did me the favour of a visit
on Saturday, and told me of the paper which I
received from you yesterday, and now return.
He told me, that it was intended as a justifica-
tion of the rule which we made in Hilary-
term-was-twelve- month : but in what roanuer
it is to be made use of, I know not.

" It will undoubtedly be a full justification of
that measure, if it be known, that even a ma-
jority of the judges have put the construction
on the act which you contend for. They, if
they are well founded, need no better justifica-
tion ; and the juds^e who differed desires no
better than to say, that he came into the mea-
sure, as the only expedient, which, all things
considered, offered to let the subject into a
proper defence against the abuse of the powera
given by the act.

'* 1 have made some marks with my pencil
on your paper, which I will now explain.

*' P. 1.* The first cou«ideration was, whe-
ther a writ of Habeas Corpus might issue ia
the vacation in cases not within the Hubeas
Corpus act, and the passages in Coke and Hale
were mentioned : but that matter, upon farilier
enquiry, is now put out of doubt. J indeed^
out of pure deference to what I took to be the
opinion of tlie majority, have decliued graniiog
the writ in the vacation, but sorely a>(ainst my
own juilgroent 1 am informeil, that write
have issued in the vacation since tJiat tune.

•» P. 8.*t4. p. 3.* p. 8.* In these places,
and perhaps io some others, which I hsve not
marked, you speak of the judi^es in general ;
you khould confine yourself to the major part,
which, I suppose, ia ilie case.

** P. 8.f Here all the judges concurred.

*' P. 9.* The words struck out should be
inserted : and you will be pleased to consider,
whether this rule, and that wbicli we grounded
ii|ioo it, do not go on a supposition, thst the
adjudication of the commissioners is not final to
all intents and purpoKes. With regard to those
who are the real objecu of the law it is final :
and with regard to the persona to whoat cui»

■jm

WCEOBCE ni.

Jiflmi>t>liUliUmt—

te disp^iHd of, and libewlie lo ibe offi-
'•m wh> receive Ihem anil treat llietn as sol-
'Ikkia atf i»te<l, it ii a full ioiluiDnily for nhat
ttm Ai uiiil«r the Biiilioriiy of ihe coromis-
'■Mfti. Ttiii roadruclioo tbe act will Lear,
nd tba Utong wutJint; of il, wdkh you ha'c
^■fv properly iiuloIfiI nut, platnly It^ads to il,
)Mn, 1 tliink lua, ii sufficiently satisfied by il :
tin thut tliu BiljiHlicition or ibe cooiniJtmiier*
aboald, he cunuliisiTe to ibe parliei, whetber
8lgw4» iif lbs law or doi, I can oeter sdmil.
T9B arglue from tbe inleDliun of tlie act. I
Umit M'ktKr rale of MUtraetion liiaii at-

tMilliiin itiTwIrr-' '-Ji

.■MtMti to try
ipk. WMil

lfc»iMmtiM af lh« ligMlMant M

aiMJOMM ■*! MOr ifciir fi^nar If ^fi als-bevM
«r m Uf en ; to oeud liie belt inon mmmm m
lj|od P^ powdtr lo North 4moiie«.r 1>io» 1 «b
■Ibt^' «■> MM their iolMlioB ; and jot, if Ott
Mudicatioo orthoooaniMiofMnbe oopdnoin
ft Ibe partf , and a pr^r reiBrn bo Bade to
tltf writ, thn ma« be the cowquenee.

"F. 0.* I do not rteollcol tl)ia oieniB-
•laiMo. I did UN tnfficieniljr aUcad to all
irhich iwewd Ibet daj.

. •' 1 hue apokcD mjt mind ftedy to joi. I
■a», TOO kop*. epitteii to tbo faaia cKot
^nore iBaa once od tlio bench ; and I boTe eecn
V* rcaaoA to ajtor n^ epintoa. I hope that J
db.iiH ha*e. bo eecaeioD to mj uj thing nior*
M dio aolnoct n pnUic : Tor at a time when
Um world i« fall wf jealoROT, tpi rooDtoB mad
•Aer popnliriljr, one wmtw sot wiah to lea
Mtge« dif'uM 00 poiiiti, when the liberl* o
Die niigect » 10 nearlj GoueorMd. I am. &&

M. F."

" Whether, Ibe paper mentioDed id theie let-
ten be now in existence or not, I am unable lo

^y. On a view of tbe facta aad reuoDa bere
bmughl tngrther, it ii natural to with, that the
Ull, wliich llie jiiilgrailrew* with great care

• " It ia in the following wordi : " Whereaa
4>e writ of Habeas Cnrpua ad Suhjiciendum
bath bern found by ex|>erieDce to be the moot
cxpeditioua aud elfectuil method of reatoring
any jieraoD lo his liberty who bath been un-
juatly deprired thereof; eod wbereu eiteadiug
Ibe rfioedy of inch writ, and enfureing nbedi-
ence Ihereunio, and preventing delays in tbe
cxeculinn Ibereoliaad ascertaiDing the proceed-
inga Ihervupun, will be greally beneficial to the
alibjecl : Be it therefore enacted by Ibe lung'i
mim exi'ellent tn^eaty, by and nitn Ihe advice
and cnnaent of tbe Lorda spiritual and temporal
and Curnmnni, in this present parliament as-
aemblfd, and by tbe authority of the aame,
l^at where any pennn ehall be confined or re-
B{raineil uf hia or brr liberty, otherwise than foi

2 me ciiruiiial or aiipposed crimiuat matter, il
all and may be lawful for Ihe lonl cbancelior,
hyd ktega, iwif cummiKiooen of tlu gnai

r} RrjUtwufc tr. Jm^ EkA-

eairataad* if __

affirmadnGii oaea whmt'kj lur tm aUta^
lion is iillqvad) that dura ia ■ pabiyi ad
eaaaadla fnMtod br sock coMpbHt, to aaal
a facaliH^tima a-writaT Habaaa CatfMil
bibjicindnm, aadw lh« aaal af aaah Md
rhc^.etfboshaH tken.haaMa( -' '" '

custody oe pows tbo |Ht* ao e.
Mraiiied sbaD be, KWrlaatto immttiwt) hMO
the iiersbo so awarfiag tba aaaoaJta hafaqp'M
other jodK* if ibe «M*t wB^ei *• tod rf
which iho-said writiaaaeC

- Iiiilliii ilfsill iiliidbj Ibiwrtwg

aforesaid, that iribof""' " '-

,tbatirihopaaea«
oTHahMfCwpMi

pnrsuancaof ihiiacLiniaanfilaaafiiAw^
eiiher bj tba actual datiwy lliaiarf to U^
her. or tbein, or bj banaa iba mmm at Ii
wbmi Ibe party ab^lM — Baed «'»

.toed with aa*

irasaataribtii

trilluIlyiicgleatorrafBaa to a
pay obedienoa ibareto, be or aha dbalbe^^
td ifniltj of a wataautof tba OMpM ^atoia
seal wberoefsiMbwttaballianai uditMi
anit ma* ba kwM to aad lor tba ^dM
chancellor, lord keeper, lord caauuiaMoaer. ji^
tice,i)r baron, before whom aoch wHl shaBta
rviurnibte. upon proof made of ancb aeriict,
tu award io the vacation-time praoeaa of ^
icmpt under tbe aeal of sitcb court a^caiatfiti
\-trsiiii at perwina Kuiliy of attch ooDtempt,»
iiiniiitile before himseu' in the TacalMA-ui%
ivli'> shall proceed ibereoa aa ta law aad juMBI
lihull appertain.

" I'rovided, that if sncb writ shall be awvd-
ed so lale in the vacation hj any ona of tki
haiil Jiislicesor barens, that in hiaopiomial^
ilifiicc thereto cannot be Giinieoieally paid A»
iiii.'' sMch vacation, tba aania shall anil Bsysl
hij (lisorelioD be made returnable in hia ■»■
jpE^tv's court of Kiog's-bench at a day eenaia
in ilip next term : and tbe aajd court ahaJI mt

lanoer as if such writ bad bacn otifiadlf
awarded by tbeaaiil court.

" Provided also, that if auob writ shall b
an arded by Ihe court of KiD«'s-beDcb is IsA
Ijul so late, that in the judgiiHut oT tba Mi'
conn obedience tlieristo cannot ba caavesindf
paid during aoch term, iba aame aball aad M^
at tbe discretion of tbe aaidcauii, ha Madi i^
tuciitiU«4a,iiiV (KftaiB i& tti« IhinMrt »

1385]

TkeN^TQCaae.

IIm remedy it amt ooMipfelte for rem^t inc^ the
injnry of uojiMt and illegal ceofiocaieDi," yet
it is manliest from the ubservatioss of Mr.
Jttsike FoOer, and from the bill Urawo by tbe

calioo before any judge of the same court, who
shall and may proceed thereupon, in such man-
ner as by this act is directed oonoemiog writs
issuing in and made returnable during Uie f a-
catioo.

** And be it farther enacted by the aothority
ftfiiresaid, that in all caaea provided for by this
act, although tbe return to any writ of Habeas
Corpus shall be good and suflbcient in law, the
•aid lard cbancellur, lord keeper, lord commts-
•iooer, justice, or baron, before whom such
writ shall be returnable, shall, as soon as con-
veniently may be, proceed to examine into the
truth of the nets set fortti in such return, and
iato the cause of such coofinement or restraint,
by affidavit, or by affirmation (in cases where
ma affirmation is allowed by law) and shall do
Ihereia as to justice shall appertain. And if
Mich writ shall be returned before any one of
tbe said justices or barons, and it shall appear
doubtful to him on such examination, whether
the material Tacts set forth in the laid return,
or any of them, be true or not, in such case it
■hall and may he lawful for such justice or
bason to let to bail the said person so conBned
•r restrained, uinm his or her entering into a
recogniiance with one or more aureties, or in
case of iufancy or coverture upon security by
iBCOgnisaoce in a reasonable sum, to appear in
Ibe court of King's-liencb, upon a day certain
io the term follouing, and so from day to day
•a the court shall require, and to abide socii
order as the court shall make in and concern-
ipg the premint^ ; and such justice or baron
•ball transmit into the same court the said writ
and rHuru, together with tlit* said recognizance,
affidavits, and affirmations ; and thereupon the
•aid court shall proceed, order, and determine,
touching tbe discharging, bailing, or remand-
mg the |»arty, as to justice shall appertain,
^itlier in a suwiuary way by affidavit or affir-
■MitioB, or by dincting one or more issues for
the tridil of the facts set forth io such return,
or aov of them, whereupon such proceedings
diall ue had as in other cases of issues directed
by that court.

** And be it farther enacted by the authority
aforesaid, that the like proceeding shall be had
ip tbe same court for controverting the truth
of tho return to all writs of Habeas Corpus
awarded for or on behalt' of any person confined
or restrained of bis or her liberty, otherwise
tban for some criminal or suppcMed criminal
matter, by affidavit, affirmation, or otherwise,
although such writ shall be awarded by the
Mldicoart, or be returnable therein.

^ And be it farther enacted by the authority
•fcmaid, that it sbail sod nsy be lawful for

A. D. 1771. [IS85

jodges, that this assertion is not well founded,
and that farther relief in some cases is desirable*
These letters, and tjie answers of Mr. Justice
Deoison and Mr. Justice Wilmot to the tenth
quest iun proposed by the House of liords to the
judges, with the other evidence above-adduced,
seem to prove, eontriry to the assertioos ia ^
Burrow, S396 and 3588, that on thia occasioa
there was a final diflerence of opiniou ia tha
court of Kiog's-bencb."

the court or judge proceeding on any writ of
Habeas Corpus ad Subjiciendum awarded in
casfs of confinement, not fur a criminal or sup*
posed criminal matter, to make such order in
regard to the payment of the charges and ez*
pences of bringing up the party so confined or
restrained, and for carrying him or her back to
bia or her place of coufiuemeut in case of ro-
manding, as to such court or judge shall upoo
examination thereof seem meet ; and tor noa-
payment thereof to award process of contempt,
whereupon such proceedings shall be bad as io
other cases of contempt for non-payment of
costs.

*< And be it declared and enacted by the so*
thority aforesaid, that an Habeas Corpus, ao*
cording to the true intent and meaning of this
act, may be directed and run inUy any county
palatine, tbe cinque ports, or any other privi-
leged places within that part of Great Britain
called England, dominiou of Wales, and town
of Berwick-upon-Tweed, and the isles of Jer*
sey, Guernsey, and Man ; and also into any
port, harbour, road, creek, or bay, upon the
coast of England or Wales, although tbe same
should lie out of the body of any county, any
law or usage to the contrary iu any wise not-
withstanding.

" Provided always, that nothing in this act
contained shall extend to discharge out of pri-
son any person charged io debt or other action,
or with process in any civil suit.

** And be it farther enacted by tbe authority
aforesaid, that the several provisions made by
this act touching the making writs of Habeas
Corpus issuing in time of vacation returnable
in the court of KJngVbench, or for making
such writs awarded in term-time returnable ia
the vacation, as the cases may respectively
happen ; and also for awarding process of con*-
temptin the time of vacation against the per*-
son or persiuis neglecting or refusing to naako
return of such writs, or to pay obedience tbere-^
to, ahall extend- to alt write of Habeas Corpus
awarded in pursuance of a certain act pssseil
in the dlst year of king Charles the seoood,
intituled. An Act for tbe better securing the
liberty of the subject, and for preventioo of im-
prisonment beyond the sess ; in as ample and
oenefleial a manner as if such writs and the
said cases arising thereon hsd been hereia be>
fore specially Duoed and profided for*'*^

l3St}

14 GEORGE m.

Addenda-^Tke Grttutda Cote.

[13EB

Case of the Islasd of Grbvada,
pp. 239, et ieq.

EdwHdi (Hist, of the Wert IdiUm, book 3,
'cbap. 1} g>'e> ID hiatnricti aocouot ot' lbs dul*
of iMir lud one lisif in Ihe huodred wbica
gave riie to IhU cue : and be obterrea that the
olauie in the Act of Auembl^ of Barbadora,
(lee p. 851) wliich exemitla the Uodt called
tbe tea Ihuuwnd acres, and alao that which ati-
yulatea Tor the buitdin|f a (ession boose and a
priaon, aod providing for alt otbsr public
cbar^ei iacumbeat on tbe goTerDmeiit out of
the iQoaey to be raised by tbe act, have been
equally diaregarJed by the crown. Tbe for-
mer of (hose clauses i« not aet forth in the re-
port orCaropbellir. Hall. Edward* exbibiti it
M follow*:

" Provided oeTertfaple**, that neither Ibii
act, oor any thing therein Gonlained, aball ex-
tend or be conArued (a bar hie rnnjesty, ur hi*
■aid excellency, from hi* or their right to any
land granted, or any incroaclimenis made U|ion
the aea, since the year one thousand sik hun-
dred and ftfiy, or to any land* connnonly called
or known by the name of ihc ten thousand
acres, the merchants land, granted by the late
earl of Carlisle, or bi« father, untoHarmaduke
Hawiten, esq. William Perkins, Alexander
Bannister, fiJmuad Fnrster, captain Wheattey,
aad others Ibeir associates, on certain cotc-
Danta and conditiuiis : PniTJdeit alto, that the
gruwth end pruluce of the aaiil landa, men-
lioued in the preceding proriso, be mil liable to
■ny tax, impost, or cnslnm, iini>OBcd by tbji
act, any lliins: in the «ame lecniln^ to tbe con-
trary notivjiliatandjiig."

In the House of Commons oti Monday,
March lath, 1701-2, (eifhi days after the had'escaped'

tbe wiodwan] of Jamaica, iroatd be in daan
of being loal, if an euemj ahouM attadi f,
which woald b« a rart Ion to EDgland : sad
praying, that tbe said duljr of four and a half
per cent may b« applied to the san for which
It was giren, in order to tbe dclcncc and mm-
rity of the aaid aland.

It was ordered, That Ihe PelitioB iie on ibi
UUe.

On the I4lli of (he same mootli, cahod
GrauTille, from tbe committee of tbe whak
Hoase to whom had been cammitled the Bl
lor the better support of her majertj'* hoaM'
hold and of the honour end dignity of iha
crown, reported, that they bad dincted hia t*
moTO tbe Houae that an bumble addrcaaaiy
be made to ber roajeaty, that the doty or !■-

Bnt of four and a half per cent, ariuf ■
arbadoei and the Leeward lalanda, aa^NI
to an annuity payable to the lieira and sMpa
of the earl ot Kinooule, be applied fer iboR-
pairing and erecting aucb turtificatNO* sal
other public use* for the aafety of lbs mi
island* as her majesty shall direct ; andtbalH
annual account how the aaid duliea ahall bn*
been expended, may be laid before tbe B**M
ofCommon*. Andaucbanaddreaa waacfdtni
by the House.

And on the 30lh, Mr. Secretary VeniMK-
portcd to the Houae that such addresabanf
been presented, her msjeaty waa pleased la
say that she would gi'e directions aneordi*||lf.
It is obieriable, that the pensioe* giaald
in the early part of tbe reign nt'hiapreseatnt-
jeaty (George the Srd) to the family of tbe bit
earl of Clialham, end those aubsequentJy gnal-
ed to Mr. Burke, were charged a^ioa tbi* <atr -
of four and a luilf percent. Mr- Burke, is )^
veningto onenf his Hefcrin Billa (staLStG-
3, c. 83J, --'•- ■

This of the (iiur and ■ half per cents 'm
grace" [ihe duke of Bedford] ■' imigiM

e to c
granted to her majesty fur ihe better iiupport , bel'ure hi* grace w
of her majesty's houshold, atid of Ihe huuour i in my eye. It was luii in lue eye
and di^nityuf IhecrowD, ! who novked with roe. Itwastenoi

A I'elilion of the agents, planters, and ; On principle I did what was tli
merchants, concerned in, and trading in the ' ' "

island of Barhailues, ivns presenieil lu ihe
House and read ; setting forth. That there is a
duty of lour and a half per cent, on ibe com-
modities of the said island exported thence ;
whii'h was granted by an act of the said inland
in September lti63, fur the reparailon and
building of lonilicalinns, and defraying all
Other public charges incident to Ihe guvern-
■nent there ; which lie* been collected by of-
ficers appointed by the cnai miss loners of the
custom* in England, and applied to other
uses ; whereby the torliticalinos are run very
much out of repair, and other public necessary
works are unbuilt, aoil iheir magazine uo-
nrofided, so that, in case of a war, ihe said
lalaod aod all other the sugar plautaiioaa to

ipie what was lell undone wis oaiiiu^-
I did nut dnrr to rob the nation iif all InmliO
reward merit." Letter to a Noble Lord oa in
Attacks made upon Mr. Burke and his Pentitu
o.D. 1796. Burke's Woi ks, vol.8, p. H,i^
8vo edition.

The short-hand writer's report meniinw'
p. 239, coniainsofMr. M'DouBld'* aruimtfC
only tlie reply, p. 303, 4, 5.

U|inn the clause in the comroissiDn U f
nerul Melville (p. 347), whirh requires him w
execute bis ulhce agreeably " to ihcinilrK-
lionsnud aiilburiiies therewith Kirau lobm'
to such tartlirr powers, in struct ioo!i, and uilki>-
riiies, at should, at any lime therrato, l«
g^ninied Or apgrainied him under tbe k«^
aigncl and sign manual, or hy hb «nkt ja ■

JldJenda^—Cau of Home.

A. D. 177*.

inm

Hindi," there u^ tone rdvaMe obser-
ia iheCanadiaB Freeholder, ?ol. % pp.
fff. See, alio, fol. 19, p. 1168 of Ibif
on.

[>b8er?ab1e, that the words * in as mach
iy are printed thus separately in LofTt)
)ccur in the letters patent of July S20,
». 1250, last line but one), are somewhat
ous. They may mean * in so far as,'
y may mean * beaiuse* or * since,* there-
mi ng that the poll-tax mentioned in that
)f the letters patent was not contrary to
8 of Great Britain.

clause in the arg^oroent (p. 391) at the
ting that the language of king Edward
was, that every part of his dominions,
lis possession, was feudatory to him, is
lat too strong ; the passage referred to
1 to relate to Wales only.
I respect to the proceedings in Qno War-
ind also in Scire Facias) which were had
the North American provincial go?em-
tn the latter end of the reign of Charles
, and which are alluded to in Mr. Har-
argument, p. 299, see ?ol. 8, pp. 1067,

391, afler the passage extracted from
»ctaniation of October 7, 1763, it is ma*
t refer to what follows that passage in
Kslaf nation as set forth an the special

p. 241.

observations inserted pp. 331, 333, upon
msfteWrs judgment, were written by Mr.
ari»lial). As that learned gentleman is

of the king's sworn Serjeants, it is pro-
lat Edwards called him * one of his ma-
terjeants at law,' in contemplation of the
«Tit, in obedience to whicn the learned

to whom it is directeil take upon them-
hat drgree. Concerning this, tee Ser-
Wynne's Observations of the Antiquity
ftiity of the Degree of Serjeants at Law.
(4, I. 5. BIr. Baron Maseres has told

was inforinetl by Mr. Justice Willts
', that he did not concur in the doctrine
ord Mansfield in the case of Campbell

laid down, respecting the right ot the
o legislate antecedently to a renuncia*
luch right for a conquered colony.

Case of Horne,
pp. 651 9 et seq.

apsthe following extract from Doilson's
Sir Michael Foster may be thought to
illustration on the turn of Mr. Thnr-
lifid some years before this trial of Mr.
; and also on some of Mr. Home's ob-
us respecting the influence of an ap-
*nt to the office of Attorney General :
the Lent assises for Surrey, in 1758,
Jtment against Martha Gray, the keeper
t-Sheen gate in Richmond-park, of
mrk the princess Amelia, daughter of
lorge S, WM'thcft the ranger, for ob*

ftmeting at that gate e common footMy'
throogh the park, was tried before Mr. Justice
Foster, who greatly distingeished himaelf on
the occasion by his firmness and integrity. I
am happy to have it in my power to give n
particular account of the proceedings at the
trial, written at the time b]r a learned lawyer,
who hath since filled the highest station m the
profeuion. Mr. Thurlow, now lord Thortow,
wrote the following letter, the original of whidi
is in my possession, to Mr. Ewen, a nephew of
Mr. Justice Foster, then and for many yearn
afterwards, clerk of the peace for Wiltshire :
*< Dear Sir;
*< I write at the hazard of your thinking me
impertinent, to give you the pleasure of hearing
that of your uncle which in all probability you
will not hear from him ; I mean the great ho-
nour and general esteem which he has gained,
or rather accumulated, by lib inflexible and
spirited manner of trying the Richmond eause,
which has been so long depending, and so dif^
ferently treated by other judges. You have
heard what a deficiency there was of the spe-
cial jury, which was imputed to their back-
wardness to serve a prosecution against the
princess. He has fined all the absenten 20/.
a- piece. They made him wait two hours, and
at last resort to a tales. When the prosecutors
had gone through part of their evidence, sir
Richard Lloyd, who went down on the part of
the crown, said, that it was needless for them
to go on upon the right, as the crown was not
prepared to try that, this being an indictment
which could not possibly determine it, because
the obstruction was charged to be in the parish
of Wimbleton, whereas it was in truth in Mort-
lake, wjiich was a distinct parish from Wim-
bleton. They maintained their own poor, up-
held their own church, and paid tithes to their
own parson ; and Domesday- book mentions
Mortlake. On the other side, it was said, that
Domesday -book mentions it as a baron*s fee,
and not as a parish ; and that the survey in the
time of Henry 8, mentions Wimbleton cum ca*
pellU tuis annexis, and also that a grant of it in
the time of Edward 6, makes a provision of
tithes for the vicar to officiate in the chapel of
Alortlake. The judge turned to the jury, and
said, he thought they were come there to try a
right, which the subject claimed to n way
through Richmond-park, and not to cavil about
little low objections, which have no relation to
that right. He said, it is proved to be in Wim-
bleton parish ; but it would have been enough
if the place, in which the obstruction wae
charged, had been only reputed to be in Wim-
bleton, because the defendant and jury must
have been as sensible of that reputation as the
prosecutors ; but had it not been so, he should
have tliought it below the honour of the crown,
after this business had been depending three
assizes, to send one of their select counsel, not
to try the right, but to hinge uiton so small a '
point as this. Upon which, sir Richard Lloyd
made a speech, setting forth the gracious dis-
position of the king u sufiering this eante te^

UM]

16 GEORGE m.

AddemiatoAii Wabam^^

[1391

bclrinl. "Iiich be »uld ba» mpprcMfd »itk I b; Ibcir TUe, lanfi the wbele rmtm af juHin
ft wii^li; hremlli, by laAa'iog a uolCe p'tatqttixa ibrniiKh llir kinplon. Bc«irfra ibcniJBnMM
}tt Mil'red. The jndife »>^< be wtt lint of I to Ibe tul jcri, their jfnDlinp a kbU fn^u m
tbnt nfiiniaa. The iulijrcl is iniemlnl in luch | in elTrci ku iucniMihiDHii upon ihc nijal pt-
ipilidmeiiti M thnM liir couiinuJDK iiiiuancea, rogatite,"

Kmt canhavpiHireiiiedybulltiis.il tlieirrigbK , , ;„ _ v-t^ .» ti.- t =.._ :_ »i ir— j

be e«c..«d.ed ..poo ; -Wrel-re be ilioiild ' ,,1^°^, ," ■>"'^ '? r ?^"* '" ^»'- W*'"
ti.i»b II t denial ..rj"'"ice lo ««p • pn^cuUon ' f*" "eda.on i* the IMo^t^g puuge:
', Mbidt bis ttbute prerO|{alite "Tbemnien^eri iiereindkieilii]
After wbtclj, llie | iJie re'niuliuni ut ibe Huuse ot' C

Irue liillt were fuuod ■gainst llieiB, hit fonhtf
proceedinifi wrre itnppei) by (be AltaTBi;Gf
neral entering a noli proieguL Ai the t^
meuli urf^ by Mr. Adair, « ho ■■ irniiiil
for itie printer*, on ihenin^cauMafiiaMiba
meuure.ire eslremrij' (Mirioin, And dM|I»
rally bnuvn, we aball aobjniD Ibem far ikt »
torriialiuD of Ibe reader, end tor the bellcTt)i>
ciitatiun of tfaii and otbcr lellera open tbeiob-
ject of iliis imporliDt diainiie.

" Mr. Adair, ill pQr!>uaDt:cfirnoticr,illnM
Ibe Altnrney General, Mr. Ol' (irrr. tm ikt
171b of May, 1771, and after the iiMficiMl
unil an affidatii ut'Uie defendant bad bcca icii
Sliobe QB Cnlluwi ;_

" ll rnjulrci no arguments to ahev, llri
though Hie enlerini! a niitiproirqui on priim-
bona at the suit of Die kin^ only, iiin»
dnubleJ prerogiiire Of the crnwa ; yet Ut d
other prerogaliTn, il ii inleadeil lor the gnorf
gone] of the iiilijecl, anil not Tor the bindrMCi
or intprrnpiiontilpiililic jualice.

" It ji indeed a discretionary power, bolilii
lo be exercised nnt accordiiifr to an arbitmr
bnt a Mnnd and hgil diaereiiuD. Jt 1* fiir Oii
reason, l!Sr, (bat u ia not leri tn the wanUa <a-
price oratarouTile, or the arbitrary mill tft
miuiatvr, lo be executed at pleasurr, hatilil
depofiled at a fulibc trtist in the hind* oT Ikt
Alturnt-y (JMiiral, that iUp cxtcIh' >iI ri nu
b«!.liwis4bvbinkoii*le.lKe of ibo lawi >b1
cuiiNliluliuu of the kln[;dniii.

" Al»iiy i-easiHH iiiiiy l«^ Niii;crotieil whv iha
IMiwcr sbuiilil 1)1- iii'ist ap.inn^lv rxcKiiti a
caMKn|-'|irnsei^iiliuiil)y iiMlicltiifut.

"Though Hie. kind's iiainc is iirrpwin'r
iMvd ae llw jroiicral guardian ul' i

is itnothcr p;irly eontvmcd in in _

injure! |«rly, who n for the tniihl part the r<»l,
as the kiuK i^i ihc numinal pmit-trulur.

"Tlip praciiccionot'ciitcrini^u Qo/i;rnv,^i
on inilklinenlit is bin iil' iiiiii!erii il^iie.

'• In the I'Bse ci!«nil.liiid ami Smiili in ik
0th M...I. ■id. liiili. clii,.!" j»,iicf, ».ii.l, ' He
' hull kiiiiuii it l<L<>iit,'bt lerv )iarr| that tlir tl-
ti)rney Geni'ml !iliiiui<l ■■nti'i' noU yirmrvii "p"
iiidi<Mtiit'Ui«, and ilKti it bp>^aii iirst lu be prV-
riied ill l!(o I.Ltler iii.l ol kiii^r Lliarlen ilir Wi
rpt|rn,nndb(!arilereil iTi'i-fdc^ms to be ieveli(<l,
if any were, in .Mr. .iiiomiy I'iilmef ot' >»■
till|(lln Ill's lime ; niid at HiiuUier ilav be ilrftir-
ed. thai iu aII kiiii: Cliarlts ihe Isi's i,uKib»t
uni n^> precedi'nt uf a noli pro^guioam^

" I therefore submit tn you, that (tilling bnc
to ilneriuinc u|M)n Ihe ijiphcation of a |Hiii«H'
rcccut in itt cuaiiueueeuteiit, umI nt' vbkb **

<IOM lint eilrnd tu purdoi

Cf idenre wat i^iic ibraui[h ; and the judf{i

•immt'd up khurtly, but clearly, for iba prote-

" It Kite me, who am a ilraD^ lo bin),
■reat pleaHure to Imr, that wc haie one Kn^-
riiih Judijc, wbum nolhing- can tempi or rri^hlcD,
ready and able la bald up ibe lawi of bii cuun-
try ai a|[realatii<:ldar(lieri);btsof llie people.
I preMiiiM itiat it will (jire yuu tiill i^reaier lo
heur, that y«iir friend and relitioa ii that jud^e :
uhI that ia Ihe only apaloKy I have to make
lor Imublin^ you wiili thii, I am, disar Sir,
your moat humble cerrant, E. Thublow.'*

" Fyc-litt-rourl, Inner Temple,
April n, 1758."

Somewbal connvcled with what Mr. Thur-
low reijurla Mr. Justice Foster to have laid uf
the noli proHytti, are the ful1uwiQ<r itarliculua,
which Miave exiracieil from the 3d Tolumt of
Mr. «. Wundfair* recently |mblislied eJilion
«r Ihe Letters of Juiilua, and the I7th folume
of the Parliamentary Hlxtnry.

Cnmby, lord mBvnr (nee hia Caw.fol. 19, p.
J13T}0Ji*Kr aijd Wilkes, aldermen (if Lnnduo,
haTini; di<irliari(ed a i>rinier, who in the ciiy of
liondon, bad hecii by n mefiBeiif^r of Ihe House
of (,'uiiimoiis Bp]irelieiid<'d fur lireach of priri-
legn nf parliaiiiciil, and having Bi^ciu'il a war-
rant ufciiniiiiilinrnl uf the nieshciiiffY (wbiim
howe*cr they discbaTtiil U[i'in hail) to «ne of
the city prisiiiis liir ni.->aii1t nnd faliie iiiiprisoii-
mcnt (if tliii |>riiiter, the Hmise of Cimnions
ordered, " That James .U'irgan, clerk of the
lord mayor, du ut the tabic expiiiii[c tlic mi-
ll bvliire the Iwd mayir, relalive to
ii;er of IbiH House gii'mfC security
for lii« a))pearanci! nt the ikrxt general (iiiatlcr
aiMsiiius iif^thr piMce;" and be D<'«uriiiti<'ly at
the liihle expun^riid tlie same.

" Thnt U'l other pmsecutinn, siiil, or pro-
cceliii^, III- rnniiiitni^il, iir cnrriid on fur, or
«n ncr-iiiiil uf ilie .said jirult:ndt;d assaullor liklsc
imprisunnu'iit."

Junius (.Miscdlniipnus l^lten, N" !)j, dated
91b April 1(71, and •.ii^iiiil A VVIiitf) in rcldli'iii
lo thuiic transiicliunii, writes, " I wixti ihdl
crave anil mibiT nu-n would con-ider, indcpen-
Mutllv iif tlif oth'T qut'iitinus liefure ui, bow
far this particular piccvdtnt may extend. If
the House nf t'oininims may iiiltn'|H)bf, in a
Miiitli! ioBtaiicr, belwern Ihe xiilijrrl, w liii iiim-
plaius, and ibe Uus. which oukIiI id (H-titnt, I
■ce nu M-aGOu why they may nol, at any lime,

iiLeted. Hee '2

Til mayor
iilc« lakeii

f S9S] Case of Home.

Are told by so respectable an authority, that it
has been looked upon as a hardship in itself,)
Toa will require the most cofrent reasons to in-
flttce joa to exert it apon this or any other oc-
casion.

*■ Those reasons most arise either from the
(»ndact of the prosecotor, the personal situa-
tion and circnimstance of the defendant, or the
flubJ^i matter of the prusecuiion.

** I do not find from the affidavit of the de-
ffMlant, which is the only information I have
bad of the ip'onnds of his application to yon,
that be complains of any particular hardship or
oppression, arising either from unnecessary de-
Iqr, unusnal rigour, or any other misconduct
ifi the prosecutor : he must therefore expect the
extraordinary interpOsitioYi of the prerogafire in
hh behalf in this instance either from something
pecoliarly farourable in his personal situation,
which entitles him to the protection of the
crowta, or from the charp^ af^ainst him being
tofilly groundless and unfit to be discussed in a
court of justice.

** As to the first of these points, if we con-
sider Mr. Whittam not being a magistrate's
cohstabley or any otiier officer intrusted with
the execution of the laws, but acting merely in
• private capacity, as wantonly assaulting one
of the kin(j;*s subjects, in his own house, who
was not even accused of an v crime, and vio-
lently attempting to deprive iiim of his liberty ;
if, I say, we consider him In this point of vievr»
he can hardly be thought a fit object of the
roj'al favour and protection: bntif we view him
io the light in which he has thought proper to
place himself by his own affidavit, he wiU be
found, if possible, still less entitled to that ex-
ertion of prerogative for which he has applied.
He tells von, Sir, that he is a messenger of the
House of Commons, that in that character, and
sicting under the express orders and authority
of that House, he did the fact with which he is
charged in the indictment. Does he mean, Sir,
tliat yon should consider this as a reason for
granting a noli prosequi ? When was it hearri
Eefore that an exertion of prerogative was ne<
cessary to support the authority and privileges
of the House of Commons ? When was that
House known to sue to the <;ervants of the
crown to screen th.-'ir officers from the laws, or
protect them from the indignation of an iucon-
sidrrtble printer ?

" I believe when any of their priviIe<Tes have
been realtj^ invaded, 'th^y have never been
found wanting either in pcJwcr or inclination to
■dpport them ; and I am satisfifd that if the
House were now sittini;, 3Ir. Whittam would
not have dared to make an application so ma-
nifestly tending to expose their privileges and
aatbonty tu ridicule and contciiipl. Hut, Sir,
I am persuaded thnt the honour and di^^nity of
the House of Comuinns are safe in your liHnds,
AOd that you will suffer no act to proceed from
^rou that can throw even an oblique imputation
upon them.

" If there is for these reasons nothing in Mr.

ITYiittant's personal situation} or circumstances,

VOL. \X.

A. D. 1776. [1394

wliich can entitle him to an extraordinary in-
terposition in his favour, it remains only to be
considered whether any motive can he suggest-
ed from the subject-matter of the prosecution to
induce you to put a stop to it by an exertion of
the roval prerogative.

*' l1)e charge set forth in the indictment, and
not denied by the defendant's affidavit, is I'ur
assaulling and imprisoning the prosecutor, Mr.
Miller. It will not be contended that there
appears any thing upon the face of the indict-
ment oppressive, illegal, unfit to come before a
court of justice, or which affords any motive
whatsoever for granting the noli prosequi ; the
reason, therefore, if any, must arise I'roin the
matters set forth by the defendant's affidavit.
The affidavit states, that the defendant is one of
the messengers of the House of Commons ;
that the S|)eaker's warrant for apprehending
the prosecutor wns issued by order of the
House, and that in consequence thereof, the
defendant, to whom the warrant was delivered,
did make the arrest with which he is charged
in the indictment, and that he used no violence
in so doing other than seizing Mr. Miller by the
arm, as is usual in arrests.

'* I apprehend it is uot incumlient upon me
here to consider, as I submit it is not com|ie-
tentfor you. Sir, to determine in this summary
manner, whether the matters here set forth do
or do not amount to a good defeuce, or legal .
justification. We are not now to try the cause ;
but you. Sir, I am confident, will not inter|iose
the prerofi;ative of the king to prevent our try-
ing It in the regular course before the proper
jurisdiction, unless the prokccutioo, as it now
appears before you, is so clearly auit uianifestly
groundless, andf unfit for discussion .iu a court
of law, that it would be an abuse and uiockery
of public justice to bring it to a trial. Jf the
authority under wiiich Mr. Whittam alleges
himself to have acted was not competent to
authorise the fact which he cf*miiiilted, or if
that authority never was in fact delegated to
him, in either of those cases the prosecution is
well foundf^d in \ii\\ . If an}' doubt or question
can be raised on either of these points, it is not
so clearly groundless as to justify the putting
a stop to ii by prerogative before thobc qiU'S'-
tions are legally d«'termioed.

** It might well be questioned, whether the
House of Commoiib has any |N»wer by the laws
or constitution of this kingdom tu aiithoriKi' the
issuinff of such a warrant a^ that under colour
of which Mr. Miller wan apprehfuiled.

'* It iiiit^ht be said, and h>ip|i«)rti il ton by the
greatest iiUthoritii*s, that thi*y cannut by any
act of theirs singly, create any new power oV
privilege Io tlieinselvcH. That there was m iiiii«*
when they e%i(!<?ntly ni'ithcr pussessi'd nor
claimc<l any such power as that in que stiou ;
and when the authority of nn act oi puiliarumt
was thoiiifht nf^rssary t'» pnnish eifo so un-
di^niahle n breach ofprivilrirc. '>^ *hi' .1 Aauliing
the person of a meinhir H:(i'tiiti!>ir uiMin hn
duty in parllameut. Tiie *'t:iiiitp, .'^-:r, wlwU I
hero allude to, is the ] Itii ot II . 0, c. 11, which

lb

UBS}

nOEOBOBIIL

wmmfmmwhm thnr M Ml
An' CM bijr M ciiMr ■
qgMU. AHtlMMd
miif if il were mcmmw to 4iif«to Iht
tfly ef llie Bmme ef Ciwmim to mm Iht
MrrMi ftr Hm BBwifwt ef Mn Mi
iMitWMtfeiMlftr
lUl wbcilwr Uwy bad,
Ibcjr Mfcr MiiftetfifetiM
Mrttovily wbfltoMfCf to Miks lbs

•TMiMllhtpem,

«TW fwiMl, Sr, Mte coImt «r wUdb
■r. WMmb MlM, if • warrMi pMNlMif to

BaiiMiM n pofWHyMaav aaanMrav IIni Hmhs

kbrtcitod « tba wanMl itodf, if far taluaf
Mr. Miller iato tbe eoitoij of tbe 8erjtMi a^
Araw, ar liif depatjr ; aad Mr. WlMttaai it 4a-
■criM IB tiM dnvraoa af tlM veiy eaoM war^
raat to be aeiUwr tba aM aar tbaaclicr af tlieie.
Ma aiiiberity wbatoearer ohi ba eeotejeri to
Mf. Wiritttn bjr nrtaa ef ao enler, ia wincb lie
if nalMOiedyaiMi irbieb parliMlariy paiata aot
certoia pavaaM, lo eaatradidiM ftooi all eiliera.
Tbie warraal, tbereftra (ea fiir ae il relatea
to Mr. WbiUam,)ap|warf tobaitooed by tbe
Speaber, merelj ^ bia airo aatlNNrilj, uaav*
Ibarized by any arder af tba HaMa ef Ccm-
moof. HastbeSpealwruypawertoeanMBtt,
oaleff be ilerivea it fton tlie ardeis af tlM
Bailee f If lie baa oat, wbieb mnatJiegraQlBdt
be is boaod ttrictly aod literally to purioe that
order which creates hie autbonlv : at far as he
exceeds it, he acts without aiithority himself,
aod most clearly can coof ey none to any other
|»erson. Mr. Whittam, therefore, in this case,
acting without any legal authority whatefer, in
the arrest of the prosecutor, a prosecution
grounded upon that cannot be considered as
totally foid of foundation. But supposing for
a moment that the prosecution was frivolous
and ill-grounded, I submit that that alone would
not be a reason for the extraordinary ioterposi-
tion of tbe crown. If it would in this case, it
must in efery other; e?ery defendant who
fancied himaelf unjustly prosecuted would ap-
|ily for protection to the crown ; and atoMat
every indictment must first be tried by tbe
ilttomey General before it could come rega-
larlv into a court of justice. I presume you
will conceive it waa not for these purposes that
this prerogative was rested in your hands ; and
that there must appear some strong reasons
peculiar to the case to shew why it is improper
and unfit for public discussion, besides merely
that of tbe prosecution being ill-grounded, to
induce you to make tliia extraordinary interpo-
attioo. I Bubanlt to yau. Sir, with great derar-
4acf| tbatlbmappeaia no such reaaona iu tbia

ariM

ttar^; aiidtba
baaaalalnMlii
tba

astlMitof aM lactaiaiijr
tiMafittoMr.WbiMM
aasfiaocd af il by a di
«riaw.

ly people latoaa

uNMi tha nwa^

fim Mbaut to jraa, Sb, fbi

VM, aa AliaiMy OaMial. wS sat tbiak

to Ibia eaaa to gTMl a Mfi/raaafML'*

<' Mr. JUicrme^, QmtnL JH yw
uy afideooaf^

^ykx.AiA. WoaibrM«lhcr
Ibw wbal appeals bi tba afiteritaribadB-
fendant bimadfy and tba warrant to which 1
refers.**

*^ Mr. Attorney GemeroL Yoaaraeztoeaidj
right in this, that it is not at all a fit tbiag fir
tbe Attorney General to try ettber tbo Act apoa
which the defendant ia iiidicled, or to deieh
mine the law. The only question ia this, whe>
tlier it is fit for tbe king to interpoM aa the pn-
secutorofthiaofleocer Tbal, Itabeil,sboaU
be the ground of your argunie&t, and tbe poist
upon which I expected aatia&clioD. The si-
davit itself states tha messenger of tbe Hosm
of Commons to be acting oi^er tbe aothoritf
of tbe Honae of Commona ; and if tbit was tks
only way in wbidi that qncatioo oonld be
brought before a court of law, I aboold hs
obliged to give an opinion wballMr it ought, «
whether it ought not. .

« The only point I bare to conaider ia, wb^
ther it be fit for the luime of tbe oiown to aa*
pear in proaecnting one who appears to baM
measenger of the Houae of Cooimoaai aad a
be armed by the authority of that Hoasa ftr
doing the very thing be baa dona aader Ito
orders of the House? I don't BMaa to pM
over the objection wbicb bM boM nada^ Ibil
the Speaker of tha Hoaaa, by oidan af lbs
House, diractio^ tba waoaailaa

' ■. -.^^

lao7]

Cau of Home.

A. D. irze.

[13!»

ftamed in such order, wbeOier that order extends
only to arrestiiisr the prosecutor, and taking
hinn into the custody of the Seijeant at Arms, or
his deputy : I dare say I take Mr. Adair's oh-
jeetion perfectly right ; the order of the House
IS fortaldng hiro into the custody of the Ser-
jeant at Arms or hb deputy ; and the objection
IS, thai the person in whose custody the prose-
cutor was originally taken, is neither the Ser-
jeant al Arms, or bis deputy ; and the doubt
yoQ raise upon it is, whetner the Speaker of
the House of Commons can authorise another
persoo to arrest and bring him into the custody
of the Serjeant at Arms, or his deputy ; for the

a east at Arms, or his deputy, is tne proper
the only custody 1 know of betongiog to
the House, and the gentleman's argument i<
that in point of the arrest it cannot be made
without the Serjeant, or deputy Segeant, with
resnaot to the orders of the House ol Commons,
ami the direction of the warrant by the Speaker,
which is a question of law to be sure. It has
heoi constant in point of practice for the mes-
aengera to be employed (in the orders of the
Mouse, and for other than messengers to be
emplayed) upon the ?ery same occasion. There
ia nothing so constant as the messengers ail to
ba employed: there are sonne few instances
where more than the messengers hare been
cmptoycd upon these occasions. The difficulty
vpoQ it was, whether they should or not be in-
■erted in the warrant: or whether if they
were not inserted in the warrant, it could be
csonatrued under the general description of the
ScHTieant at Arms, or his deputy ; or whether
that authority could go to warrant those which
might be appointed by the Serjeant al Arms, or
bis deputy, upon that occasion. It was thought
more proper to make a warrant directed to the
person to be empk>yed, though it was men-
tioned in the orders of the House that the cus-
tody was to be that of the Serjeant at Arms, or
bis deputy, according to the usual form of their
orden.

** But the only point for me to consider is,
bow far it is fit the -king should be the prose-
cutor of a serf ant of the House of Commons in
the exertion 'of a pririlege which they now
claim, which they na?e claimed for ages, and
iMf e been in the possession of for ages, and that
the king should be brought into a proceeding
•gainst the servant of the House as a prosecu-
tor. The noU pro$equi is called a prerogatire
right of the crown ; it amounta to no more
than this, that the king makes his election whe-
ther he will continue or not to be the prosecu-
tor upon an indictment, and the noii prmtqui is
entered in the same words in case of the crown
as of a private person. The entry upon the
record is exactly the same by the Attorney
€leneral as by a private plaintiff upon record in
any civil suit.

*' I did expect that you wouhl have given me
aome reason for entertaining an opinion, that it
vras decent and fit for the crown to continue
and stand forth aa a prosecutor for the messen-
ger of the House of Commons acting under

their direction, in maintenance of a privilege
they have claimed and held so long. That ia
the only point I put it upon. The affidavit aa
made by the defendant makes it necessary to
consider him as an officer of the House.

<* I did not indeed expect any disputes upon
it, or that it would be pul upon so small a
ground ; the reason I expected was, that it wan
becoming an officer of the crown, in the name
of the crown, to continue a prosecution by the
crown against the messenger of the House of
Commons acting under the authority of thn
House of Commons.''

** Mr. Adair expressing a doubt whether it
would be proper for him to make any reply to
this, the Attorney General said he should be
glad to hear him.

** Mr. Adair. With reffard to what you
have suggested, it is true the^ entry upon re-
cord is tne same in the case of the crown aa
of a private person, yet in a prosecution by in-
dictment the crown is not solely concerned.
To make the case exactly similar, it should be
an information ex officio^ or any other really
and truly a crown prosecution, and then tlie
' entering noli prosequi upon that, would be the
same as upon private actions. But in the case
of indictmento the king being in fact a nominal
prosecutor, though his name is necessary, and
the injured party being the true prosecutor,
who applies to the laws of his country for jus-
tice against the offender, who has violated those
laws and particularly injured him : if in that
case the king puts a stop to this prosecution by
withdrawing his name from it, it is the same in
effect, though not in form, as if he sent hia
mandate, and said that prosecution should not
pfo on : because if he withdraws his name from
It, that prosecution cannot by ihe laws go any
further, the prosecutor himself cannot proceed
in his own name ; the withdrawing that name
has the same effect as the actual interposition
of prerogative by the Attorney General, and
operatea the same as a pardon. Mr. Whittaui
being a^eged to have acted under the authority
of the Hoose of Commons, to have had a war-
rant directed to him ; the question is not whe-
ther the warrant is legal or not, but whether it
is proper for the crown to put a stop to that
prosecution, and whether tne privileges- of the
House of Commons being said to be concerned,
any interposition of the crown be necessary to
support their authority. If Wbittaro has acted
in pursuance of the order of the House, if those
orders are such as the House has a competent
authority to make, I submit that it cannot be n
doubt that that matter pleaded or brought in n
regular manner before a c<»urt of justice would
be a sufficient defence. If the courts of law
sre of opinion that the House has that autho-
rity, and that it was regularly delegated to
Whittam, they would necessarily be of opinion
to acquit him ; and U|M)n that ground there
appears to be no necessity for the crown with-
drawing itself from a prosecution, which by no
pomible means can prove oppressive or inju-
rious to the defendant. If he haa acted under

feMpw, §ar ihe Mke of justice uid
ne hUc^ Ami juilKmcni ab

tUHMMolM-don II

■ It^ utkmkj, he iDDst be If^ally oe^uiUed
m a toort of juatfee. But if lliv aulhorii; is

re uid the liberty uf

il abouIJ be ura-

• Fuuri III' law. I beiievt:

— J. iiol cniiienij. ibat Ihc <fe*

finiMM kn beta guilty of lliet kind nf ofTence,
Ibr wltieh U Baug id progecuie bim wjih any
tfgouri badDD'tiHran to oppreu bim, or ]>ru-
MMtrurdWnkeotpuniihiututonly; whuUter
It u 3^ or S,ODO ia indifferenl to bim ; ibe ooly
ntoffbewi^MMtobaTetbequeBlioD declijtil
W ■ legal caapolctii JimiidictiDD. I Til comc»
VwaUri^ befbra the Courl, though i>«rIiii(>-<
nm diia Miotmcbt il could uoi, but iritduci,
Ik quMliMi b, wb«lbcr ilie Socaker of Hit

goiiae of Coiaawka hud a luRieicnt t«eal lu-
otitj to ■HlboriM' ib«l arrcBl, ur wbelbo- the
JlcTnidaiit baa actually arlti iiui)'-r ih&t autlio-
My, HL'b aa it was ; »ud 1 aulnnii lo your
MuaidmUiaD, wbellier, upon that |ii>int, aucb
InterpodtioD aspean lu be ueceiiHry mlhi« case,
Htber npoa behair ol' Ihe delviiJanl, or of tlit
i«Irilem«ribe Ilousc uf Commons."

' " mw. Attanug General. 1 doo't unl it upon
,^t«idei1»eai'laAtr. WbiLUm, ur the point or
aririlege of (be Hoose of Coiutnon s, but merely
■Don tM fbot of decency, as the circumilance
ipctbaenwntaikiilf a part id the prosecution
j»)ndi tbcy imul do if ibey go oa wiili it)
"iltlMiDMataeer of the House of Com-

AJdftf^0.rPf»if''^''*^

m\

man, aodnc nnidar the auibnriiy of ibe
nut of dm SMakar. punuant lo aa order uftlie
Boon."

Mr. Oa Onj, tlic Altoroey GenerBl, was
•ftemarda Cbiaf Juslice of (lie Coaimon
JMaaa, ami Hr. Adair, aubaequeniiy, Recordei

lam Eorry lofioil in Mr. Gilbert Wakefield's
BUrooira of hii own Life ibe followiog pas-
aa^e recpecling the Kicliniuud Purk Irani^-
aettona:

" By one of those scandalous manarchkul

encroschi^BU wbiob h»ie di»tia|[iuslied lh( i
present reigu at Ricbuiood, and esseotiiS; in-
paired die beamy and conteoience of tiiailM.
reiilriul Paiadi*''. tl>f fiMflHay tbrou^ Sic^
moiid Park U WimbJcdda, "t-aat Sheen, aa^
Kingston, waa sbui up, aittl do pusag« ak
lowed widiOQt a tic)[et-" (S»o. 17S2. p- itS^
It has bern Seen ibat Ihe nbsiruclioo >]f
tnaJe ID the rei^o [>f kin? Cear|{e 3. I hi^
DO su^picioo that Ur. VVui,eK(Jd desiyneil q|
misrcprescnlaiion. I oWrte that Dt. I>ita|^'
iu big preface lo Dodsoa's Life of Foaler, aif
a second ediliaa (1804) of >Vake6dil't W^
moira: ihatedilion, 1 bclicTe, I oeier taw.

Pi 6BRi Fbt WM9 coMfnnMf nit la^Aii
abancMr af lkdn«x> Me fnlop H«iMi
mA (Amfl U|ll,'lSJM) is > Afeale, ia Dml
FNtf. inoAlbaMI Ntif-M fiw. 3, c. 43), la
aalhicam Ate alberraBn 'oT Cita eaaaMMJ
■ubrfc T^pecti^ limWaMba «dmiUad^irii

OfdeacM cndpricaL

Wbi 1813; >rbe daie 6r« 'elvk abaadwi^
bii cterki^ ebriraetvi-V and o^farin^ oa a lif
proftaiiaa,'orfxenMwsl»eBUlH. naa^-
dcadW aa^^eitb«.ib ihe «»%e<r*t
pnMeiiniHnmB mtMeoTCoiuaMiao ttaaa*
W a titaMi«a«ii dUbU^Dtr tf Uw M*
[A nAMlfwta^: >• 1? N«7 AiCU

P. no- Tbff ^llnioa, to «ba trnit>Nat<(
Ibe PMvUvaaA hv IM amWiiilioy «(V«db
I apprabaRd, otiatei miba8fra)0MtehKb,«
FebruaTv 91, 1TT7, wh pmched by arcb-
biabop Harkbau), beti>r« the iocorjioralcd Sa-
ciety for propaptipg the Goapel in Fcrtip
ParU, which sennpD, in compljuw wiib i*
requeit of tbe Society, waa ptiUisbed by ik
praadiar.

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